Peripheral Thoughts on the Impending Confirmation of Justice Kavanaugh.
Like so many others, I have been deeply affected by the Kavanaugh Saga. As the current round winds down, with the FBI closing its investigation and supplementary background checks, and with Senator Mitch McConnell about to take the baton passed to him from Senator Chuck Grassley and race to the finish line, these peripheral thoughts begin to emerge:
1. At what point do we call inconsistencies “lies,” and at what point may we start calling Christine Blasey Ford a public liar?
During the Ford-Kavanaugh hearings before the Senate Judiciary Committee, the most dishonest public liar in the United States Senate, Richard Blumenthal of Connecticut, hit on something: falsus in uno, falsus in omnibus. The Latin term (“false in one thing, false in everything”) sometimes is used in jury instructions; it means basically “If the person has lied in one thing, he or she probably has lied in a whole bunch of other things, so you really have to wonder how the person can be trusted for anything.” For example, Blumenthal got caught publicly lying about serving militarily in Vietnam. He may be deemed dishonest in everything.
Initially, at the Judiciary Committee hearing, Christine Blasey Ford presented publicly as a credible witness, describing a horrific event that happened earlier in her life, nearly four decades ago. She spoke in a voice and demeanor that was compelling. Although she did not persuade that she was identifying the correct attacker, her basic account of an attack came across as highly credible. However, it now emerges that several other segments of her testimony — sworn and spoken the same day at the same hearing in the same voice with the same credibility — were lies.
We now know that it is a lie that she has psychological difficulty flying in airplanes. Rather, we now know that she has flown all over for years and years, not merely compelled by the exigencies of business or family obligation but for fun and leisure.
We now know that it is a lie that she is so claustrophobic that she cannot live in a small place. Rather, she rented a home of 500 square feet.
We now know that it is a lie that she put two front doors into her home remodel because of claustrophobia derived from the attack to which she testified. Rather, she was renting out part of her property, and that necessitated a separate ingress-egress for the renter.
We do not know whether it was she who was lying when she said she had no idea that the Senate Judiciary Committee had offered to fly to California to take her testimony since she was unable to fly, or whether her attorney violated the rules of professional legal ethics by failing to report to the client an offer made by the opposing side.
At bottom, if Blumenthal is correct — and, since he is a liar and thus cannot be trusted, one must be circumspect — then Ford cannot be trusted. Because there comes a point when a person’s multiple “inconsistencies” have to be called out for what they are, no matter how sweet the voice, how sincere the vocal tone modulation. The lady is a public liar under oath. She just is.
And that brings us back to everything. Did she actually coach someone on how to take a lie detector test? And what does that tell us about her polygraph? A lie detector is not a test where a trained scientist stares into the speaker’s eyeballs (like Larry David in Curb Your Enthusiasm) to see whether a little angel from G-d is in the person’s pupils and shaking its head “No, he’s lying” or nodding “Yes, it’s true.” Rather, the polygraph measures changes in the heart beat and pulse, blood pressure and skin conductivity, that usually accompany lying when a lying person feels the tension of being exposed. For that reason, pathological liars — people who are so internally dishonest that they convince themselves they are telling the truth when they are not — can beat lie detector tests. They do not feel nervous. That is why polygraphs are not admissible evidence.
So where does that leave a fair-minded juror? Ford says she drank only one beer that day thirty-six years ago. Is it believable that even an honest person would remember drinking beer, but only one beer, on a day four decades ago. Not maybe a second beer? Or a third? Or maybe none. What else did she eat that day? Was it four guys, or three guys and a woman, and all those questions about how she got there and got back. And — just because curious minds want to know: Has she even undergone hypnosis? If so, there are even more questions to ask.
2. What became of the “party boys” who attended high school thirty-six years ago?
I attended a yeshiva high school in Brooklyn. In my circles, we did not go to all that many parties as teenagers. It was an all-boys school, and most of us had little or no boyfriend-girlfriend relationships. In my circle, we had our “fun” by going to Madison Square Garden to watch the Knicks and the Rangers, to Yankee Stadium and Shea to watch the Yanks and Mets, and back to the Garden to watch Bruno Sammartino and Bobo Brazil wrestle the likes of Gorilla Monsoon, Killer Kowalski, George “The Animal” Steele, and Ivan Koloff. But in our own way, there were some of us who were less disciplined than others.
We gave substitute teachers a hard time. Should that be disqualifying for the Supreme Court? On a local AM radio station, there was a disc jockey named Frank something-or-other, and the station constantly played a voice saying “Attaboy, Frankie.” So all we needed was a sophomore year English teacher named Mr. Frank, and he never had a chance. For three weeks, individuals would pipe in from all over the classroom “Attaboy, Frankie.” He quit in three weeks. Having discovered our power, no other English teacher lasted more than a month that year. There was the time that one of the guys kept whispering in the back of the classroom “Gimme liberty or gimme death.” It went on for twenty minutes until the teacher furiously scanned the room, looking for the culprit: “OK, that’s it. Come on, big shot, show yourself. Well, who said it?”
And of course everyone responded in unison: “Patrick Henry.”
So it was four years of nonsense. The kid who opened a canister of some foul-smelling substance, forcing the history teacher to clear out the room. The morning game of “slow-motion football,” where eight of us played five minutes of tackle in the classroom right before the teacher arrived, and the rule was you had to move in slow motion. So, somehow, all eight of us ended up in a massive tackle, and we rolled right through the wall. Then the teacher shows up a few minutes later, his nose buried in the morning newspaper he has been reading while walking down the hall, and he unknowingly walks into the classroom not through the door but through the hole-in-the-wall we just caused. Should that be disqualifying for the Supreme Court?
So, as I listened to Senator Whitehouse of Rhode Island cross-examine Brett Kavanaugh on his high school yearbook page, exercising masterful investigatory skills in drawing out everything the American people need to know about teen boys passing gas orally and anally, it occurred to me to look up whatever became of the biggest clowns and jokers in our class (aka my best friends in high school). There were two of them in particular. We knew them as “Makkah” and “Mageifah” (synonyms in Hebrew for “Plague” — one of our teachers had compared them to two of the ten plagues that befell ancient Egypt).
It turns out that Makkah became a hugely successful medical doctor. And Mageifah became even greater: a clinical professor of medicine, one of the world’s leading experts in a particular medical condition, affiliated with two of the most prestigious hospitals in America. That’s what became of two teenage rowdies thirty-six or so years later. Should they be disqualified from practicing medicine?
I also looked up one more guy. In my early rabbinic years, I taught yeshiva high school, both in the theology department and in social studies. I had a particular student who really was a piece of work. He got into lots of fights, once punctured a kid’s fist with his sharpened pencil. Nasty stuff. What ever became of him? I looked him up. He became hugely successful, a millionaire, major charitable donor, with a particular interest in… polo. A true gentleman’s sport worthy of a true gentleman who thirty-six or so years earlier, when he was a runt of a teen, poked a kid with a pencil.
Ask yourself: Did rowdy boys whom you knew in their teens remain rowdy, or did they make something of their lives? At a job interview, would you regard their teen behavior of thirty-six years earlier relevant to their qualifications now? Even a heavy teen drinker. Once a kid stabilizes and grows up, matures, do we really care that he used to drink thirty years ago? What kind of society would we be, what motivation would anyone have to improve and to better oneself, if our society were the sort that pinned a badge of shame on someone for his teen behavior? And where would that leave men who, when younger, groped women’s breasts against their will, as Cory Booker did.
3. Does Ruth Bader Ginsburg still have the judicial temperament to sit on the Supreme Court?
Any discussion of judicial temperament needs to take cognizance of several considerations. In the case of Brett Kavanaugh, he has been a judge for years and has had scores of federal judicial clerks work for him, peer colleagues on the bench participate with him in closed-door deliberations after oral argument before rendering judgment. It is telling that he emerged with the highest approval rating from the American Bar Association. The man has enormously appropriate judicial temperament.
It was appropriate for Brett Kavanaugh to express outrage, indignation, and intense passion when he finally got his forty-five minutes to speak his piece before the Senate Judiciary Committee and the American people after he had been compelled to absorb days and days of the most vile calumny. Had he been softer, more genteel or “even-keeled,” the honest take-away would have been: “No guy who has been falsely accused on the public stage of attempted rape would be that nonchalant in addressing the charges if he really had not done it.”
Judges are people. They have personalities. They laugh and cry, just as do the rest of us. Professionals are adept and expert at separating private lives from professional lives. Many people, for example, curse behind closed doors, but they have the professionalism not to do so in public. At home they deal with financial pressures, nasty in-laws, neighbors who are challenging, kids’ bad report cards, broken and faulty appliances, homeowners associations, and the full gamut of aggravations. They leave that at home when they go to work. A long-experienced federal judge like Brett Kavanaugh has the record that validates the excellence of his judicial temperament. Moreover, a Supreme Court justice does not operate in a vacuum. He or she sits with eight other justices, as well as with the law clerks, asks reasoned questions at oral argument, and then discusses and evaluates cases with those peer colleagues. For simple self-respect while spending each day at work with peers, a Supreme Court justice will manifest the highest level of appropriate temperament, and he or she knows that millions of eyes always are watching.
The question that does arise is whether something has changed these past two years in Ruth Bader Ginsburg. She has become a hero of the Left by attacking President Trump. It is personal. She has spoken, and we all have read and heard. She hates the man, and she surprisingly has lost that internal thermostat that inhibits a proper judge from being so candid about how much she hates someone. It seems impossible to reconcile how she can sit as a justice on any case matter that touches on Trump Administration policies and initiatives. Her prejudice is palpable. It seems quite impossible to reconcile her refusing to recuse herself when any matter stemming from a Trump initiative comes before the Court.
4. Have you ever personally known someone whose excellent name and reputation were under concerted attack?
In a career spanning more than three decades, I personally encountered one employment situation that was remarkable for the morass. The matter lasted three years because, like Judge Kavanaugh, I do not back down, and I made clear to my detractors that I am not going anywhere except on my terms. My detractors were only ten to fifteen people among a larger group of 150 people who actually loved me — that strong popular support was documented unequivocally in a survey that was mailed to the entire body — but the ten or fifteen were the insiders. It was a tough time in my life. Aspects of character assassination were done to my wife, my son, and me that I share only with very close confidantes. It made us stronger as a family, tighter than ever, but it put us through terrible hell.
Every morning there was a new allegation, a new charge against me. Nothing sexual… but just about anything else imaginable. I would come to work, whistling a happy tune having finally put the last attacks to bed, only to learn that a new issue was starting today. It never ended.
Each attack took between one to three weeks to overcome, to defeat, and again to clear my name and reputation. I continued working on my regular daily agendas very vigorously, and I achieved a great deal, but the detractors never let up, always searching for something new. When they had nothing, they came up with extraordinary ways to foment new issues. In one infamous example, one of them got into my personal daily planner, and that began a whole new round. Soon, they were demanding that I detail my every minute of the day, my every meeting, even its confidential substance.
It went on for nearly three years. In the end, I retained one of the best employment law attorneys in the field, and I got a six-figure settlement. I also emerged stronger because I had been through it and survived it. My relationship with my wife became so lock-tight, indescribably so, because she had stood by me every step of the way, even helped me strategize and make some critically important decisions wisely. Ultimately, I came out a huge winner. These past eleven years, since that three-year blip, have been the happiest years of my life. And having survived that, no one can intimidate me.
For me, the Brett Kavanaugh Saga has been very deeply personal. Just as Kellyanne Conway and others have been telling media that the issue of sexual abuse is personal because they also encountered that, for me the issue of professional abuse and attempted character assassination by cynical immoral and unethical assailants is deeply personal because I faced that and am a survivor. No, don’t feel sorry for me — because, when you have faced character assassination and won, you are unstoppable. And that is what the Democrats now will have on their hands with Justice Kavanaugh. He is going to beat it. He will be on the bench in another week. He and his wife will grow even stronger together. His kids will heal. They all will carry scars, but the wounds will heal. He will be unstoppable, not the same person he was as recently as four months ago.
And if the Democrats try to impeach him, bring it on. Go ahead, make our day.
Sheldon Whitehouse (Wikimedia Commons)