Brett Kavanaugh again (9/23/18)

All of these have something to do with the Kavanaugh nomination and Dr. Ford’s accusation. I’m saving the best for last — analysis from Ben Wittes at the Atlantic.



McConnell’s incentive to confirm Garland was simple: A reality TV star had hijacked his party’s presidential nominating process and appeared ready to drive the GOP bus over a cliff. If that had happened, Hillary Clinton would have won the White House. She could, if she wished, have taken Garland off the table and replaced him with a younger and far more liberal nominee who might have been around for 30 years or more.

But McConnell didn’t blink … In November, to Washington’s amazement, Clinton lost the election and McConnell won his bet.

McConnell’s gamble on stonewalling Garland may have been the key to Trump’s narrow victory. It made the stakes crystal clear for self-professed Christian conservatives who might otherwise have been loath to vote for a boorish former casino owner ….

David Von Drehle.

I’m glad I clicked that link, not just for that bit of recent history insight, but for his thoughts on what the bets on the table are now.


Every one of us has a moral bank account. Our good deeds are deposits, and our bad deeds are withdrawals. We therefore assess a person the same way we assess our bank account. If our good actions outweigh our bad actions, we are morally in the black; if our bad actions greatly outweigh our good actions, we are morally in the red.

By all accounts — literally all — Brett Kavanaugh’s moral bank account is way in the black. He has led a life of decency, integrity, commitment to family, and commitment to community that few Americans can match. On these grounds alone, the charges against him as a teenager should be ignored.

Dennis Prager.

I quote that to disapprove it. It’s even more repulsive than I suspected when Nancy French took issue:

Without judging the veracity of Ford’s memories or accusations, most reasonable people would agree that a male attacking a female is serious. Not Prager. His article can be summed up in five words: If it happened, so what?

He justifies his position by using the concept of a “moral bank account.” He writes: “Our good deeds are deposits, and our bad deeds are withdrawals. … If our good actions outweigh our bad actions, we are morally in the black; if our bad actions greatly outweigh our good actions, we are morally in the red.”

Among the many problems with this assertion, including that he presents his readers with no legal or scriptural source for it, is that it gives carte blanche to the powerful. Victims who’ve been abused by clergy, the wealthy or the philanthropic are frequently assured that their predators are overall “good people.” But how much money does a person need to donate to a women’s shelter to make up for striking a woman in the face? How much for a rape? Who determines the value of innocence? Who determines the price to be paid?

I will grant Prager a measure of consistency, though. He’s dismissive of sexual assaults even against his mother and his wife.

French adds this, too:

One reason I’m not a Democrat is because they’ve been telling women for years that Kennedy’s and Clinton’s support for women, generally, outweighs their interactions with them individually. One reason I’m no longer a Republican is that, more and more, they tell me character doesn’t matter and that people are disposable when power, policies and Supreme Court seats are on the line.

I used to enjoy Dennis Prager. I don’t know which of us has changed more, but I rarely read him any more, and the column in question here was reptilian.


What’s done is done, but I want to share John Murdock’s account of how we got here:

The Judiciary Committee hearings began with coordinated Democratic theatrics. Then, Senator Diane Feinstein played a card she had been sitting on since July. Ostensibly, this delay was fueled by the senator’s deep concern about maintaining her informant’s anonymity. And what better way to honor a victim’s request than to issue a statement about the allegation and release the media hounds!

Conservatives have been rightly repulsed by Feinstein’s tactics, but they have worked. The accuser was flushed out of hiding and onto the public stage ….

Overall, Murdock makes a pretty decent (inadvertent?) case for Dr. Ford.

We are in a pretty lousy position, with no good and honorable way out, it seems to me. (Confirm him just because you can? Drop him just because he’s an electoral liability?)


I wrote the immediately preceding question before reading this, which concludes the most clarifying commentary I’ve seen, from someone not hostile to Kavanaugh. It can be viewed as a reframing of the question “what is the standard of proof for the accusation?”:

As a general matter, Kavanaugh cannot blame or attack or seek to discredit a woman who purports to have suffered a sexual-assault at his hands. He cannot play Harvey Weinstein games if he wants to emerge from this episode as a credible figure. A Supreme Court justice is not a movie executive. Simply winning isn’t good enough.

Putting it all together, Kavanaugh’s task strikes me as an unenviable one. He needs to prove a negative about events long ago with sufficient persuasiveness that a reasonable person will regard his service as untainted by the allegations against him, and he needs to do so using only arguments that don’t themselves taint him.

If Kavanaugh believes he can do this, he should certainly try. In fairness to both Ford and to him, I will reserve judgment on the merits of the matter until I hear a full account of both sides of it. I urge others to do the same. I can imagine, in theory, defenses that would meet the high bar I think Kavanaugh needs to clear.

But if Kavanaugh cannot present such a defense—even if he truly believes himself innocent, even if he is innocent—the better part of valor is to get out now.

Getting out does not mean admitting that Ford’s account of his behavior is accurate, something Kavanaugh should certainly not do if her account is not accurate. It means only acknowledging that there is no way to defend against it in a fashion that is both persuasive and honorable in the context of seeking elevation to a job that requires a certain moral viability. It means acknowledging that whatever the truth may be, Kavanaugh cannot carry his burden of proof given the constraints upon him.

It means accepting that it is better to continue serving as a D.C. Circuit judge than to play the sort of undignified games that Republicans are playing on his behalf.

Ben Wittes, H/T Ross Douthat. Do read the whole commentary if you find this intriguing. Am I missing anything? (I am not missing the possibility that Dr. Ford’s accusation will be unproven or weakly proven; as long as it’s plausible, it taints.)

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