Friday Talking Points -- The Questions We Wanted To Hear Democrats Ask Kavanaugh
When we thought about what to write in today's article, we had a pretty good idea of what we were going to say. But then, as sometimes happens, events overtook us. As of this writing, the Senate Judiciary Committee has now voted to recommend Brett Kavanaugh to the full Senate for a confirmation vote. However, while Senator Jeff Flake did vote along party lines, he also apparently demanded something in return -- which was precisely the thing Democrats have been calling for all along: reopening the F.B.I.'s background investigation into Kavanaugh, due to all of the new accusations against him back when he was a student. Almost immediately, Senator Lisa Murkowski backed up Flake and said she too supported letting the F.B.I. do their job before she would be willing to vote to confirm him. Since the Republicans only enjoy a 51-49 majority, two defections is all it would take for Kavanaugh not to be confirmed in the final vote.
Chuck Grassley, the chair of the Judiciary Committee, bowed to the inevitable by punting the football to Mitch McConnell. This was appropriate, since Grassley has now done his job and secured the committee vote -- the floor vote before the full Senate is entirely up to McConnell. The rather surprising thing is that Donald Trump also completely deferred to McConnell, saying he'd agree to wait if the Senate wanted to delay the vote. Later, Trump completely caved and instructed the F.B.I. to reopen the background check into Kavanaugh, which is supremely ironic (if you'll pardon the pun), since this was exactly what Republicans have been fighting so hard against for the past two weeks. All the histrionics from the Republicans were ultimately for naught, and the F.B.I. will now be allowed to do their job anyway. As the Democrats have been demanding, all along. And as should have happened two weeks ago.
Faced with the reality of the situation, McConnell was forced to delay plans for the final confirmation vote. As of this writing, he still plans on keeping the Senate in session and holding the first procedural vote (not the final vote) tomorrow, but will no longer schedule the final vote for Tuesday, as he originally planned to do. Flake and Murkowski will assumably vote to proceed, while withholding their final vote decision until the F.B.I. reports back.
This, obviously, is an extraordinary turn of events in a week chock full of extraordinary events. In fact, this week was so extraordinary that we are going to completely dispense with our normal weekly format today, because we are as overwhelmed by everyone else by rapidly-developing events. So there will be no awards handed out this week at all, and we're turning the entire Talking Points section over to discussing the Dr. Christine Blasey Ford / Brett Kavanaugh hearing which took place yesterday. This was a momentous historical event, so we plan to focus exclusively on it rather than trying to break it down into discrete talking points.
In other words, our entire outline for what we were going to write just got tossed out the window. So it goes.
In a normal week, this introduction would run down all the important events of the past week, but this week everything just paled in comparison to the import of yesterday's hearing. To be sure, other momentous events also took place during the past week, including President Donald Trump literally becoming the world's laughingstock while giving a speech in front of the United Nations General Assembly, Trump accusing China with no evidence whatsoever of meddling in the 2018 election (while simultaneously refusing to even mention Russia at all), the U.S.-China trade war escalating even further, and Trump giving only the fourth full solo press conference of his entire term in office. Plus the ongoing drama between Trump and Rod Rosenstein (Has he quit? Is he about to quit? Will he be fired? Stay tuned!), a budget standoff averted by Trump signing a budget bill that gives him zero money for his border wall, and another big tax cut bill passing the House (for purely political reasons -- nobody thinks it has the slightest chance in the Senate, especially not before the midterm elections). Oh, and Bill Cosby went to jail, to begin serving his sentence of 3-to-10 years. In any other week, any single one of those stories might have been grist for our weekly mill here, but at this point who even remembers any of it?
Yes, incredibly enough -- with all the rest of that going on -- it was still a one-story week. We already wrote our snap judgments about the hearing yesterday, from which we are confident of only a single prediction: that in 20 or 30 years, people will still immediately recognize the name Dr. Christine Blasey Ford. No matter how it all plays out, she will join Anita Hill and Monica Lewinsky on the list of women who changed politics forever because of sexual misconduct or allegations of sexual misconduct. Nobody today has to explain who Hill or Lewinsky is, because we all already know. That's how it will be for decades to come with Ford's name. At this point, that's the only thing which seems absolutely certain.
Keeping that in mind, we will now attempt to put this week into some sort of political perspective. As we've already mentioned, by doing so we risk events overtaking our writing, so if any of this is outdated by the time you read it you can understand why.
Volume 502 (9/28/18)
Like many Americans, we spent yesterday riveted to the television. As with most history-making events, it didn't even matter what channel we watched, because there was only one thing being broadcast -- gavel-to-gavel coverage of the Senate Judiciary Committee hearing. We are dating ourselves by even pointing this out, because before cable television existed, it was extremely rare for such a thing to happen, especially from the world of politics (as opposed to, say, the outbreak of a war or natural disaster).
The country all but halted in its tracks to watch this hearing. Wall Street was even reportedly somnolent, since all the traders were ignoring the serious business of making money to watch what was happening on television. People are already pointing out that it was one of those days where everyone will remember where they were and what they were doing when it happened. Personally, we were planted on the couch from beginning to end, and we didn't miss a minute of what happened.
Even after a night and a day to process what happened, we still find our reactions are rather disjointed. So we're going to try to start from the big picture and work our way down to the actual details of the testimony itself.
When the week began, there was only Christine Blasey Ford. By the time the hearing happened, though, two more accusers had publicly stepped forward. These two accusations remained in the background during the hearings, without ever really being directly addressed.
Two things stood out from the early part of the week, before the hearings began, both of which pointed out the absurdity of the position Republicans were taking. The first came from Senator Sheldon Whitehouse, who summed up the Catch-22 nature of what the Republicans were trying to get away with. He tweeted this out shortly after the second woman had come forward:
Yes, it was unbelievable, and it remained so throughout the hearing. Without employing Orwellian doublethink, you simply cannot coherently argue both that there is no corroboration and that a further investigation would not be helpful in corroborating either his or her story (take your pick). Screaming "there's no evidence" while blocking an investigation which could uncover such evidence is either Orwellian or belongs in Wonderland with Alice and the Red Queen (again, take your pick).
But the highest level of chutzpah came from Sarah Huckabee Sanders, who made the following statement on behalf of the White House -- on Fox News, where she knew her boss would see it:
Um, yeah, Sarah. All except one. Again, we revert to Orwellian terms, since the entire Republican Party has obviously thrown the sordid history of how Merrick Garland was treated right down the memory hole.
Republicans may have conveniently forgotten this episode, but Democrats most decidedly have not. As many scathingly pointed out to Sarah, on Twitter.
The Republican position was simply untenable, no matter how you looked at it. They tried distraction; by complaining mightily about the timing of the accusations, about Dianne Feinstein, about politics, about some sort of left-wing conspiracy, and about just about anything under the sun that wasn't actually about the accusations themselves. In the end, no matter how much bluster they brought to bear, it simply did not work.
There is one thing the American people generally agree upon, no matter their political stripe. Just like other vague and nebulous political terms (e.g.: liberty, freedom, rights), it is hard to actually define, but most voters agree that fairness is a concept that both sides of the political aisle should strive for. And no matter how hard Republicans tried to change the subject, allowing Dr. Christine Blasey Ford to testify was seen as fair by just about everyone whose viewpoint wasn't so tainted by partisanship that they still were willing to give the benefit of the doubt. Which is a vast majority of the actual voters, no matter what the pundits may actually believe. Hearing her out was seen as fair, which is why Chuck Grassley had to back down multiple times from his own self-imposed "deadlines" for working out the details of the hearing with Ford's lawyers.
Also seen as unfair was the Republican insistence on refusing to let the F.B.I. investigate the claims. This position also became politically untenable today, as everyone from Donald Trump to Mitch McConnell to Chuck Grassley finally had to admit.
We have to admit that we weren't all that impressed by the Democrats on the committee insisting on focusing their questions (and their metaphorical spotlight) so intensely on the question of having the F.B.I. investigate. They only had five minutes each to ask Brett Kavanaugh questions, and we felt that a lot of them wasted a whole lot of time essentially asking the same question over and over again -- a question that Kavanaugh refused to answer. After all, it wasn't actually up to him whether the White House directed the F.B.I. to reopen their background investigation, and it wasn't up to him what Chuck Grassley or Mitch McConnell did.
But we were wrong. We're certainly not above admitting that, now. Because the strategy worked. It convinced the one guy -- Jeff Flake -- who appeared convincible, that the basic concept of fairness absolutely demanded letting the F.B.I. do their job.
Of course, by the time Flake acted, the tide was already turning. The American Bar Association called for the F.B.I. to investigate, immediately after the hearing. So did Yale University. A prominent Jesuit magazine, America Magazine, rescinded its endorsement of Kavanaugh and joined the growing chorus calling for the F.B.I. to investigate. Perhaps most convincing were the two brave women who cornered Flake in an elevator to heap shame upon his just-announced decision to approve Kavanaugh in the committee vote. But whatever changed his mind, once Flake stated his newfound support for an investigation, the Republican stonewall immediately crumbled. Lisa Murkowski immediately backed him up, and so did Susan Collins. Grassley, McConnell, and Trump all fell into line with blinding speed. Rarely do you see such an all-out political retreat happen so quickly, especially from Republicans.
As for the hearing itself, we have to say that the Republicans did largely avoid being portrayed as hostile or demeaning to Ford, or to sexual assault survivors, or to women in general. They did so by hiding behind a woman's skirts, so to speak, in what can only be described as cowardly fashion. They hired a sexual assault prosecutor to ask Ford questions rather than ask their own questions. To put it mildly, she didn't do such a hot job for them. But her appearance did avoid outright sexism or hostility towards the witness, which was the main reason for hiring her in the first place. The only stumble happened away from the hearing room, when Orrin Hatch called Ford "attractive" and "pleasing" -- terminology that was not exactly appreciated by women. Hatch's office quickly walked back his insulting language, and (astonishingly) he turned out to be the only Republican politician who stuck his foot in his mouth in such a fashion all day long. So just on the level of "please save us from our own inherent sexism," hiring the prosecutor turned out to be a smart move for the Republicans on the committee.
Part of the prosecutor's problem was she simply was not used to the committee's format (which is pretty standard for congressional committees, we should mention) -- five-minute question periods which alternate from one side of the aisle to the other, arranged on both sides by seniority. Prosecutors work in a much different environment, where they are used to slowly building a case step by step, and then drawing a big sweeping conclusion at the end (usually: "this witness simply cannot be trusted" ). She could not follow this playbook given the constraints of the committee format, and she wound up failing to ever reach any sort of conclusion about any of what she was asking Ford about. In the end, Ford's testimony was not undermined in the slightest by all of these rather weak efforts.
Surprisingly, when the committee reconvened after lunch, the Republicans continued to let their hired gun ask their questions for them, during Kavanaugh's testimony. But when she started asking rather pointed questions about the drinking culture Kavanaugh apparently came of age in, they abruptly yanked the plug on her and started unleashing political tirades instead. Leading off this effort was Lindsey Graham, who has personally tossed down the memory hole pretty much everything his late friend John McCain ever stood for. Graham's five-minute tantrum will long be remembered from this hearing, that's our humble guess. While other GOP senators tried to match Graham's outburst, none of them really even came close.
Democrats, on the other hand, didn't achieve a whole lot beyond hammering home how unfair it was that the F.B.I. was not being allowed the chance to do what they do so well. There were plenty of subjects they failed to address in their questions, most prominently the culture of drinking that Brett Kavanaugh was -- by his own admission -- a part of during both high school and college. Kavanaugh gave repeated answers to questions about this culture that were never followed up on, even though his answers sounded almost exactly like a teenager trying -- and badly failing -- to lie about what happened that evening, after arriving home drunk, after curfew, with a newly-crumpled fender on the family car. Which is indeed the perfect metaphor for his performance.
Only one of the questions we sincerely would have loved to have seen Democrats ask was actually asked, and it was almost at the very end of his testimony (when Kamala Harris asked Kavanaugh whether he'd be willing to take the same polygraph test that Ford had voluntarily undergone). That is the type of question we wanted to hear. Even when Democrats were attempting to get some answers out of Kavanaugh on drinking, they really didn't do all that great a job of it. Here is our list of what we would have liked to hear Kavanaugh asked:
- We really didn't get a complete answer to the question the other side just asked, so allow me to state it with more clarity. When you say you occasionally had "too many beers," how many would that be, exactly? What number do you have in mind when you use that phrase? How many beers did you drink in an average sitting when you were in high school? How about when you were in college? How many times a month did you drink that many beers in one sitting? What is the highest number of beers you have ever consumed in a single day?
- {If Kavanaugh refused to offer specifics to any of those questions...} But you have claimed that not once while you were drinking did you ever -- ever -- fail to remember what happened. So why is it that you now cannot accurately state how many beers you drank in any given circumstance? Could it be that you simply forgot?
- You appear indignant about any questions about your yearbook entry. Why, if you are so dismissive of this line of questioning, did you bring the subject up yourself in your opening statement? If you expected us to ignore your yearbook, then why even mention it?
- Do you seriously expect anyone in this room to believe that bragging of being a member of the "Beach Week Ralph Club" merely meant you have a weak stomach? How often, when drinking, did you drink to the point of vomiting? Every time? Every other time? Once a month? Once in a blue moon? What?
- So let's see, you are now stating that you only drank {insert Kavanaugh's answer on the frequency of his drinking} times per month. Then how in the world could you ever have made a pledge with your friends to drink 100 kegs of beer before graduation? I read about this pledge in Mark Judge's book, Wasted: Tales Of A Gen-X Drunk. And you bragged on your yearbook page that you were the, quote, treasurer, unquote, of the quote, 100 Kegs Or Bust Club, unquote.
- I remind you that you are under oath, and I'd like a straight answer to the question: did you write your own yearbook entry? You have tried to insinuate that the yearbook editors somehow spruced the text up. Again, sir, you are under oath. Did you write this yearbook entry or not? I can read your entire entry to you word-for-word, if you need to be reminded of any of it.
- I'm sorry, but you seem perturbed by the graphic and detailed quality of these questions. How can you sit there and complain that anyone being examined for fitness for high office shouldn't have to answer such questions when you were instrumental in writing the most detailed and graphic questions imaginable for Bill Clinton to answer, when you worked for Ken Starr's investigation? How do you square those two? In the summer of 1998, you yourself wrote that the, quote, idea of going easy on him at the questioning is thus abhorrent to me, unquote. Were those your words? And yet you sit here now and object to us asking you detailed questions? Can you understand why the public would find that hypocritical in the extreme?
- In your opening statement, you rather bizarrely referred to "the Clintons" masterminding some grand conspiracy against you. Do you have any details which might back up such an unsubstantiated claim? Would you allow someone to testify to such a thing in your courtroom without evidence or proof? Wouldn't it be more accurate -- given your history working for Ken Starr, after all -- to say that rather than the Clintons being behind some vast left-wing conspiracy against you that instead you were actually part of the vast right-wing conspiracy against them?
- You have misleadingly stated several times that when you were in high school, and I quote, the drinking age in Maryland was 18, so seniors could legally drink. What age were you during the summer of 1982? Were you 18? Were you drinking illegally all that time? Did others procure alcohol for you, or did you either lie about your age or have a fake I.D. to purchase beer yourself? Were you born before or after the first of July, 1964? It is beyond belief -- seeing as how you were so interested in drinking beer back then -- that you could have been unaware that, during the era of Mothers Against Drunk Driving, Maryland changed its drinking age on July 1, 1982. This was the exact same day that you wrote on your calendar that you went to a friend's house to drink some brewskis. So while those in the class above you -- those who were seniors when you were a junior in high school -- got grandfathered in while the drinking age raised year by year from 18 to 19 to 20 to 21, you would not have been included, and if you had continued to live in Maryland, you would not have been allowed to legally drink until your twenty-first birthday.
- It is also beyond credibility that you wrote and spoke of ball games where no one in attendance remembered the score -- these are ball games that you personally attended, not merely watched on television -- because you were all having such a good time that you didn't notice the game itself. Would any parent at the time have believed such nonsense if you used this as an explanation for what you wrote or said?
- Do you really seriously expect anyone here to believe that a bunch of football players would write in their yearbook that they were a, quote, "Renate alumnius" or "Renate alumni," unquote, in order to honor a close female friend? This phrase appears fourteen times in your school's 1983 yearbook, either on personal pages like your own or with a group photo of the football team. Are you aware that two of your classmates have said that this was nothing short of bragging about your sexual conquests? Are you aware that the woman in question, when she only recently became aware of this slur perpetrated against her by you and your buddies, said, and I quote: I can't begin to comprehend what goes through the minds of 17-year-old boys who write such things, but the insinuation is horrible, hurtful, and simply untrue. I pray their daughters are never treated this way, unquote? Does that sound to you like she feels she is being respected by the use of such a term? And if what you say is true -- no matter how farfetched it now sounds -- and you were actually mentioning the girl to honor her and her platonic friendship, then why has she never read this comment before now? If you were indeed honoring her, then why didn't a single one of you show it to her, back then? Your claim is beyond ridiculous, it in fact skates right up to the edge of perjuring yourself before this committee.
- Speaking of perjury, how do you square your earlier testimony to this committee that you would not, quote, get within three ZIP codes, unquote, of a political controversy and that judges ought to be, quote, above politics; we stay out of it, unquote, with the claims of a political, quote, hit job, unquote against you that you just made in your opening statement? Because you seem to have put the lie to your own claim, even going as far as naming "the Clintons" in such a statement, without a shred of evidence.
- Are you really going to stick to your claim that a student obviously caught up in the jock culture of the times who bragged about being an officer of the "100 Kegs Or Bust Club" and of ralphing it up down in Ocean City and of not being able to remember baseball games you attended and of having "too many beers" at times and even "passing out" or "going to sleep" from drinking to excess would always faithfully remember exactly what took place while you were so often inebriated? Which brings me to my final question. If we cannot believe your claim that you faithfully remembered each and every bout of drinking too many beers, then why should we not believe Dr. Ford's accusation in full while simultaneously believing that you truly have no memory of it happening -- because you could not remember it the very next day?
Those are the questions we would have asked Brett Kavanaugh, had we had the opportunity. And we were indeed disappointed that nary a one was posed by the Democrats on the committee.
You have to understand the culture of the times. In fact, Kavanaugh himself offered up two prime examples in his opening statement: the movies Fast Times At Ridgemont High and Animal House. We would also recommend Dazed And Confused and the much-less-well-known River's Edge to anyone who did not personally attend high school in the late 1970s and/or early 1980s. Or the single season of the excellent television show Freaks And Geeks, for that matter. These all launched the acting careers of an astounding number of popular actors today, in fact (most notably, perhaps, including the first appearance on screen of Matthew McConaughey in Dazed And Confused). And these movies did not appear in a vacuum. They were not Star Wars or The Lord Of The Rings -- not some fantastical universe which sprang from some fiction-writer's creative mind. They reflected the actual culture of the times -- some more accurately than others, to be sure, but again, they did not exist in a vacuum.
This was where Brett Kavanaugh came of age. He was by his own admission a prominent student athlete. And yet he swore under oath that he never -- never, mind you -- drank so much he didn't fully remember everything the next day. How many high school jocks from back then would even dare to make such a ludicrous claim?
That was Kavanaugh's biggest weakness, and while Democrats did rather timidly probe this weakness, they never drilled down beyond the surface-level answers Kavanaugh gave. Any one of the above lines of questioning might have shown that Kavanaugh was not being fully truthful in his testimony, despite swearing an oath to do so before he began.
If Democrats truly had wanted to win the battle for public opinion, that's what they really should have done. Because anyone who remembers that era knows how far-fetched Kavanaugh's facile explanations truly were. From the tail end of the Baby Boomers through the beginnings of Generation X (the group who, for a short time, were known as "Posties" for "Post-Baby-Boomers" ), Kavanaugh's testimony would have appeared more and more ridiculous. Much like, as we stated before, a teenager desperately trying to pin the blame for his drunken entry back home at 3:30 in the morning on anyone else under the sun than himself.
Democrats on the committee chose to go a different route. Today, this decision proved to be the right one, we fully admit. Concentrating on the F.B.I. and the patent unfairness of not investigating very credible claims proved to be more persuasive to people like Jeff Flake than a full-frontal attack might have been.
Still, it would have made for even-more-fascinating television, wouldn't it have?
But what's done is done, and we are where we are now. We enter a period of being in Limbo which will last for a week. There are five senators who still have not indicated how they will vote. Two are Democrats from very red states: Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota. Both are in tight re-election races right now. There are also three Republicans who still have not said how they will cast their final vote: Jeff Flake, Susan Collins, and Lisa Murkowski. Republicans need at least two out of those five votes to get Kavanaugh confirmed. No matter what else happens next week (unless Rod Rosenstein suddenly gets fired), these five will be front and center, under the media and public microscope.
What looked like a slam-dunk for Republicans two weeks ago is now wide open, to put this another way. Republicans may indeed seat Brett Kavanaugh on the Supreme Court at the end of this process, but it now seems equally possible that he will either never get a vote (because his nomination is withdrawn) or that he will fail to be confirmed by the full Senate.
No matter which of these winds up happening in the end, though, everyone is going to remember this week for a long time to come. Yesterday's hearing was one for the ages. History was already made, even though the final verdict is still out. And even in the year 2040 and beyond, Dr. Christine Blasey Ford's name will still be well-known to all Americans. That's really the only safe bet, at this point.
Chris Weigant blogs at: ChrisWeigant.com
Follow Chris on Twitter: ChrisWeigant
Full archives of FTP columns: FridayTalkingPoints.com
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