It should be obvious by now why serious but unproven allegations are not litigated in the court of public opinion. Lay observers have begun to treat the accusations against Judge Brett Kavanaugh as though they were part of an extended procedural drama and not a grave matter in which the lives and reputations of both the accused and accuser are at stake. For the self-anointed prosecutors in this mock trial, the game is to trap Kavanaugh in a confession—any confession.
Matt Bai was among the first to engage in this kind of cleverness when he implied that someone who was truly innocent of these charges would not defend himself. For Bai, Kavanaugh’s “categorical denials” are themselves evidence of wrongdoing. “He makes a victim of her all over again by essentially calling her delusional,” Bai wrote of Kavanaugh’s accuser, Dr. Christine Blasey Ford. “He makes no allowance for the possibility that his own memory is blurred by inebriated youth.”
Bai then submitted the draft of a confession to which Kavanaugh should consent. “Like a lot of misguided teenagers, I drank irresponsibly, and I have only vague memories of that time,” his hypothetical admission of guilt read. Kavanaugh should concede his “regret” for harming anyone, even if he doesn’t remember doing so.
But that is not Kavanaugh’s position. The judge insists that his memories are not foggy. And while he has confessed to behaving in an undignified manner as a teenager, Kavanaugh insists that he did not drink to the point that he suffered from alcohol-induced amnesia. Bai would prefer it if Kavanaugh allowed for the possibility that he might not remember sexually assaulting a woman, if only because his denials are insensitive to the feelings of his accuser and anyone else who is invested in his guilt. But that gives away the game; the objective is to secure some form of a confession, thereby legitimizing all the charges against Kavanaugh because he cannot reliably testify in his own defense.
Greg Sargent, the Washington Post’s center-left blogger, also crafted some fantasy contrition statement to which Kavanaugh should affix his name. “When I look back now I realize that my friends and I reveled in our own privilege — we were male, white, rich, and destined to have limitless opportunities laid before us,” Sargent’s daydream read. The judge, Sargent wrote, should have said that he and his friends treated women “like objects” or “conquests,” that they “degraded” them and made them feel “victimized.” Only after Kavanaugh had accepted his potential for violent sociopathy, Sargent insists, would Democrats accept Kavanaugh’s denials at face value. If you believe any of that, you’re a fool.
The Washington Post’s David Von Drehle’s contribution to this transparently manipulative line of inquiry is perhaps the most revealing. If Kavanaugh testifies under oath that he never drank to the point where he suffered from memory lapses, Von Drehle insisted that he would be “battling science” and “inviting skepticism.” But if Kavanaugh were to admit to some alcohol-related gaps in his recollection of events, “he invites the inevitable next question: Exactly what might he have forgotten?”
In sum, if Kavanaugh claims in testimony before Congress that he remembers everything, it’s reasonable to assume that he has perjured himself. If he allows for the possibility that his memories are hazy, it is safe to presume that he engaged in attempted rape and sexual misconduct.
Of course, Kavanaugh has confessed to untoward behavior as a teenager. He told Fox News Channel’s Martha MacCallum that “there were parties” and “people might have had too many beers on occasion.” “I think all of us have probably done things we look back on in high school and regret or cringe a bit,” Kavanaugh added. This is perhaps a generous assessment of the conduct in which Kavanaugh engaged in while inebriated. But the press has treated Kavanaugh’s admission here as though it was an outrageous fabrication.
The portrait Kavanaugh painted of himself as a young man was, in the estimation of so many news outlets and media figures, that of a “choir boy.” This torturing of context provides a window into how the public square would respond to Kavanaugh if he gave them the confession they want. No matter how narrowly it was tailored, it would be deemed an admission of guilt that plausibly relates to any or even all of the charges against him.
If definitive proof that his denials are false can be marshaled, Kavanaugh will not only deserve to lose his chance at a Supreme Court seat but his seat on the District of Columbia Circuit Court, to say nothing of his potential legal exposure. But given all the time that has elapsed, incontrovertible evidence one way or another has proven hard to find. Hence the effort to secure a confession.
What rankles both Kavanaugh’s detractors and the journalistic establishment’s hive mind is that the judge will not give them one inch. He insists that he did not engage in any of the sordid behaviors alleged, full stop. The amateur jurists attempting to lull Kavanaugh into a sense of security are obviously only testing his story and probing his defenses. Fortunately for him, the judge knows a sloppy prosecution when he sees one.
