A Kavanaugh Compromise

Photo: Jim Bourg, Reuters

This post has been updated. See the bottom of the post for details.

Senate Republicans should offer Senate Democrats a deal:

(1) Kavanaugh is rejected. (2) Feinstein resigns or is expelled. (3) Expedited hearing schedule for Kavanaugh's replacement... or no hearings for a nominee who has been through Senate hearings during this Congress.

Kavanaugh was always my third choice for the Court, and I have serious concerns about some of his testimony Thursday. As far as I have read, nobody, not even in 1982 Virginia, ever defined "boofing" or "devil's triangle" the way he did. Even a single lie under oath is disqualifying and impeachable, even if the question asked was inappropriate or irrelevant—something I have held since the Clinton impeachment.

Combine this with Kavanaugh's record on the D.C. Circuit, where his reasoning was (in my opinion) just a bit too politically motivated, and with the damage his confirmation would do to the legitimacy of the Court and/or John Roberts' willingness to be part of the conservative majority... and I just don't think he belongs there. That's before considering my serious doubts about his innocence. (It is implausible that he was never blackout drunk, as he maintains, and it would be awfully strange that Dr. Ford started telling her friends Kavanaugh assaulted her in 2013, when Obama was just starting his second term, simply to lay the groundwork to make a charge in 2018... but her charge remains unsubstantiated.)

My conservative friends are, of course, correct that Kavanaugh deserves the presumption of innocence. But the presumption can be rebutted by evidence, and I think there is sufficient evidence to draw at least a tentative conclusion that Kavanaugh deliberately deceived Congress, whether or not he committed the assault in question. To my conservative friends who still doubt this, see Nathan Robinson's comprehensive (if overconfident) analysis in Current Affairs, "How We Know Kavanaugh Is Lying." I think we can only say Kavanaugh is probably lying, but that should still be enough to end his nomination.

At the same time, Republicans are correct that we can't legitimize the outrageous tactics the Democrats cynically used to derail this nomination. I don't like Lindsay Graham (a devoted moderate and lover of the military-industrial complex), but his explosion at the Democrats was both justified and a sign of just how egregiously they'd crossed the line. If Republicans simply reject Kavanaugh without concessions, this will happen again. Democrats will uncover (or fabricate) some explosive charge which they'll sit on during hearings then detonate just before the confirmation vote, doing maximum damage to the nominee, to the Courts, and to the Republic as a whole—all in an attempt to run out the clock on the lame duck session and protect their sacrament, abortion, from judicial review by judges who follow the Constitution. (Remember: they did the exact same thing with Clarence Thomas. Whatever you think about Anita Hill, the Democrats sat on her allegation until the last minute.) They have to pay a price, one that makes clear this will never happen again.

To my progressive friends who still doubt this, see Andrew Sullivan's piece in NYMag, "Everyone Lost at the Kavanaugh-Ford Hearings." (And if you don't like Sullivan, progressive friends, bear in mind I just made all my conservative friends read Current Affairs a couple paragraphs ago.)

Feinstein's a good sacrifice. She was at the center of this thing. The hearings revealed what she knew and when, and it was damning. She is highly culpable for what happened here, whether she acted out of malice or sheer incompetence. The Left is already ticked at her for her relatively conservative voting record. Her departure bears zero risk for Democrats, because California's jungle primary system has locked Republicans out of the general election this November. Feinstein's only opposition is a significantly more progressive candidate, who will win by default if Feinstein is knocked out. But her expulsion makes the Senate's displeasure with her actions crystal-clear, and creates a cost that will hang over any senators who try shenanigans like this ever again. Expelling Feinstein is a win for the progressive Democrats that simultaneously allows the GOP to save face in withdrawing Kavanaugh.

The Democrats then must allow the Republican rejection of Kavanaugh to be equally risk-free. Thus, expedited hearings for the replacement. Democrats lose a Senator but keep her seat in the party (and actually get a better progressive out of it); Republicans lose a SCOTUS justice but keep his seat for conservatism (and possibly even a better conservative). In both cases, the guilty are punished and the legitimacy of both institutions is preserved, perhaps even reinforced.

The odds of this happening are basically zero. I can't even think how you could start negotiating it in the current climate without immediate leaks undermining each side's capacity to negotiate. But it seems to me like the only way forward anyone has suggested that gets us through this without wrecking the Supreme Court confirmation process forever. The process was abused here by Democrats to destroy the reputations and to some extent the lives of both Judge Kavanaugh and Dr. Ford. That abuse nevertheless exposed some issues with the Kavanaugh nomination that make him unsuitable for the Court. If everybody pays a price for that, we can get back to where we were six months ago. And I think what I've proposed allows everyone to de-escalate while saving face and not paying too painful a price.

Otherwise, barring some extraordinary discovery in the FBI investigation, political calculus on both sides will ensure Kavanaugh's confirmation.

UPDATE: I hold people to a very high standard of truth when they testify under oath. I supported the impeachment and conviction of President Clinton for perjury. I supported the arrest and prosecution of James Clapper for the same crime. Lying is a grave crime against those lied to, one we do not take nearly seriously enough as a culture.

And so it was that I was willing to deny Judge Kavanaugh a seat on the Supreme Court in no small part on the basis of a few "small" lies about his yearbook quotes. Specifically, he claimed that "boofing" was a reference to flatulence and that "Devil's Triangle" was a drinking game, whereas my own knowledge of those slang terms suggested darker meanings, and I could find no corroboration for Kavanaugh's version. When the New York Times found classmates who claimed that, at Georgetown Prep in the 1980s, both terms had the darker meaning, I accepted their claim and decided Kavanaugh was probably lying about his yearbook. If he was lying under oath -- even about this stupid ridiculous question that probably should never have been asked -- then Kavanaugh could not be fit for the Court.

But, as it turned out, Kavanaugh was probably not lying about these things after all. Devil's Triangle seems to have been a drinking game. Six classmates attested to that, under their own names, under penalty of law, in two separate letters to Congress. (The classmates the Times cited to attack Kavanaugh's position were anonymous.) Precisely because I hold people to such a high standard of truth, I take witness testimony very seriously. (I also believe the sworn declarations by friends of Dr. Ford who said that she identified Kavanaugh as her attacker in 2012 and 2013.) But the Devil's Triangle case was further boosted by a close analysis of the rest of the yearbook, which contained a number of indications that it referred to a drinking game and that the name was "founded" at the Prep -- which all but rules out the possibility that it shared the same meaning as the general-use slang term.

As for boofing? At the time I wrote this article, I was aware of no corroboration of Kavanaugh's claim that it had ever referred to flatulence in any context, anywhere. But, in fact, "boof" is listed as a synonym for flatulence in 2004's The Art of the Fart, and the earliest article I could find using the term (from 1993) seems to support the claim -- if "boofing" had a particular sound, it could hardly refer to anal injection of alcohol, as Kavanaugh's detractors insisted... but it makes a great deal of sense if it refers to farts.

Did I expect to end up carefully litigating flatulence when this confirmation began? No. Is it pretty ridiculous? Yes. But it is important to vet the truth of what our judges say under oath... and I'm happy to say that, on this point, at least, Judge Kavanaugh has been seemingly vindicated.