Thursday’s Ford-Kavanaugh hearing posed severe potential pitfalls and minefields for the GOP. If Christine Blasey Ford were to be cross-examined too fiercely, especially if serially by eleven mostly older Republican men, the stakes would be far more perilous than losing a Supreme Court nominee on the precipice of confirmation. More dangerously, such a debacle could drive independent white women voters who have backed Republicans and who are enjoying a robust Trump economy, to remain home six weeks from now on Election Day or, worse, to vote Democrat. However, if Dr. Ford were not to be challenged effectively, that also would imperil Republicans as the GOP nevertheless would be standing by a damaged SCOTUS nominee under a dark cloud. And, regardless of how the Ford questioning would play, there lay additional peril in Judge Kavanaugh’s scheduled subsequent testimony. To be believed in his denials, he would have to show indignation and passion, controlled outrage and righteous anger. Yet, such a possibly heated presentation could negate the carefully crafted public image of “calm and reasoned judicial temperament” expected of a Supreme Court justice.
Looking back on the day’s riveting events, it is amazing how effectively the Republicans and Judge Kavanaugh sidestepped the perils and emerged perhaps even stronger than the morning augured.
Initially, during the early rounds of the Ford questioning, the Republican strategy of assigning all questioning to be conducted by the expert Maricopa County sex-crimes prosecutor, Rachel Mitchell, seemed a GOP strategic disaster. After each Democrat Senator received five uninterrupted minutes to praise Dr. Ford for courage, heroism, and other such nouns of platitude, Ms. Mitchell would return to her strategy of conducting what seemed like a seven-hour deposition broken in five minute bursts. Not even “bursts” but five-minute puffs. None of us litigators in the legal field ever before has seen anything quite like that surreal effort. It just seemed like someone experimenting with a new art form that just is not working. Imagine watching a three-hour television program or movie where a five-minute commercial is interposed after every five minutes of programming.
As the first half of the day wound down, with Mitchell coming to the end of her on-off-on-off-on-off-on-off-on-off-on-off-on-off-on-off-on-off-on-off parrying with Dr. Ford, it was not quite clear whether the GOP had shot itself mortally with the strategy. Certainly, Mitchell did elicit a few whoppers. Democrats had insisted for days on delaying the hearings — ideally, until after the November elections — partly on a claim that Dr. Ford has some sort of fear of flying. Thus, Democrats insisted that it would take days upon days for Dr. Ford to drive from her home in California to Washington, D.C. In response, Sen. Charles Grassley and the Senate Judiciary Committee Republicans offered to fly to the West Coast to interview Dr. Ford there. Yet, under Ms. Mitchell’s gentle, genteel, and warmly smiling questioning, it emerged that Christine Ford actually is a major frequent flier, who flies the globe (albeit not to Australia) not only for business but also for pleasure and hobbies:
MITCHELL: I also saw on your CV that you list the following interests of travel, and you, in parentheses put “Hawaii, Costa Rica, South Pacific islands, and French Polynesia. Have you been to all these places?
FORD: Yes.… It’s easier for me to travel going that direction when it’s a vacation.”
Even more incredibly, she testified that she did not know that the Senators had offered to fly to California for her convenience.
How was it possible that she did not know? First, it was front-and-center national news that everyone in the country knew — that Sen. Grassley had offered to bring the Committee to the West Coast. Second, it is an attorney’s obligation to convey to a client every offer placed on the table. Some may remember the scene in The Verdict where Paul Newman’s character fails to inform his clients that he is negotiating a settlement on their claims. I teach my law students that it is an attorney’s fundamental obligation to advise a client of each and every offer, no matter how much the attorney devalues it, because the client is the final decision maker; the case and the representation belong to the client. See, e.g., Blanton v. Womancare, Inc., 38 Cal. 3d 396 (1985). Did Dr. Ford’s lawyers withhold from her the Senators’ offer to accommodate her? And did they fail to coordinate with her their story on how she hates to fly?
None of the revelations drawn out by Ms. Mitchell even remotely was a knockout punch, but they did confirm inconsistencies and did underscore lingering questions: Who paid for Dr. Ford’s lie detector test? Why did she even seek a polygraph? To whom did she initially go with her account? How many people were in that house of that party? Was she attacked by two men? By one man? In all, were there four men on site (her therapist’s notes of the event that Dr. Ford recounted), or was it three men and a woman on site (Dr. Ford’s subsequent version)? If 15-year-old then-Christine Blasey did not then own a car and lived far from the location of the street intersection where she placed the house, how did she get there? How did she get back? And the gentle questions concluded with Dr. Ford’s intriguing answer to the lingering question as to why her female friend whom she places at the party, Leland Ingham Keyser, utterly denies the core elements of Ford’s allegations. For the first time, we hear from Dr. Ford that we really should not go there too deeply because Ms. Keyser has some kind of illness for which we only can wish her well. Thud.
Nonetheless, although Ms. Mitchell did elicit some narrative and draw out some contradictions, the Republicans and Judge Kavanaugh were losing at half-time. It was clear that the judge would need to do something quite out of character — transcend calm judicial temperament, like the robotic presentation he had given at a Fox interview with Martha McCallum — and instead display intensity and passion, outrage and righteous indignation. It was not clear whether he had that in him, but it was clear that anything less would leave great doubt because anyone accused of so many heinous crimes would burst emotionally if truly accused unfairly.
And Judge Kavanaugh met the challenge of the moment. His 45-minute opening statement was powerful and evocative, consistent, methodical, yet passionate and emotional. He both tearfully spoke of how his name was being destroyed, his family destroyed, his career as a teacher destroyed, even his opportunity to coach children’s basketball destroyed, and yet he also laid out a profoundly persuasive evidentiary argument refuting claims against him. Not only did he emphasize the denials and refutations by every one of the four alleged on-site witnesses whom Dr. Ford had claimed, but he also presented a compelling evidentiary argument from his personal daily calendar of the summer of 1982. Few teens maintain a daily calendar during their high school years, and only the serendipity of his having a father who did so — and his clear idolizing of his dad and his teen-years desire to emulate him — had led 17-year-old Brett to do so. What a compelling piece of unexpected contemporaneous evidence that calendar offered! By the time the judge had ended his riveting opening statement, the mood of the chamber and the entire day had shifted. It now was a matter of holding the new ground he just had won in the face of ten respective forthcoming five-minute Democrat attacks, while allowing Republican senators to use their time to help him restore that stained good name he had cultivated over a lifetime.
At first, for two five-minute rounds, again the Republican senators assigned their time to Ms. Mitchell. And she rapidly and efficiently posed all the allegations against Judge Kavanaugh, inviting him dispassionately to deny each under oath, which he did instantly and with certainty. But the Rachel Mitchell Tactic then had to stop, and the Republicans needed some fire and brimstone. Enter Sen. Lindsey Graham, who probably recorded his finest hour — more literally, the signature five minutes of his life’s work. The passion, the indignation, the outrage of his remarks — and the intense sincerity in his eyes tearing, his lips quivering, his voice thundering — both complemented Judge Kavanaugh’s opening statement, while also signaling that Kavanaugh was not alone in those feelings. It now remained for Kavanaugh to handle the ten respective mini-attacks from the Democrats, and he handled them well — initially perhaps still a bit overheated, but after a recess hitting a more perfect balance, transitioning back to the judicial temperament while still fiercely rejecting falsehood.
It was remarkably telling how little the Democrats asked about the allegations proffered by Deborah Ramirez and Julie Swetnick. The liberal New York Times had investigated Ramirez’s story and had decided to ignore it, and so did the Democrats slowly realize they should, too. The Swetnick story was so ridiculous that its very mention threatened to cast the entire Democrat prosecution into disgrace. In the end, it seemed that each Democrat was left with little but a few minutes to raise unsubstantiated innuendoes, to elicit the revelation and admission that certain immature teen boys giggle over passing gas, vomiting, and how one of them elongates pronouncing a common filthy word. Left with nowhere to go, without evidence to support any of Dr. Ford’s allegations against Judge Kavanaugh, each Democrat ultimately reverted to the safe harbor of asking for an “FBI investigation” that each knows is a cover story and smokescreen for yet another round of delay. Joe Biden said it best, so effectively, that his one-minute refutation of seeking an “FBI investigation” must be watched, not merely quoted or transcribed.
By the end of the day — literally, not as a meme — Dr. Ford had been interviewed respectfully and gently by an ostensibly empathetic woman skilled in the field of protecting rape victims; inconsistencies and discrepancies in her accounts gently had been highlighted; and Brett Kavanaugh had riveted viewers and the American public as they watched a man successfully fight to defend his name, his honor, and his family. Lindsey Graham had displayed something — a moment of historic greatness — we had not before seen in him. Sheldon Whitehouse had uncovered teen boys’ nicknames for flatulence and drinking parties. And Dianne Feinstein had managed to convince the public that the best news about her competence in 2018 may have been the revelation a few months ago that she had hired a spy for China to chauffeur her around for 20 years.
There was never a chance that any of the day’s events would change a vote from The Resistance. But, by day’s end, there no longer should be any doubts for Republican Senators Jeff Flake, Susan Collins, and Lisa Murkowski that justice will lie with voting to confirm Judge Kavanaugh as the newest justice on the United States Supreme Court. And then, as Justice Clarence Thomas has experienced, time will heal, new lies and scandals and crises will overtake those of today, and Justice Kavanaugh will be publishing Supreme Court decisions alongside Justice Thomas with fairness and justice long after today’s inquisitors from The Resistance have passed and disappeared from the stage of American politics.
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