[I]f I were a senator, I would vote against Kavanaugh’s confirmation. I would do it both because of Ford’s testimony and because of Kavanaugh’s. For reasons I will describe, I find her account more believable than his. I would also do it because whatever the truth of what happened in the summer of 1982, Thursday’s hearing left Kavanaugh nonviable as a justice.
A few days before the hearing, I detailed on this site the advice I would give to Kavanaugh if he asked me. He should, I argued, withdraw from consideration for elevation unless able to defend himself to a high degree of factual certainty without attacking Ford. He should remain a nominee, I argued, only if his defense would be sufficiently convincing that it would meet what we might term the “no asterisks” standard—that is, that it would plausibly convince even people who vociferously disagree with his jurisprudential views that he could serve credibly as a justice. His defense needed to make it possible for a reasonable pro-choice woman to find it a legitimate and acceptable prospect, if not an attractive or appealing one, that he might sit on a case reconsidering Roe v. Wade.
Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary. [Continue reading…]