He bobbed, he weaved, he ducked, he evaded, declining to answer directly whether he viewed his accuser as part of a political conspiracy against him, or whether he personally believed that reopening the FBI’s background investigation into his nomination would be the best way to clear his name. At one moment, Senator Dick Durbin’s relentless questioning on that last point seemed to render him speechless.
But none of the 10 Democrats on the Senate Judiciary Committee—not even the five who are former prosecutors—could really rattle Brett Kavanaugh’s gale-force defense of his innocence, which began with a passionate, partisan, roundhouse right attack on the confirmation process, and ended with a solemn sworn assertion to God that he was “100 percent certain” he was telling the truth.
That Kavanaugh’s emphatic answer precisely mirrored Christine Blasey Ford’s measured certainty that he was the man who sexually assaulted her 36 years ago only served to underscore that a long day of riveting testimony had left Kavanaugh’s nomination more or less where it was when the morning began, balanced on a bitter he-said, she-said partisan precipice, with many open questions remaining and just one likely to be answered anytime soon: Can he get 51 votes?
“In the end, there is likely to be as much doubt as certainty going out of this room today,” said Senator Jeff Flake of Arizona, one of the Republicans who had been most insistent on holding the hearing in the first place. That Delphic assertion was about the only thing that seemed certain after hours of intense, emotional, and diametrically opposed testimony by accuser and accused.
Ford, a research psychologist with scientific training in brain function, held the committee spellbound all morning. When Senator Patrick Leahy asked what she most remembers of the night when she says Kavanaugh and another teenage boy locked her in a bedroom at a party, her answer was searing and unforgettable. “Indelible in the hippocampus,” she said, referring to the part of the brain where memory is lodged, “is the laughter, the uproarious laughter between the two, and they’re having fun at my expense.”
But Kavanaugh’s afternoon testimony was if anything more emotional, as he struggled repeatedly, drinking water and sniffling to choke back tears, while he described the toll that the accusations of sexual misconduct had taken on him and his family after “my 53 years and seven months on this Earth,” in which he said no such allegation had ever been lodged against him. In a stunning abandonment of the typically tempered tone of judicial nominees, he lit into his Democratic critics on the committee, declaring, “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.”
In Donald Trump’s America, the hearing seemed yet one more grim moment in which left and right have dug in further, and nobody’s mind was really changed. By evening, the Senate’s Republican leadership had decided to hold a committee vote on Kavanaugh’s nomination on Friday and a floor vote on Saturday.
“Judge Kavanaugh showed America exactly why I nominated him,” the president tweeted after the hearing. “His testimony was powerful, honest, and riveting. Democrats’ search and destroy strategy is disgraceful and this process has been a total sham and effort to delay, obstruct, and resist. The Senate must vote!”
Trump was reported to have been underwhelmed by Kavanaugh’s stolid defense of himself in a Fox News interview earlier this week, but he surely thrilled to Kavanaugh’s relentlessly pugnacious performance before the committee. Again and again, Kavanaugh interrupted his Democratic interrogators, turning their questions back on them. At one point, he went so far as to ask Amy Klobuchar of Minnesota, the daughter of an alcoholic who wanted to know whether he had ever experienced memory blackouts from drinking, “Have you?” (He later apologized.)
The dynamic of the afternoon hearing changed sharply after Durbin peppered Kavanaugh with questions about whether he himself favored an additional FBI investigation into claims by Ford and others. “I welcome whatever the committee wants to do,” Kavanaugh said. “I want to know what you want!” Durbin rejoined. Kavanaugh seemed briefly stunned into silence.
At that point, the Republicans abandoned their reliance on Rachel Mitchell, the sex-crimes prosecutor from Arizona who had handled their side’s questioning of Ford and the first couple of rounds of Kavanaugh, and Lindsey Graham of South Carolina jumped into the fray with a ferocious denunciation of the Democrats’ tactics and a defense of Kavanaugh. “To my Republican colleagues, if you vote no, you are legitimizing the most despicable thing I have seen in my time in politics,” he said.
The Democrats scored some technical debating points after that, undermining Kavanaugh’s credibility on small matters in an effort to impugn it on the central one. Senator Sheldon Whitehouse of Rhode Island elicited some especially implausible defenses from Kavanaugh about his high-school-yearbook entry’s apparently celebratory reference to “ralphing,” which Kavanaugh acknowledged was a reference to vomiting but explained away by saying he’d always had a weak stomach, whether for beer or spicy foods. Kavanaugh described the yearbook’s cryptic references to “boofing,” which he said referred to flatulence, and “Devil’s Triangle,” which he said was a drinking game but which slang dictionaries describe as sex between one woman and two men.
Richard Blumenthal of Connecticut asked Kavanaugh if he was familiar with the Latin legal term used in common law falsus in uno, falsus in omnibus, meaning “false in one thing, false in everything,” but Blumenthal struggled to get traction in questioning the judge about his drinking in college. Kavanaugh repeatedly parried and interrupted, until a frustrated Blumenthal finally blurted out just as his allotted five minutes ended, “Do you believe Anita Hill?”
In fact, the Democrats never seemed to regain their momentum after Graham’s fusillade, and Kavanaugh’s default posture from the start was one of unmodulated outrage that he should be accused of such offenses as those alleged by Ford and at least two other named accusers. He explained his admittedly wonky habit of keeping detailed calendars of his daily activities as a teenager by saying that his father had begun the practice as a kind of running diary and he’d emulated it, almost breaking down at several points as if deeply stirred by some memory of filial piety or loyalty. He acknowledged of his teenage years, “I liked beer. I still like beer,” but denied that he had ever drunk to the point of blacking out, much less of sexually assaulting anyone, and added: “If every American who drinks beer, or every American who drank beer in high school, is suddenly presumed guilty of sexual assault, it will be an ugly new place in this country.”
Repeatedly, Kavanaugh brushed away questions about his drinking by emphasizing his academic and athletic success, insisting more than once some variation on the phrase, “I busted my butt.” At one point, he told the sympathetic John Cornyn of Texas, “I’m never going to get my reputation back. My life is totally and permanently altered.”
That may well be true. It seems just as likely that the judicial confirmation process, and perhaps the Supreme Court itself, has been deeply altered, as well. Just as his patron the president is a Rorschach test in American politics, so, too, is Kavanaugh. Was his account to the committee of how his 10-year-old daughter suggested the family should pray for Ford a deeply touching note, or a moment of Nixonian self-pity? Was his bitter description of his treatment by some Democrats on the committee before the latest allegations ever even arose as “an embarrassment” a heartfelt and justified complaint, or a highly unorthodox dropping of the judiciary’s impartial mask? It all depends on who you are and what you believe.
Kavanuagh’s own verdict was clear. “This is a circus,” he said. “The consequences will extend long past my nomination. The consequences will be with us for decades.”
And if he is confirmed, of course, so might Justice Kavanaugh.