The Most Narrow Possible Case Against Kavanaugh

Michael Tracey
4 min readOct 5, 2018

Stipulate that Brett Kavanaugh has been the victim of a cynical partisan attack by Democrats, who have employed the lowest tactics imaginable to stymie his confirmation. Stipulate too that Democrats are so inflamed by the precedent of the Merrick Garland episode, about the prospect of a generations-long change to the ideological composition of the Supreme Court, and about Donald Trump more generally that some among them would even go so far as to countenance such an extreme tactic as fabricating sexual assault claims in order to achieve their current political objectives. Stipulate that Kavanaugh is totally innocent of assault — that every allegation against him has been cooked-up by craven opportunists and amplified by an unscrupulous, Trump-hostile media. And further stipulate that Senate Democrats have infused the entire confirmation process with epic levels of bad faith, shielding their true intention: to delay past the midterm elections. So they’ve invented endless asinine procedural objections designed to accomplish nothing but additional delay, which more than justifies conservatives’ skepticism of how every aspect of this sordid ordeal has unfolded.

All that being stipulated: Brett Kavanaugh made multiple demonstrably false statements under oath, which is disqualifying for a lifetime appointment to the Supreme Court.

Let me throw in a few more disclaimers. I personally am opposed to Kavanaugh on judicial philosophy grounds, principally for his deference to expansive executive authority and lack of regard for civil liberties, and I would have advocated against his confirmation separate and apart from these under-oath falsehoods. I can acknowledge that this pre-existing opposition might color my view of his statements, and incline me to view them as more deceitful than they really are. But I can also posit that even if I supported his judicial philosophy, I would prefer that he withdraw and someone be nominated who did not tell multiple falsehoods under oath, because this tendency to deceive reflects poorly on his wider jurisprudence, and might even serve to de-legitimize decisions he writes that I would otherwise agree with.

Now, let’s review the deceptions. I will purposely avoid using the word “perjury,” because perjury is a crime, and requires proving intentionality. In other words, for Kavanaugh to be charged and convicted of perjury, it would have to be proven that he willfully made false statements. This is a high evidentiary standard to meet, and doing so is not even necessary. It is sufficient to simply demonstrate that he made multiple false statements, without concluding anything one way or another about intentionality.

Here is a statement that Kavanaugh made on at least six separate occasions at last week’s hearing, with slight variations:

“All four witnesses who were allegedly at the event have said it didn’t happen, including Dr. Ford’s longtime friend, Ms. Keyser.”

There’s no other way of putting it: this statement is simply false. It’s provably, demonstrably false. What Keyser actually said, by way of a letter issued through her attorney, was that she “does not know” Kavanaugh and “has no recollection” of ever being at the gathering in question. Nowhere in the statement does Keyser specifically deny that the event happened. Kavanaugh deceptively characterized the statement at least six separate times.

If this seems an overly fine-tuned parsing: Kavanaugh is a skilled lawyer and federal judge. Parsing comments is what he’s developed an expertise at doing for his entire adult life. And furthermore: in what context would fine-tuned parsing be warranted, if not a Supreme Court nomination hearing? Kavanaugh has to be held to the standard expected of a federal judge testifying under oath, not of some political operative whose statements deserve the most charitable possible interpretation.

In a widely circulated post, Nathan Robinson of Current Affairs provides an exhaustive assessment of the larger body of Kavanaugh’s statements which, in totality, clearly demonstrate a pattern of deception. While this exhaustive assessment is useful, it’s not even needed for the narrow purpose of showing that he made false statements. Any false statements made under oath are disqualifying. He repeated the falsehood related to Leland Keyser’s account of the gathering at least six separate times. I’m focusing exclusively on that falsehood here, even though there are other examples, because again: just one falsehood is all that’s needed to render him disqualified. All politicians lie? Sure. All federal judges nominated for lifetime Supreme Court appointments tell falsehoods under oath? No. These are vastly different contexts.

It’s true that the inordinate focus on Kavanaugh’s yearbook entries has sometimes veered into absurdity. Under intensive probing, anyone’s high school slang would probably come across as ridiculous. It’s highly possible that “devil’s triangle,” for instance, was a multi-layered inside joke which referenced both a drinking game (as Kavanaugh claimed) and a sexual act, and the meaning was contingent on a context knowable only to a small group of teenage buddies in 1982. Therefore, Kavanaugh’s statements on this during the hearing might have omitted relevant details, but weren’t necessarily false. But that’s immaterial for my narrow purposes here. The case for concluding that Kavanaugh made false statements under oath doesn’t hinge on the disquisitions related to his yearbook entries. It can hinge solely on the Leland Keyser characterizations, because one falsehood is one too many.

Notice what pointing out that Kavanaugh made false statements doesn’t require: it doesn’t require finding him guilty of sexual assault. It doesn’t require validating Democratic tactics, which were indeed often inane and manipulative. It doesn’t even require rendering judgment one way or another on whether Kavanaugh’s unprecedented emotional display last week was warranted given the circumstances. All it requires is a plain reading of the transcript.