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Not Good Enough, Senator Warren

When Elizabeth Warren ran for the Senate in 2012, her opponent, Republican incumbent Scott Brown, accused her of falsely claiming Native American heritage “throughout her career” to gain an advantage in applying for prestigious professorial positions at Penn and Harvard law schools. The accusation gained new life in May 2016, when presumptive Republican nominee Donald Trump gave Senator Warren the nickname “Pocahontas,” in a typically juvenile Trumpian response to Warren’s harsh critique of discrepancies between Trump’s pro-middle class, anti-Wall Street campaign stances and his pro-Wall Street, anti-middle class business history.

The factual basis for the accusations was two-fold. First, while she was at Penn, Warren put herself on a national list of “minority” teachers as a Native American, based on an oral tradition in her family that the family heritage included Native American ancestry. Second, while Warren was at Harvard, Harvard listed her as Native American in describing the diversity of its faculty.

Before today, Warren’s defense was that she didn’t apply for the Penn and Harvard positions but was recruited for them, so didn’t use “minority” status in applying for those positions; and that she didn’t know that Harvard had described her as Native American until press reports brought it to her attention years after the fact. Today’s addition to those defenses is Warren’s release of a DNA analysis that concludes that Senator Warren does indeed have Native American ancestry.

Setting aside the childish and racially tinged name-calling that is Trump’s rhetorical signature, I have two objections to Warren’s defense. First, the DNA report found a very small portion of Warren’s ancestry to be Native American: a “Native American ancestor in the pedigree at approximately 8 generations before the sample, although the actual number could be somewhat lower or higher.” One ancestor eight generations back accounts for less than four-tenths of one percent of a person’s ancestry. Even if the estimate is off by two generations, Warren’s Native American ancestry would be less than 2 percent. Few would consider that a legitimate basis for claiming to be a Native American, as Senator Warren undisputedly did.

My second objection to Warren’s defense is that she thinks it’s significant that she didn’t apply to Harvard but was recruited, and that she didn’t know that Harvard had listed her as Native American. She is backed up on this point by Harvard itself, and by the chair of the committee that successfully recruited her (Charles Fried, the Republican former solicitor general in the Ronald Reagan administration), who insist that her claim of Native American ancestry played no role in her recruitment.

Now of course Harvard (and Fried) would say that. But the fact remains that when Harvard recruited Warren, she was listed at her own initiative as a Native American in the national directory that was widely used in those pre-internet days as a source for information on law professors. And the fact remains that Harvard clearly knew of her claim to Native American ancestry, since they themselves claimed her as Native American in boasting of their law faculty’s diversity – whether with or without Warren’s knowledge.

Personally, I don’t really care whether Warren has Native American ancestry, or how much. What I do care about is how Warren has handled the matter in the six years since it became a public issue.

The whole thing has a very Clintonian feel to it. I’m quite sure Warren knew when she listed herself as Native American in the faculty directory that such a listing could help her career. The claim was based on what amounts to family legend, giving her the look of an opportunist who grabbed for an undeserved advantage. And with the release of the DNA report, Warren is doubling down on the claim based on a tiny fraction of DNA, oblivious to the fact that most voters will regard the DNA report not as a vindication of her claim but as a contradiction of it. Finally, Warren is slicing the salami awfully thin, distinguishing between applying as a Native American and being recruited while representing herself as a Native American, as if we’re debating what the meaning of “is” is.

What she should have done when Scott Brown first brought it up in 2012 was to admit that it was a mistake to list herself as a Native American faculty member, and to apologize for that mistake. What she has done instead is to try to plough through it, never successfully putting it behind her.

To me, this suggests a Clintonian inability to recognize a problem and to act decisively to solve the problem, thereby allowing a minor issue (like, say, the questionable use of a private e-mail server for State Department business) to metastasize into a scandal. Handled deftly, an admission of a mistake in one’s own life could actually be a tactical advantage in running against Trump, the narcissist who never admits any mistake, or indeed any imperfection of any kind.

I really like Warren’s politics. Her work on behalf of American consumers, home-owners and wage-earners has been exceptional. Consequently, she makes for a great United States senator. But I think this episode shows that she would make a risky presidential candidate, and given the stakes in 2020, it’s a risk we can’t afford to take.



The Cost of Fighting Kavanaugh

As recently as eight years ago, North Dakota’s Congressional delegation – two senators and an at-large representative – was entirely Democratic. With a populist tradition rooted in its immigrant Norwegian farmer heritage, North Dakota maintains to this day some of the strongest legal constraints on corporate power of any state.

Still, North Dakota is a deeply red state. Cook gives the state a Republican “partisan lean” of 17 percent. The state has not voted for a Democratic candidate for president since Lyndon Johnson’s landslide in 1964. Donald Trump won North Dakota by 35 percent of the vote. The population is 90 percent white, and the largest minority is Native American, at 5 percent.

Curiously, Barack Obama won the largest percentage of the North Dakota vote in 2008 of any Democrat since Jimmy Carter in 1976 – and still Obama lost the state by 9 percent. In 2012, Obama lost North Dakota by 20 percent – which makes it all the more remarkable that Heidi Heitkamp, a Democrat, a former state attorney general, and an unsuccessful gubernatorial candidate in 2000, won election to the Senate in 2012. Her margin of victory was slim, less than 1 percent of the vote. But she won.

Running for re-election this year, Heitkamp hasn’t led in any publicly available poll since February. Polling over the summer showed her trailing by 4 percent and 5 percent margins. The gap was significant, but just outside the margins of error for most of those polls. So Heitkamp’s three-to-one fundraising advantage gave hope that she might somehow eke out another election.

Then came the Brett Kavanaugh nomination, and along with it, the mere possibility that Heitkamp might vote against confirmation. Heitkamp held her own through the initial round of hearings – she is not on the Senate Judiciary Committee, and she was able to remain uncommitted and still not become the focus of Kavanaugh’s advocates.

But on September 12, Christine Ford’s then-anonymous allegation of sexual assault by Kavanaugh became public. Heitkamp and other moderate senators, Democrat and Republican, were suddenly front and center in the public and media discussion of Kavanaugh’s confirmation. A Strategic Research Associates poll taken from September 17 to 27 showed Heitkamp’s polling gap had grown to 10 percent.

An additional hearing was held on September 27, for testimony on Ford’s allegations. A Fox News poll of likely voters taken from September 29 to October 2 has Heitkamp trailing by 12 percent.

Broader indicators show similar results. On September 12, projected that Democrats had a 32.3 percent chance of taking control of the Senate in midterm voting next month. Democrats’ chances slid slightly, to 31.9 percent on September 30, then crashed, to 22.0 percent on October 4, bouncing ever so slightly to 22.2 percent as of yesterday.

On September 12, FiveThirtyEight projected that Democrats had an 82.8 percent chance of taking control of the House. Those odds dropped slightly, to 80.7 percent on September 30, then dropped more substantially, to 73.9 percent. (Those are good odds, but no slam dunk. On November 6, 2016, FiveThirtyEight gave Hillary Clinton a 65 percent chance of winning.)

Meanwhile, Trump’s net disapproval rating is less than 10 percent, among the best ratings of his presidency. Polling shows that Republican voters’ enthusiasm for the midterms is approaching the high levels shown consistently by Democratic voters for the last year or so.

In general, Democrats went into the Christine Ford hearing believing that supporting her and opposing Kavanaugh would bolster their midterm prospects, maybe even winning them control of the Senate, by expanding Democratic support among women. But by the time of the actual voting, Senator Heitkamp knew well that opposing Kavanaugh’s confirmation might end her political career.

She cast her “no” vote anyway, presumably because she felt strongly that Kavanaugh does not belong on the Supreme Court.

There is still a month to go before the midterm election, although absentee and early voting has already begun. The Republican gains of the last few weeks could be undone, as the heat of the Kavanaugh controversy dissipates – after almost every battle, the winning side tends to let go of its bitter feelings faster than the losing side.

Even if that happens, the Kavanaugh episode shows that some voters, maybe five percent of the electorate, were discontented enough to disapprove of Trump’s performance and to prefer Democratic over Republican Congressional candidates, but remained pro-Republican enough to come home when a Republican Supreme Court nominee came under attack.

Opposition to Brett Kavanaugh was politically necessary for the Democratic Party as a whole, because the Democrats’ voter base would not stand for anything less, given the stakes of a nomination that will give us the most conservative Supreme Court in 80 years. And opposition to Kavanaugh was right, given the substance and credibility of the allegations against him, Kavanaugh’s unprecedented display of mean-spirited partisanship, and the sheer number of his lies under oath during the confirmation hearings.

Still, Democratic opposition to Kavanaugh has come with a cost.

You Don’t Get to Hate the Rain Without Blaming the Clouds

Supreme Court nominations that fail to produce Supreme Court justices have been surprisingly frequent over the course of our history. In 229 years, presidents have made 163 formal nominations, but only 114 nominations have led to confirmation and Supreme Court service. Forty-nine nominations did not lead to confirmation and service – fully 30 percent of Supreme Court nominations failed.

On the surface, that makes the modern age of Supreme Court nominations look relatively smooth. Beginning with Harry Blackmun’s nomination in 1970, 18 of 22 nominations resulted in confirmation and judicial service. Only four – just 18 percent – of nominations failed during that time. And that includes John Roberts, whose initial nomination to replace Sandra O’Conner as associate justice was withdrawn on the death of Chief Justice William Rehnquist; Roberts was successfully nominated to succeed Rehnquist.

Formal rejections of Supreme Court nominees are relatively rare: only 12 of 163 nominations have been rejected by vote of the Senate. But at least 15 nominations were rejected less formally: six nominations were tabled or postponed and ultimately not considered, six were refused consideration, two were rejected by the Senate Judiciary Committee, and one was successfully filibustered. Merrick Garland was the first modern nomination to be refused consideration, but not the first in history – one of John Tyler’s nominees, three of Millard Fillmore’s, and one of Warren Harding’s met this fate before Barack Obama’s final nomination was stymied. And many other nominations were withdrawn in the face of likely rejection.

Tyler was surely the least successful president in filling Supreme Court vacancies. He made nine nominations to fill two vacancies. One seat was filled on Tyler’s seventh try; the other remained vacant despite two tries, and was ultimately filled by Tyler’s successor, James Polk. Tyler was a Democrat elected vice president under President William Henry Harrison, a Whig. Harrison died after just a month in office, and Tyler was never able to overcome the opposition of the Whig majority in the Senate.

Politics motivated the rejection of Supreme Court nominees right from the start. When George Washington nominated John Rutledge to be the Court’s chief justice in 1795, the Federalist majority in the Senate rejected the nomination in large part because Rutledge vocally opposed the Jay Treaty, which settled disputes with Great Britain that had been outstanding since independence. Not even nomination by the Father of His Country could save Rutledge from defeat, by vote of 10 – 14, making Rutledge the first Senate-rejected Supreme Court nominee.

The Supreme Court confirmation process has always been politically influenced. But how political influences play out has changed considerably over the years.

Washington’s nomination of Rutledge was rejected in just five days – not until the 28th Supreme Court nomination did a confirmation process take more than ten days. In 1925, Harlan Stone was the first to appear personally before the Senate Judiciary Committee – at his own request, to address the concerns of some senators that Stone, a New York City lawyer and law professor, was too closely tied to Wall Street interests. Nominees were not questioned about their judicial views until 1955, when John Harlan was re-nominated by Dwight Eisenhower. Harlan’s 1954 nomination had failed in the Judiciary Committee, because he was regarded by Southern Democrats as too liberal on racial issues, Brown v. Board having just been decided, and racial integration having thus become a hot judicial issue. (Evidently Harlan satisfied the Senate’s segregationists, at least sufficiently to win confirmation by vote of 71 – 11.)

Supreme Court nominations were for many years considered to be beyond the reach of filibusters. Although filibusters were theoretically possible under Senate rules adopted in 1806, the first actual filibuster didn’t occur until 1837. No Supreme Court nomination was filibustered until 1968, when Abe Fortas’s nomination for promotion to chief justice was filibustered and ultimately withdrawn.

Supreme Court nominations did not reach their modern level of public controversy until 1987, when Reagan’s nomination of Robert Bork became the subject of intense lobbying and advertising. Bork’s nomination was rejected by vote of 42 – 58, with six Republicans voting “no.” The rejection was based almost entirely on Bork’s judicial views, although there was also residual resentment that Bork was the one who had finally fired Watergate Special Prosecutor Archibald Cox on the night of the Saturday Night Massacre.

Four years after Bork’s rejection, this new age of highly partisan confirmation hearings brought us the spectacle of Clarence Thomas accused of sexual harassment by Anita Hill, with senators’ party membership largely determining who they believed. Like Bork, Thomas brought very conservative “originalist” views to his nomination, but unlike Bork, Thomas was not forthcoming about his desire to overturn Supreme Court precedents expanding civil rights, voting rights and reproductive choice. He squeaked by with a confirmation vote of 52 – 48.

Allegations of ethical and other misconduct had been the subject of inquiry for previous Supreme Court nominations – Associate Justice Abe Fortas’s nomination to become chief justice, and Clement Haynsworth’s nomination to become an associate justice, for instance, were both derailed by ethics issues. Harrold Carswell’s nomination was defeated in part because of white supremacist statements he had made while campaigning for the Georgia legislature in 1948. (Carswell was also regarded as a mediocre legal talent, prompting Nebraska Republican Senator Roman Hruska to lament that “there are a lot of mediocre judges and people and lawyers – they are entitled to a little representation, aren’t they?”)

But Hill’s sexual harassment charges against Thomas were much more controversial than “mere” ethics issues, and much more polarizing. And even that level of controversy and polarization was swamped by Donald Trump’s nomination of Brett Kavanaugh and the subsequent confirmation process that produced credible but not directly corroborated allegations of sexual assault and other sexual misconduct, albeit when Kavanaugh was a high school and college student.

The voting on Supreme Court confirmations also reflects an increase in contentiousness over time. A substantial majority of confirmations were done by unrecorded voice votes, suggesting a lack of controversy approaching consensus. But roll call votes have been the rule, without exception, since the confirmation of Thurgood Marshall in 1967, even for the five nominees who were unanimously confirmed during that time.

The first three roll call confirmation votes, from 1796 to 1830, were decided by very large majorities: 21 – 1, 27 – 5, and 41 – 2, for an average of 30 – 3. President Andrew Jackson introduced a more contentious phase, with his four roll call confirmations averaging 30 votes for and 15 against.

The average vote on all 52 roll call confirmations in history is 57 – 15. Only 13 of the 52 roll call confirmations won less than two-thirds of votes cast. After Andrew Jackson, almost all roll call confirmations won at least two-thirds of senate votes cast. For almost 75 years, from 1912 to 1986, every roll confirmation vote won more than two-thirds. That ended when Ronald Reagan nominated William Rehnquist for chief justice in 1986, and roll call votes have only become more partisan since then.

Compared to the historical average confirmation roll call vote of 57 – 15, the average beginning with the Rehnquist 1986 vote is 74 – 25. The average beginning with the Thomas confirmation in 1991 is 67 – 32. The average vote for the last five roll call confirmations is 59 – 41.

I’ve observed that there is little point to arguing over which party is more responsible for the increasingly hostile partisanship of the Supreme Court confirmation process. Republicans look to the Robert Bork confirmation battle, where “outside groups” engaged in unprecedented public campaigning about the nomination, and to the Clarence Thomas hearings on Anita Hill’s allegations, which Republicans insist were politically motivated fabrications. Democrats point to Republicans’ partisan refusal to consider any nominee, no matter who it might have been, put forward by Barack Obama during his last full year in office.

As proof of their reasonableness, Republicans refer to their confirmations of Sonia Sotomayor and Elena Kagan. Democrats point out the unanimous confirmations of Antonin Scalia and Anthony Kennedy.

But ultimate responsibility for the harsh partisanship doesn’t lie in the Senate, for its handling of confirmations; it lies in the Oval Office, for its handling of nominations. Until recently, Supreme Court nominations were not ideologically driven the way they are now. Dwight Eisenhower nominated Earl Warren and William Brennan, two very liberal justices, and John Harlan and Potter Stewart, two moderates. John Kennedy nominated Byron White, who was fairly conservative.

Richard Nixon was the first post-war president to express an intention to change the ideology of the Court, and his expressed intention was not to achieve a conservative Court but a “balanced” Court. Two of his appointees, Warren Burger and William Rehnquist, were conservatives, but the other two, Harry Blackmun and Lewis Powell, were moderates. Even with four Nixon appointees, the Burger Court basically invented the constitutional doctrines of gender equality and reproductive choice.

Ronald Reagan was the first post-war president to push for a wholesale reorientation of Supreme Court ideology. His four appointees included only one moderate, Sandra O’Connor; two conservatives, Anthony Kennedy and William Rehnquist; and one “originalist,” Antonin Scalia. George H. W. Bush appointed one moderate, David Souter, although I’ve always thought that the nomination was made in the mistaken belief that Souter was a conservative; and one “originalist,” Clarence Thomas.

Bill Clinton, George W. Bush (other than the failed nominee Harriet Miers) and Barack Obama all nominated candidates who were undisputedly qualified as a matter of education, experience, and temperament. But, with only one exception, all of their nominees were carefully vetted for their value in getting the president’s positions to five votes on the Court. The exception was Merrick Garland, a moderate chosen in an unsuccessful effort to overcome Republicans’ refusal to consider any Obama nominee.

Donald Trump has taken ideological vetting to a new level. He campaigned on an express promise to put an originalist majority on the Court, and then he outsourced candidate screening to the partisan Federalist Society, an unprecedented abdication that stands as the very opposite of leadership, denigrating both the impartiality of the Court and the authority of the Presidency.

*          *          *

Beginning in the 1960s, the Supreme Court has become the American dispute resolution forum of last resort. Although Alexis de Tocqueville famously observed as long ago as 1835 that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question,” it was in the 1960s that Supreme Court rulings began to make large-scale social change. It isn’t that the Court hadn’t previously ruled on important social and economic issues, but that the Court had previously stood usually on the side of the social status quo. With the Court’s availability as a mechanism for reform, the Court’s majority necessarily became a political prize.

Also in the 1960s, the two parties began to re-align ideologically – liberal Republicans have become Democrats and conservative Democrats have become Republicans. Today’s parties divide cleanly between liberals and conservatives, and almost as cleanly between urban and rural voters, and between white and non-white and Hispanic voters. When the parties both had liberal and conservative wings, a president from one wing was as likely as not to appoint justices from the other wing as a means to maintain party unity – thus Eisenhower’s nomination of Earl Warren, the liberal Republican governor of California, for instance. In today’s political reality, Democrats nominate liberals and Republicans nominate conservatives.

Neither party can afford to forego any opportunity to use Supreme Court vacancies to further its political agenda – either by the nominees the president chooses or by the position taken by senators of both parties on those nominees. Neither side can afford to appoint moderates, or unknown ideological quantities, because neither side can trust the other side to follow suit.

Donald Trump won election by the narrowest of margins. He could have chosen – he should have chosen – to govern modestly, seeking the center, building broad coalitions by negotiation and compromise. Donald Trump could have chosen traditionally conservative Supreme Court nominees. Instead, he chose “originalists,” reactionaries hell-bent to turn back eighty years of judicial history, determined to preserve first-among-equals legal standing for heterosexual white Christian men.

The bitter partisanship of recent Senate confirmation hearings is a direct, causal result of our presidents’ determined pursuit of ideological Supreme Court majorities. Decrying the partisanship of the Brett Kavanaugh confirmation hearing without deeply condemning Donald Trump’s choice of Brett Kavanaugh as his nominee is like complaining about the rain while praising the thunderclouds.


From “Final Days” to “Fear”

Bob Woodward has written or co-written 19 books: from All the President’s Men, about the investigation of the Watergate scandal, to Fear, about the Donald Trump White House.

All the President’s Men pioneered two core elements of what would become Woodward’s signature style: writing that in its immediacy is more like news than history, and writing that relies heavily on anonymous sources. The Washington Post investigation of Watergate relied most famously on “Deep Throat” – an anonymous source who revealed himself only 30 years later: Mark Felt, who was the FBI’s second-in-command through most of the FBI’s own investigation, and who served as acting director of the FBI for much of that time.

Woodward’s second book – his last in collaboration with Carl Bernstein – was The Final Days, an account of the last few months of the Richard Nixon presidency. Even more than All the President’s Men, The Final Days relied on anonymous sources. The key difference between President’s Men and Final Days is that the first was told from the point of view of the reporters, Woodward and Bernstein; the second was told in “omniscient narrator” style. In All the President’s Men, the reader watches over the reporters’ shoulders as they track down leads, interview witnesses, and submit reports to editorial review and publication. Many of the witnesses are anonymous – that is, identified to the reporters but not identified to the reader – but the reader generally gets enough information to assess the witnesses’ reliability for herself.

In Final Days, the sources aren’t named or described at all – the omniscient narrator tells us what happened as if the narrator witnessed it directly. There is no recounting of interviews and no description, much less naming, of sources. Thus Final Days generated a lot of controversy when it was published in 1976. Many people, not just defenders of the Nixon administration, questioned the reporting ethics of Woodward and Bernstein and called their reporting “shoddy” and “irresponsible” journalism. One example highlights the problem.

Final Days includes a now-famous anecdote about Secretary of State Henry Kissinger’s visit to Nixon in the White House on August 7, 1974, the night before Nixon’s resignation. The narration gives a sensational account of a sobbing President Nixon asking Kissinger to kneel and pray with him in the Lincoln Sitting Room, ending with Nixon curled up on the floor and beating the carpet in despair over his failed presidency.

The foreword to The Final Days asserts that every fact in the narrative was verified with two sources, but both President Nixon and Secretary of State Kissinger vigorously denied the Final Days account of August 7. The Woodward-Bernstein account must have come from people to whom Kissinger had described the night. It presumably didn’t come from Nixon or Kissinger directly, since both of them denied the account, so it had to come from people they had talked to. Surely Nixon didn’t tell anyone the pathetic story related in the book, so Kissinger must have told two people who spoke to Woodward and Bernstein.

But, first, if Kissinger was the indirect source for two witnesses’ accounts, were there really two sources? And second, if Kissinger was the indirect source for the witnesses’ accounts but he was denying their account, how reliable were the two sources who claimed he had spoken to them?

Lots of teeth were gnashed over this new kind of anonymous sourcing. It’s hard to understand now, after so much time and so much evolution of reportorial use of anonymous sourcing, how big a deal the controversy was. Woodward and Bernstein were widely regarded as having tarnished the accomplishments of their Watergate reporting and diminished the prospects for their careers.

But as it turned out, over the next few years both Nixon and Kissinger wrote memoirs that included accounts of the August 7 sobbing and praying that resembled the Woodward-Bernstein account closely enough to vindicate The Final Days, which served as a model for Woodward’s later books, including the recently released Fear.

Standards have changed since 1976, in a number of respects. The use of anonymous sources has expanded, not always for the better – although Bob Woodward’s use of them has remained impeccable. This time, Woodward’s book didn’t generate the controversy and concern that The Final Days generated 42 years ago. Woodward’s ability as a journalist, even using anonymous sources, has been proven over and over again; he has become one of the most trusted of Washington journalists.

Fear may not have generated controversy, but it generated interest. It recounts White House Chief of Staff John Kelly referring to President Trump as an “idiot” who is “unhinged.” Secretary of Defense James Mattis attributes to Trump the understanding of “a fifth or sixth grader.” Trump’s own lawyer, John Dowd, calls Trump “a f—ing liar” who will end up wearing “an orange jump suit” if he talks to Special Counsel Robert Mueller’s investigators. Trump’s chief economic advisor, Gary Cohn, snatches papers from Trump’s desk in a successful effort to keep him from signing them and withdrawing from NAFTA and a trade agreement with South Korea. Trump refers to his attorney general, Jeff Sessions, as “mentally retarded” and “this dumb Southerner.”

Woodward characterizes the Trump White House as a “nervous breakdown of executive power.” Kelly says it’s “Crazytown.”

The White House insiders to whom these words are attributed all deny saying them. President Trump calls the book “made up” and accuses Woodward of being a Democratic Party “operative.” White House Spokeswoman Sarah Sanders calls the book “nothing more than fabricated stories.” But only committed Trump devotees believe the denials.

I would never claim that Bob Woodward, or any other person, makes no mistakes ever. But I am dead sure that Woodward doesn’t “fabricate stories” for his books. And if I’m called to choose for credibility between Woodward’s Fear and the denials of the Trump administration, it’s not a close call. Woodward has a 46-year record of ferreting the truth out of the eight presidents who came before Trump, and I don’t see any reason he didn’t do the same with this president. Trump, on the other hand, has a record almost as long of falsehoods, exaggerations, and what he has called “truthful hyperbole.” And Trump’s administration, we’ve been told directly, claims a right to assert “alternative facts.”

You can wait for the memoirs to decide if you want, but meanwhile, I’m with Woodward.


The Content of One’s Character

During ten years’ service as an administrative law judge, I was surprised how often people charged with misconduct behaved in court as if they were actually trying to prove the charges against them. An employee charged with chronic lateness would show up late for trial. An employee charged with disrespect of a supervisor or discourtesy toward a member of the public would mouth off to everyone in the courtroom. I had one defendant, charged with falsifying official documents, who altered a trial exhibit during the trial.

In a legal proceeding, behavior during the proceeding can’t be used as evidence on  charges of misconduct alleged to have occurred before the proceeding. But still, I came to understand that people have patterns of behavior that they’re unable to break, at least for very long. We seem to be able to suppress character traits for only limited periods of time; we eventually revert to type.

The central subject of the Senate Judiciary Committee hearing yesterday was an allegation that Brett Kavanaugh had sexually assaulted Christine Ford. But in the background were suggestions that Kavanaugh has a belligerent streak, suggestions that he is liable to lose control, and suggestions that Kavanaugh has led a life of privilege that he has used to his own advantage, and to the disadvantage of others.

Had Judge Kavanaugh for some bizarre reason come to me for coaching, I’d have suggested that his best approach would be soft-spokenness and deference. You won’t be surprised to learn that Kavanaugh didn’t ask me for advice, and you’re already aware that he didn’t opt for the soft-spoken-and-deferential approach.

Kavanaugh’s opening statement consisted of yelling intemperately at the committee for a full half-hour. If you take the suggestion of Nina Totenberg and re-watch the hearing with the volume off – allowing you to focus on facial expressions and gestures – you’ll see a sitting federal appeals judge verging repeatedly on loss of control. His handling of questioning showed a strong sense of entitlement: if he didn’t have a ready sound-bite answer to a question, he responded with blusterous indignation and inappropriate questioning of the questioner. He demanded to know the drinking habits of senators who had the temerity to ask him about his own. He simply refused to answer some questions, staring in silence after the questions were asked. He filibustered simple yes-or-no questions with long, irrelevant and repetitive recitations of his academic record. In general, he treated committee members, or at least Democratic committee members, with a level of hostility that can only be characterized as belligerent. His treatment of Senator Amy Klobuchar was so disrespectful that he came back with an apology after the next recess.

And he seemed never to tire of telling us how much he likes beer.

Kavanaugh complained loudly and bitterly about the excessive partisanship of the confirmation process, and of course he’s right. Supreme Court confirmations have long since ceased to be about getting great justices. The president selects nominees for their likelihood to side with the president’s party on important issues, and the Senate divides almost entirely between members of the president’s party and members of the opposition party in supporting and opposing the nomination. Confirmation hearings no longer serve as inquiries into a nominee’s qualifications, because senators of the president’s party pre-determine that the nominee has them and senators of the opposition party pre-determine that the nominee lacks them.

Both parties certainly share blame for this state of affairs. Arguing over which party bears more blame is like arguing over whether Israel or the Palestinian Authority bears more blame for the lack of a resolution of their conflict: both sides bear at least some blame, neither side will ever be convinced that it bears any blame, and the mere holding of the argument only deepens the animosity that underlies the conflict.

Still, it is fair to observe how rich it is to hear Brett Kavanaugh complain that he is being personally victimized by excessive partisanship, especially because Kavanaugh himself has contributed not inconsiderably over the course of his career to the ratcheting up of bitterly personal partisanship.

For instance, as a member of Independent Counsel Kenneth Starr’s team, Kavanaugh gave serious investigative consideration to loony-bin quality conspiracy theories that Bill Clinton’s administration murdered Vincent Foster, who had already been found by four different investigations, and was ultimately found by the Starr investigation, to have committed suicide. Kavanaugh may believe he has been falsely accused of sexual assault, but he had no problem legitimizing wing-nut accusations of a murder conspiracy against the sitting president of the United States.

If any of the allegations against Kavanaugh is true, it is well within the fair bounds of the confirmation process to consider the allegation and to hold it against him. And, as the Anita Hill precedent would tell us even if ordinary good sense didn’t, determining whether the allegations are true is exactly what the investigative side of the confirmation process is supposed to be about.

A sober-minded judge knows well that many allegations come into court unsubstantiated and leave with jury verdicts. An allegation that starts out uncorroborated does not necessarily end up that way, and it’s the process – in court, the litigation process; in this case, the confirmation process – that is supposed to determine whether the allegation is true or false. But Kavanaugh condemned in harshly partisan terms the mere consideration of the allegations.

Ultimately, this is what bothers me most about Judge Kavanaugh’s nomination. The partisan hostility he displayed yesterday was so extreme that a reasonable person would doubt Kavanaugh’s ability to be impartial in matters of partisan political importance that come before the Court. Even if Kavanaugh never touched any woman without consent, his belligerent partisanship disqualifies him from judicial position.


False Equivalences

Maybe this means I’m biased, maybe it means I’m evidence-oriented. Either way, I approach allegations of sexual misconduct from this premise: it is less likely that a woman will falsely claim to be the victim of sexual misconduct than it is that a man will falsely deny committing sexual misconduct. Where the standard is not “beyond a reasonable doubt” but “more likely than not,” I’m more likely to believe the accuser than the accused. If some think that makes me biased, I’m OK with that.

A very important part of my view is that the stigma that still attaches to victims of sexual misconduct is a powerful deterrent to coming forward even in a case of no particular public import. When the case is of central public importance, the stigma is amplified by partisan hostility that escalates to rage, manifested in vicious slurs and terrifying threats against the victim. A woman who has any kind of reputation or position puts it all at risk when she accuses a powerful man of sexual abuse. Only a woman too naïve to realize this, or too careless to care about it, makes such an accusation without very good reason. Staying silent is by far the easier choice.

On the other hand, it’s very easy to falsely deny committing sexual misconduct. Truthfully admitting sexual misconduct is much more difficult, and therefore much more rare.

I watched the Senate Judiciary Committee hearings on Anita Hill’s accusations against Clarence Thomas in October 1991, and I believed her. She was self-possessed, obviously not a person given to delusions or exaggerations. She was articulate, clear and confident. She was toward the beginning of a rising career in the law, then a professor of law at the University of Oklahoma law school. She had a great deal to lose, and nothing to gain, by testifying against a United States circuit judge and Supreme Court nominee, only the second African-American ever nominated to our highest court. Her choice to accept that risk implied a deep commitment to the truth – a deeper commitment than Judge Thomas’s predictable denial.

I should pause to say that I already believed Judge Thomas to be a perjurer based on his testimony at his initial confirmation hearing. He had denied under oath having expressed any view of the Roe v. Wade decision – ever, at any time, even casually in conversation. Roe v. Wade was decided in January 1973, during Thomas’s second year as a law student at Yale. I started as a law student at Columbia in 1978, and I can assure you that I and every other law student I knew had an opinion about Roe v. Wade.

Not one year into his Supreme Court tenure, Justice Thomas voted to overturn Roe v. Wade.

In any event, Judge Thomas’s denial of Professor Hill’s allegations didn’t change my assessment of her credibility. And the corroborating witnesses iced it. I found Hill’s witnesses to be solid and credible, and Thomas’s to be, well, not.

At the time, I was serving as an administrative law judge in New York City government. After the hearings, I informally surveyed the judicial and non-judicial staff in the office and found that the judges unanimously believed Professor Hill; the non-judicial staff almost unanimously didn’t. I asked one of the secretaries why she didn’t believe Hill. Her response was a question: How do we know that someone didn’t pay her to make these allegations? It struck me then how hard the secretary would have been to convince: her question relied not on evidence, but on a lack of evidence. Proving to her satisfaction that Professor Hill had not been paid off would have been impossible.

As I remember it, polling at the time found that the general public did not believe Professor Hill’s accusations, by a margin of about two-to-one. But I also remember seeing a poll of judges published in a legal periodical, showing that judges believed Professor Hill, also about two-to-one. As a judge, I perhaps smugly comforted myself that this poll, plus my informal survey, showed that members of a profession that is experienced and hopefully expert at sorting truthful from untruthful testimony had come to the conclusion I favored.

*          *          *

Now comes Ross Douthat, chiding us to withhold “certainty” about sexual assault allegations against Judge Brett Kavanaugh in connection with his pending Supreme Court nomination. We should be chastened from such “certainty” by the cases of Clarence Thomas and Bill Clinton: liberals were “certain,” he says, that Thomas was guilty and Clinton was innocent, and conservatives were “certain” of the opposite in both cases.

Having suggested an equivalence between the Thomas and Clinton cases, Douthat launches into an extended discussion of the reasons to doubt the Thomas allegations, but not a word about any reason to doubt the Clinton allegations. On the contrary, he offers an odd point in favor of the Clinton allegations: “many liberals are willing to admit that Clinton might well have raped Juanita Broaddrick.” It’s a curious point to make in the context of proposing an equivalence between liberals’ and conservatives’ certainty, since Douthat is not willing to concede any likelihood that Anita Hill was telling the truth after all.

But there’s a more fundamental lack of equivalency: the Broaddrick allegation was not made public until 1999, after Clinton had been elected, re-elected, impeached and acquitted.

Similarly, Kathleen Willey accused Clinton of groping her, but she didn’t make the allegation until 1998. The allegation was made while Independent Counsel Kenneth Starr’s investigation was still pending; he investigated and found insufficient evidence to proceed.

Leslie Millwee accused Clinton of multiple sexual assaults, but she didn’t make the accusation until 2016, well after Clinton left office.

Even Paula Jones’s allegations against Clinton, made in 1994, was made after his first election, and only her allegations were made before his re-election. (Some consider Clinton’s consensual relationships with Gennifer Flowers and Monica Lewinski to be sexual misconduct because of the power differential, or perhaps the age differential. But neither differences in power nor differences in age, above the legal age of consent, by themselves make a sexual relationship illegal.)

Jones’s allegations were first reported in the media, after which she filed a federal lawsuit. Although not an investigation in the ordinary sense, the allegations were thoroughly explored in pre-trial discovery proceedings, after which, in April 1998, the presiding judge dismissed the case as lacking sufficient evidence to go to trial. While Jones’s appeal was pending, it became publicly known that Clinton had lied during a pre-trial deposition in the Jones case, specifically when he denied having had a sexual relationship with Monica Lewinsky.

As a result of that lie, Bill Clinton was impeached, held in contempt of court and fined by the judge presiding over the Jones case, fined and suspended from the practice of law by the State of Arkansas, and suspended from practice before the Supreme Court (he ultimately resigned from the Supreme Court bar), and he paid a substantial settlement in the Paula Jones case. There is simply no plausible case to be made that the Jones allegations were treated dismissively, or that Clinton was not held to account – in that case, not for sexual misconduct but for lying about his relationship with Lewinsky.

In the case of Judge Thomas, the allegations of sexual misconduct were made before he got to the Supreme Court – in fact the allegations were made precisely in the context of the deliberations over his nomination to the Court. The allegations were referred to the FBI, President George H. W. Bush directed the FBI to investigate them, and the FBI reported back promptly. Hill’s allegations were seriously and professionally investigated before the confirmation vote, although the Judiciary Committee’s follow-up to that investigation was perhaps not equally serious or professional.

Similarly, the allegations of sexual misconduct against Judge Kavanaugh have been made specifically in the context of his Supreme Court nomination. At least some of those allegations have been referred to the FBI, but President Trump has not directed the FBI to investigate, and Chuck Grassley, the Republican chairman of the Senate Judiciary Committee, has not requested such an investigation. Today he expressed outright disdain for the value of any report an FBI investigation might produce.

*          *          *

I listened to today’s hearings on the sexual assault allegations made by Christine Ford against Brett Kavanaugh, and I believe her. Her trauma was palpable and authentic, and her certainty that her attacker was Kavanaugh was convincing because she already knew him. Her account of Kavanaugh’s drinking is supported by all of the available evidence, much of which comes from Kavanaugh’s own statements over the years – indeed it is at least possible that Kavanaugh was so drunk that he genuinely retained no memory of attacking Ford.

But what of the other allegations against Kavanaugh? What of the allegations that were not brought before the Judiciary Committee? I’ve read Julie Swetnick’s declaration, and it is more than convincing enough to warrant further consideration.

The Kavanaugh case, like the Thomas case, is thus completely unlike the Clinton case. Whether Bill Clinton raped Juanita Broaddrick, or assaulted any other woman, is an important question for a number of reasons, but it is completely irrelevant to Clinton’s career in government, which is long over. Whether Brett Kavanaugh assaulted or witnessed the assault of Christine Ford or Deborah Ramirez or Julie Swetnick or anyone else, is relevant to Kavanaugh’s pending nomination to the United States Supreme Court. We don’t need to be “certain” that any of these allegations is true to be certain that he doesn’t belong on our highest court; it is more than sufficient that he probably committed at least one of the offenses alleged.


Unsung Success

Hurricane Maria killed 2,982 people on American soil – 2,975 in Puerto Rico, four in the contiguous United States, and three in the U.S. Virgin Islands. More lives were lost on American territory to Hurricane Maria than to any other hurricane since the 1900 Galveston hurricane, which is recorded as the worst natural disaster in American history. Hurricane Maria was less deadly than the 9/11 attacks by just 14 lives.

George W. Bush’s handling of Hurricane Katrina is widely, and justly, regarded as the paradigm of incompetent federal disaster management – and Hurricane Katrina killed 1,146 fewer people in the United States than Hurricane Maria did. But Donald Trump wants us to know that the federal response to Hurricane Maria was an “unsung success.”


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