Benjamin Wittes wrestles with the Kavanaugh issue.

I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so.

He advised Kavanaugh (also at The Atlantic) to withdraw unless he could dispute Ford’s account without leaving a scorched earth behind.

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.

Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a “good judge [as] an umpire—a neutral and impartial arbiter who favors no litigant or policy.” That Brett Kavanaugh reminded us that “the Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.”

That Kavanaugh did not show up last Thursday.

After rightly criticizing “the behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,” this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in:

When I did at least okay enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.

Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.

When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes. And then—and then as no doubt was expected, if not planned—came a long series of false last-minute smears designed to scare me and drive me out of the process before any hearing occurred.

He went on: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

I still wonder why he did that, and all the more so after reading the bit from the first hearing. Did he simply lose his temper? Lose it so thoroughly that it remained lost while he wrote that statement? And while he delivered it? (There again – if so, that itself hints at a temperament not ideal for the Supreme Court.)

The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for theWashington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations and post–September 11 legal matters. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.

I think that’s the part that interests me the most. I’ve been trying to imagine a Kavanaugh who was admired by people like Wittes and I couldn’t do it – because the one who shouted and blubbed at that hearing is the only one I’ve seen.

Sheryl Gay Stolberg in the Times yesterday:

Democratic efforts to highlight sexual assault charges that are more than 30 years old have been dismissed by supporters of Judge Brett M. Kavanaugh as the dredgings of ancient history. But the judge’s response to those accusations has raised new issues that go to the core of who President Trump’s Supreme Court nominee is right now: his truthfulness, his partisanship and his temperament.

And, in my view, his ability to reason. Sure, we all get that he’s livid because the allegations are about him and not someone else. It’s human to take things personally; it’s human to go ballistic when it’s you and look on with calm detachment when it’s not you. It’s human, but it’s not all that Supreme Court-suitable. That job demands a lot of people; that goes with the “Supreme” part. The Court’s decisions matter, so you want the people making them to be more than ordinarily endowed with qualities that suit the job.

I suspect that if Kavanaugh learned of a guy who was said by many friends to have been a belligerent drunk as a young man that he would not find it a particularly outrageous claim. It seems to me that someone with an appropriately judicial temperament would be able to take a wide view and realize that most people just aren’t going to assume that he Brett Kavanaugh can’t possibly have been a belligerent drunk as a young man, because why would we? And then he would (you’d think) realize that pitching a belligerent fit would not be the best way to convince us otherwise; more like the opposite.

In short, his ego seems to mess with his ability to be rational. Not good in a justice.

For Democrats determined to derail Judge Kavanaugh, his performance last week before the Senate Judiciary Committee — his dissembling about his teenage years; his playing down drinking in high school and college; his raw, angry emotions; and his broadsides against Democratic questioners — is proving to be a new avenue of attack, if the accusations of sexual assault are not enough to swing the votes of three key Republicans and two undecided Democrats.

That’s the wrong way of putting it. That sounds as if it’s just a pretext, but his performance was a genuine horror. People aren’t pretending to be horrified because it’s a way to derail him; we really are horrified. The narcissism and entitlement make me feel quite sick.

Judge Kavanaugh came up in Washington through partisan politics; he worked on the investigation that led to Mr. Clinton’s impeachment, and later he worked for President George W. Bush. At his first Supreme Court confirmation hearing, last month, he portrayed himself as a neutral arbiter of the law who is above politics, telling the Judiciary Committee that the Supreme Court “must never be viewed as a partisan institution.”

But last week he took the gloves off, ripping into Democrats for what he called “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons.” Senator Mazie K. Hirono, Democrat of Hawaii and a member of the Judiciary Committee, seized on those comments on Monday as she laced into Judge Kavanaugh in a speech on the Senate floor.

“We all saw something about Judge Kavanaugh’s temperament and character that day that should disqualify him from serving on the Supreme Court of the United States,” Ms. Hirono said. “He was angry. He was belligerent. He was partisan. He went on the attack against senators questioning him. These are not qualities we look for in a Supreme Court justice, or a judge for that matter.”

But Senator Charles E. Grassley, Republican of Iowa and the Judiciary Committee chairman, said Judge Kavanaugh could be excused for showing passion. Mr. Grassley said he was reminded of the 1991 testimony of Clarence Thomas, who told the committee that the hearing into sexual harassment allegations from Anita F. Hill amounted to a “high-tech lynching.”

Yes, and that was crap too.

Laurence Tribe makes an interesting point.

https://twitter.com/tribelaw/status/1047152614587154432

I hadn’t really thought about it in that light. He created a visible conflict of interest for himself with all that raging at “the left” and Democrats.

Another indication that Kavanaugh may have tried to stifle claims about his behavior:

In the days leading up to a public allegation that Supreme Court nominee Brett Kavanaugh exposed himself to a college classmate, the judge and his team were communicating behind the scenes with friends to refute the claim, according to text messages obtained by NBC News.

Kerry Berchem, who was at Yale with both Kavanaugh and his accuser, Deborah Ramirez, has tried to get those messages to the FBI for its newly reopened investigation into the matter but says she has yet to be contacted by the bureau.

The texts between Berchem and Karen Yarasavage, both friends of Kavanaugh, suggest that the nominee was personally talking with former classmates about Ramirez’s story in advance of the New Yorker article that made her allegation public. In one message, Yarasavage said Kavanaugh asked her to go on the record in his defense. Two other messages show communication between Kavanaugh’s team and former classmates in advance of the story.

And then there’s the fact that Kavanaugh lied about this chatting in a committee interview.

Berchem’s texts with Yarasavage shed light on Kavanaugh’s personal contact with friends, including that he obtained a copy of a photograph of a small group of friends from Yale at a 1997 wedding in order to show himself smiling alongside Ramirez 10 years after they graduated. Both were in the wedding party: Kavanaugh was a groomsman and Ramirez a bridesmaid at the wedding.

On Sept, 22nd, Yarasavage texted Berchem that she had shared the photo with “Brett’s team.”

But when Kavanaugh was asked about the wedding during a committee interview on Sept. 25th, he said he was “probably” at a wedding with Ramirez. Asked if he interacted with her at the wedding, Kavanaugh replied, “I am sure I saw her because it wasn’t a huge wedding,” but added that he “doesn’t have a specific recollection.” Lying to Congress is a felony whether testimony is taken under oath or not.

And that is a lie, you see, because he obtained the copy of the photo and sent it to friends in order to show himself smiling alongside Ramirez 10 years after they graduated. He did that, so he can’t have been uncertain about being at that wedding and he does have a specific recollection.

In a series of texts before the publication of the New Yorker story, Yarasavage wrote that she had been in contact with “Brett’s guy,” and also with “Brett,” who wanted her to go on the record to refute Ramirez. According to Berchem, Yarasavage also told her friend that she turned over a copy of the wedding party photo to Kavanaugh, writing in a text: “I had to send it to Brett’s team too.”

Bob Bauer, former White House counsel for President Barack Obama, said: “It would be surprising, and it would certainly be highly imprudent, if at any point Judge Kavanaugh directly contacted an individual believed to have information about allegations like this. A nominee would normally have been counseled to leave to his legal and nominations team the job of following up on any questions arising from press reports or otherwise, and doing so appropriately.”

Can you say “witness tampering”?

Further, the texts show Kavanaugh may need to be questioned about how far back he anticipated that Ramirez would air allegations against him. Berchem says in her memo that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to “conceal or discredit” Ramirez.

Kavanaugh told the Senate Judiciary Committee under oath that the first time he heard of Ramirez’s allegation was in the Sept. 23 article in The New Yorker.

Kavanaugh was asked by Sen. Orrin Hatch, R-Utah, when he first heard of Ramirez’s allegations. Kavanaugh answered: “In the New Yorker story.”

Lying under oath? Lying to Congress?

One of Kavanaugh’s lies that I find peculiarly exasperating, especially from a lawyer:

BRETT KAVANAUGH: Dr. Ford’s allegation is not merely uncorroborated. It is refuted by the very people she says were there, including by a longtime friend of hers – refuted.

But that’s bullshit and any lawyer would know that.

Most simply and obviously it’s bullshit because the people he’s talking about didn’t even say that, they said only what is reasonable: that they don’t remember it. How would they remember it? They weren’t there, remember? They were in the house but they were not in the room. They were downstairs in the living room, while the assault Ford describes happened upstairs in a bedroom with the door closed. Ford tried to scream but Kavanaugh stifled her mouth so hard she had trouble breathing and was afraid she would die. The music in the bedroom was turned up. When she escaped Ford locked herself in the bathroom until Kavanaugh and Judge careened, laughing, back downstairs, and then she left the house. She didn’t pause to tell everyone present what had just happened; she didn’t tell anyone. So the people there were not in a position to remember the assault that they never knew about in the first place.

Almost as obvious is the fact that saying you don’t remember a thing is not the same as refuting that thing. Not at all, and it’s a crucial distinction, and no lawyer could possibly not know that. No rational adult human should be unaware of that.

Less obvious is that it would be hard for anyone involved to refute Ford’s allegation in any case. Dispute, yes, reject, yes, but refute – that’s a higher burden. It’s hard for her to establish it, because it was so long ago and because she’s unsure about date and place, and it’s hard to refute for the same and related reasons. It would need an exact time and place and irrefutable evidence that Kavanaugh was somewhere else at that time.

And he’s a lawyer. He knows it’s bullshit to say her friends refuted her allegations because they said they don’t remember – but he also knows people are sloppy about these distinctions and he can probably get away with it. The truth is that uncorroborated is what it is, and refuted is not.

And he’ll probably be on the Supreme Court soon.

The Times has breaking news:

The White House has authorized the F.B.I. to expand its abbreviated investigation into sexual misconduct allegations against Judge Brett M. Kavanaugh by interviewing anyone it deems necessary as long the review is finished by the end of the week, two people briefed on the matter said on Monday.

The new directive came in the past 24 hours after a backlash from Democrats, who criticized the White House for limiting the scope of the bureau’s investigation into President Trump’s nominee for the Supreme Court. The F.B.I. has already completed interviews with the four witnesses its agents were originally asked to talk to, the people said.

I don’t know if this is more of the same bullshit we’ve been getting since Friday.

The revised White House instruction amounted to a risky bet that the F.B.I. will not find anything new in the next four days that could change the public view of the allegations. Republicans have resisted an open-ended investigation that could head in unpredictable directions. But the limited time frame could minimize the danger even as it heightens the likelihood that F.B.I. interviews do not resolve the conflicting accounts.

Mr. Trump said he instructed his White House counsel, Donald F. McGahn II, over the weekend to tell the F.B.I. to carry out an open investigation, although he included the caveat that it should accommodate the desires of Senate Republicans. Mr. McGahn followed through with a call to the F.B.I., according to the people briefed on the matter.

I’m sure he’s almost completed dialing the number now.

Mr. Trump ordered the one-week F.B.I. investigation on Friday after Senator Jeff Flake, Republican of Arizona and a key swing vote on the nomination, insisted that the allegations be examined before he committed to voting to confirm Judge Kavanaugh on the floor. But the White House and Senate Republicans gave the F.B.I. a list of just four people to question: Mark Judge and P.J. Smyth, high school friends of Judge Kavanaugh’s; Leland Keyser, a high school friend of his main accuser, Christine Blasey Ford; and Deborah Ramirez, another of the judge’s accusers.

Mr. Flake expressed concern on Monday that the inquiry not be limited and said he had pressed to make sure that happens. “It does no good to have an investigation that gives us more cover, for example,” he said in a public appearance in Boston. “We actually have [to] find out what we can find out.”

In interviews, several former senior F.B.I. officials said that they could think of no previous instance when the White House restricted the bureau’s ability to interview potential witnesses during a background check. Chuck Rosenberg, who served as chief of staff under James B. Comey, the former F.B.I. director, said background investigations were frequently reopened, but that the bureau decides how to pursue new allegations.

“The White House normally tells the F.B.I. what issue to examine, but would not tell the F.B.I. how to examine it, or with whom they should speak,” he said. “It’s highly unusual — in fact, as far I know, uniquely so — for the F.B.I. to be directed to speak only to a limited number of designated people.”

Unusual and a grotesque abuse of power. Next question?

Ok fine you can have your god damn investigation if you’re going to get in such a fit about it. You just can’t interview anyone. Jane Mayer and Ronan Farrow in the New Yorker:

As the F.B.I. began its investigation this weekend into allegations of sexual misconduct by Brett Kavanaugh, President Trump’s Supreme Court nominee, several people who hope to contribute information about him to the F.B.I. said that they were unable to make contact with agents.

That’s interesting, because we the public have been being told don’t wait to be called, if you have any relevant information get in touch with the FBI yourselves.

With a one-week deadline looming over the investigation, some who say they have information relevant to the F.B.I.’s probe are suspicious that the investigation will amount to what one of Kavanaugh’s former Yale classmates called a “whitewash.” Roberta Kaplan, an attorney representing one potential witness, Elizabeth Rasor, a former girlfriend of Kavanaugh’s high-school friend Mark Judge, said her client “has repeatedly made clear to the Senate Judiciary Committee and to the F.B.I. that she would like the opportunity to speak to them.” But, Kaplan said, “We’ve received no substantive response.”

That is, Trump and his administration are calculatedly and deliberately ignoring potential information about a nominee to the Supreme Court who could be there for forty years or more. They don’t want to know he assaulted X or threw up on Y while blind drunk; they want only to put their guy on the court so that he can take rights away from women and workers and brown people for generations.

Christine Blasey Ford has accused Judge of being an accessory to Kavanaugh’s alleged sexual assault on her, in 1982, when they were all in high school. Kavanaugh has vehemently denied any role in the assault, and Judge, through his attorney, Barbara Van Gelder, also has denied any recollection of it. Kaplan said that early this past week she began reaching out to the F.B.I. and to the Senate Judiciary Committee on Rasor’s behalf. “She feels a sense of civic duty to tell what she knows,” Kaplan said. “But the only response we’ve gotten are e-mails saying that our e-mails have been ‘received.’ ” At one point, she said, an F.B.I. official suggested she try calling an 800-number telephone tip line.

Ford’s attorney has had the same experience, despite multiple attempts to get through to the FBI.

Rasor dated Judge on and off for two to three years while they were students at Catholic University, and she is now a public-school teacher in New York. After hearing Judge’s denials, Rasor came forward, offering to give a sworn statement to the F.B.I. challenging Judge’s credibility. According to Kaplan, the F.B.I. has so far shown no interest in hearing what Rasor has to say, and efforts to contact the Bureau have gone nowhere.

All of our operators are busy; your call is important to us; please stay on the line and an intern will speak to you shortly.

Leah Litman, an assistant professor of law at the University of California, Irvine, said the severe restrictions on the scope of the investigation made it “a joke.” She asked, “What kind of an investigation into an assault that happened under the influence of alcohol doesn’t include investigating the accused’s use of alcohol?” She said, “Usually, the F.B.I. investigators aren’t told who to call and who not to.” She said that Rasor should be interviewed, given her past relationship with Judge. “If Mark Judge is on the ‘approved’ list of witnesses, and they are interviewing him, there is no reason not to interview Rasor, who has testimony that is very relevant to his credibility, and the testimony that he would offer,” she said.

Yes but that might be bad for Kavanaugh so nope nope nope.

Democratic officials with experience overseeing F.B.I. background investigations disputed that there was anything procedurally routine thus far in the F.B.I.’s renewed investigation into Kavanaugh. Robert Bauer, who served as the White House counsel to President Obama, said that he had overseen numerous F.B.I. background investigations and never seen one so circumscribed. “The F.B.I. should have the latitude to determine what is necessary in a credible, professional inquiry,” he said. “The issue on the table is, Did he or didn’t he engage in the conduct that Dr. Ford alleged?” To reach the answer, he said, “The F.B.I. needs to utilize its expertise to investigate. But instead the White House has dictated a restricted investigative plan. So it’s contaminated at the core.”

But if you know something, do call the FBI. Just be prepared to wait.

A widely shared post by Emily Denny from September 27:

I believe Brett Kavanaugh. I believe that he truly doesn’t remember sexually assaulting someone. I believe that he’s forgotten all the hurt he has caused women. I believe that he didn’t understand the gravity of his actions as a 17-year-old. I believe that the night he forever altered Dr. Ford’s life is just another blip in the foggy haze of his teenage years.

I believe his upbringing and his privilege poisoned his ability to understand right and wrong. I believe he didn’t write “sexually assault someone” in his calendar. I believe he doesn’t think he did it.

I believe he’s frightened and upset. I believe his tears and whimpers. I believe that he truly thinks that this has ruined his life. I believe that he thinks that potentially not getting a job and having some people say mean things about him on the internet has “ruined his life”. I believe he thinks this is the worst case scenario.

And if this isn’t a blistering account of the status of wealth and privilege in this country, I don’t know what is.

I believe you, Dr. Ford.

I differ with her on one item. I’m not sure I do believe that he doesn’t think he did it. If he does, and if the many accounts of what a belligerent drunk he was are true, he has no intellectual right to think that. He’s a judge ffs, not an overworked high school teacher who works 20 hours a week at Starbucks on top of teaching and has no time to learn about alcohol and memory – he’s a judge and an abusive alcoholic, so he damn well should be informed about alcohol and memory and how both connect to abuse. He should be fully aware that getting blackout drunk can wipe your memory, and that that means it’s very likely that he’s forgotten big patches of time. He should be well aware that he fits the description. He should be well aware that what Ford describes sounds hideously plausible. He should be well aware that when he gets drunk he can be dangerous to others. He should be well aware of a lot of things that he furiously denies.

That all by itself is reason enough not to put him on the Supreme Court. He seems to let his self-interest and ego override obvious likelihoods and patterns, which isn’t good in a judge. He seems to be ignorant of his own cognitive weaknesses, which also isn’t good in a judge.

Chad Ludington gave a statement about Kavanaugh to the press:

I have been contacted by numerous reporters about Brett Kavanaugh and have not wanted to say anything because I had nothing to contribute about what kind of justice he would be. I knew Brett at Yale because I was a classmate and a varsity basketball player and Brett enjoyed socializing with athletes. Indeed, athletes formed the core of Brett’s social circle.

In recent days I have become deeply troubled by what has been a blatant mischaracterization by Brett himself of his drinking at Yale. When I watched Brett and his wife being interviewed on Fox News on Monday, and when I watched Brett deliver his testimony under oath to the Senate Judiciary Committee on Thursday, I cringed. For the fact is, at Yale, and I can speak to no other times, Brett was a frequent drinker, and a heavy drinker. I know, because, especially in our first two years of college, I often drank with him. On many occasions I heard Brett slur his words and saw him staggering from alcohol consumption, not all of which was beer. When Brett got drunk, he was often belligerent and aggressive. On one of the last occasions I purposely socialized with Brett, I witnessed him respond to a semi-hostile remark, not by defusing the situation, but by throwing his beer in the man’s face and starting a fight that ended with one of our mutual friends in jail.

It is perhaps not pushing things too far to surmise that Kavanaugh’s belligerence is why that was one of the last times Ludington hung out with him on purpose.

I do not believe that the heavy drinking or even loutish behavior of an 18- or even 21-year-old should condemn a person for the rest of his life. I would be a hypocrite to think so. However, I have direct and repeated knowledge about his drinking and his disposition while drunk. And I do believe that Brett’s actions as a 53-year-old federal judge matter. If he lied about his past actions on national television, and more especially while speaking under oath in front of the United States Senate, I believe those lies should have consequences. It is truth that is at stake, and I believe that the ability to speak the truth, even when it does not reflect well upon oneself, is a paramount quality we seek in our nation’s most powerful judges.

Another Yale buddy turns up to say no actually Kavanaugh drank like a fish and could barely stay upright when he did.

A Yale classmate of Judge Brett M. Kavanaugh’s accused him on Sunday of a “blatant mischaracterization” of his drinking while in college, saying that he often saw Judge Kavanaugh “staggering from alcohol consumption.”

The classmate, Chad Ludington, who said he frequently socialized with Judge Kavanaugh as a student, said in a statement that the judge had been untruthful in testimony to the Senate Judiciary Committee when he had denied any possibility that he had ever blacked out from drinking.

Mr. Ludington said that Judge Kavanaugh had played down “the degree and frequency” of his drinking, and that the judge had often become “belligerent and aggressive” while intoxicated. Other former classmates have made similar claims.

And one of the things that makes the claims credible is the fact that Kavanaugh got so very belligerent and aggressive right in front of us. The guy is obviously a belligerent asshole even when sober.

Mr. Ludington, a professor at North Carolina State University who appears to have made small political contributions to Democratic candidates, said to The New York Times on Sunday that he had been told by the F.B.I.’s Washington, D.C., field office that he should go to the bureau’s Raleigh, N.C., office on Monday morning. He said he intended to do that, so he could “tell the full details of my story.”

It is illegal to lie to Congress. But it was unclear whether the F.B.I. would add Mr. Ludington’s accusations to the newly reopened background investigation into allegations of sexual misconduct against Judge Kavanaugh, which has been limited in scope and time by the White House and Senate Republicans.

Because they are determined to get an angry hostile pugnacious drunk onto the Supreme Court.What could possibly go wrong?

Democrats in Washington reacted with anger on Sunday as the narrow scope of the new F.B.I. background inquiry became clear, warning that it threatened to become a sham.

Senator Mazie K. Hirono, a Hawaii Democrat on the Judiciary Committee, said on ABC’s “This Week” that any investigation that limits whom the F.B.I. can interview and which leads agents can follow would be a “farce.”

Senator Amy Klobuchar, a Minnesota Democrat who is also on the committee, described what she said was micromanaging from the White House: “You can’t interview this person, you can’t look at this time period, you can only look at these people from one side of the street from when they were growing up.”

“I mean, come on,” she said on CNN’s “State of the Union.”

Yes but did you ever black out from drinking?

Trump says stay tuned.

Wow! Just starting to hear the Democrats, who are only thinking Obstruct and Delay, are starting to put out the word that the “time” and “scope” of FBI looking into Judge Kavanaugh and witnesses is not enough. Hello! For them, it will never be enough – stay tuned and watch!

— Donald J. Trump (@realDonaldTrump) September 30, 2018