A Kavanaugh Compromise

Photo: Jim Bourg, Reuters
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.

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9 Responses to A Kavanaugh Compromise

  1. JB says:

    The problem is that:
    1) Stuff could come out of this week’s investigation that will allow the Democrats to push the Kavanaugh vote after the 2018 senators are seated, which gives them a 1/3 chance at stopping a conservative majority on the court. If there is a 10% chances of this, that gives Dems a 3% chance of winning the nomination battle.
    2) Other stuff could come out after Kavanaugh’s seating that could lead to his impeachment, even by a GOP senate. This also seems unlikely, but it now seems more likely with Kavanaugh than with any of the other short-listers. Let’s say 2% chance of that.
    3) I’m not really convinced by your Current Affairs article (the fact that he takes the Avenatti stuff seriously undermines his credibility, and I generally interpreted BK’s “I went to Yale!” stuff as not so much evasion, but playing the same lets-talk-about-unrelated-subjects game as the senators), but there is probably enough with the Devil’s Triangle bit that a Senate supermajority could impeach him on it. It would be nakedly political, but I think it would be a much better look to impeach BK on a party line vote than to pack the court, and you could do it without a Democratic president (assuming RBG stays alive so that an empty seat means a tied court). Let’s call the odds of a Democratic house and senate supermajority occurring with the current set of justices, what, 1%?

    So the Dems give up Feinstein, which is a loss for them, but trading BK for ACB is also a loss, since you give up a ~6% chance of swinging the court without court-packing or Thomas dying.

    So this seems like less of a “compromise” and more of a “unilateral disarmament”. Unless you think that Dem voters will be more pleased by killing BK than they would be by letting another shortlister get on the court. This seems plausible, but I’m not at all certain that it’s the case.

    • BCSWowbagger says:

      I appreciate the thoughts!

      It’s certainly possible Kavanaugh will be stopped anyway by something in the investigation (I’d actually give higher odds of that than you do), but I think you overestimate the chances that the Democrats will be able to hold the seat open until January. The GOP has the Senate through the end of the lame duck. That’s loads of time. And I don’t see even Sen. Collins getting cold feet about a nominee in that scenario. So I put the odds of Dems winning the nomination battle outright, without a compromise, at… maybe 1%.

      And I think the odds of a supermajority impeachment are extremely close to zero over the next ten years. In the House? Sure, could happen. In the Senate? The last time a partisan supermajority occurred there was in 1964, and I think it is simply impossible on today’s map. (That lost supermajority depended on small-state Dixecrats.)

      You’re still right that compromising here would forfeit Democrats their 1% chance at swinging the Court. If they want to stop Kavanaugh because they think he’s illegitimate, that seems worth it to me. But their mileage may vary.

  2. JB says:

    There appears now to be some corroboration of BK’s definition of ‘Devil’s Triangle’ and ‘Boofing’:

    https://www.huffingtonpost.com/entry/brett-kavanaugh-boofing-devils-triangle_us_5bb6998ce4b028e1fe3c224c

    Admittedly, this could a more-specific, more-dangerous-to-the-doer version of people-editing-the-Devil’s-Triangle-wikipedia-page to make his testimony look good. But it also seems very reasonable that local early-80’s slang is not reproduced on the internet with high fidelity, and that these are among the few people who would actually know.

    If we take his classmates seriously, I don’t think there is any case that he perjured himself. Of course, the case that he is way worse than ACB remains, so I’m still on board with swapping them!

    • BCSWowbagger says:

      Yes, I found this very compelling and most encouraging. I take sworn statements seriously, whatever side they’re for!

      I also came across a friend who is not very politically engaged but told me he DID play a drinking game called Devil’s Triangle (similar but not identical to this one) in the early 2010s. And someone sent me a link to a book from 2004 that named “boof” as a synonym for “fart.”

      So, yeah, I’m very pleased with how that turned out, and at some point need to re-evaluate whether the stand I took here was the correct one.

  3. David says:

    Any further thoughts on the matter?

    • BCSWowbagger says:

      Other than the five-paragraph update at the end? I don’t think so. I have a great deal of ambivalence about how it turned out, as I suppose I would have no matter what happened.

      • David says:

        Oh? You appeared to exonerate Kavanaugh by your own standard. What remains to be ambivalent?

        • BCSWowbagger says:

          I still have some real questions about some of Justice Kavanaugh’s other testimony.

          And, beyond that…

          *deep breath*

          Yes, I think that the preponderance of evidence standard was not met, and that it would have been unjust and imprudent to block Kavanaugh’s confirmation without meeting that standard. We cannot terminate nominations on the basis of 30-year-old he-said/she-saids.

          But I will be forever ambivalent, because, when I get right down to it, and I look this he-said/she-said square in the face… I don’t believe Kavanaugh’s story. I believe Dr. Ford. If you held a gun to my head and forced me to pick the true account based on the limited evidence we have, I’d pick Ford’s story every time and twice on Sundays.

          Again, there’s not enough evidence to act on it. I get that. I’m not calling for Kavanaugh’s impeachment. But I’m always going to have a slightly queasy feeling about him — a feeling I don’t have about Gorsuch or Roberts or even Thomas (whom I DID believe).