Sunday, September 30, 2018

Liar, Liar: Lying to Get on the Supreme Court

      William Rehnquist all but certainly lied under oath in his confirmation hearing in 1971 to become a Supreme Court justice. Clarence Thomas quite likely lied under oath in the same setting two decades later. And Brett Kavanaugh lied, repeatedly and blatantly, to bolster his claim to a Supreme Court seat as the most unpopular nominee in modern times after his selection by the most unpopular president ever in U.S. history.
      Each of the would-be justices lied to conceal views or conduct from his past considered socially or politically acceptable at the time but completely unacceptable decades later. And for Rehnquist and Thomas, the lies accurately foretold positions that they would later take in votes and opinions in their later Supreme Court careers.
      * Rehnquist lied to obscure his defense of racial segregation as a Supreme Court law clerk whileBrown v. Board of Education was before the court and racial segregation not yet viewed as a legal and moral wrong.
      * Thomas lied to deny Anita Hill's accusations of sexual harassment from a time before the conduct was recognized as a civil rights violation.
      * Kavanaugh lied to explain away the self-portrait he drew in his Georgetown Prep yearbook as a beer-chugging frat boy before lighthearted machismo was recognized as a toxic social disease.
      Rehnquist's memo for Justice Robert H. Jackson in defense of racial segregation was a focal point of his nomination as associate justice in 1971 and again as chief justice in 1986. He insisted that he wrote the memo at Jackson's request to frame the argument for legal segregation as well as possible. Other Jackson law clerks said, however, that the justice never asked for memos of that sort. And some of Rehnquist's contemporaries recalled that he defended racial segregation in out-of-chambers conversations. As a justice, Rehnquist consistently voted to limit federal courts' power to force school districts to dismantle racially separate schools.
      Thomas denied Hill's many specific memories of his vulgar language and leering behavior when she worked as his assistant when he was chairman of the Equal Employment Opportunity Commission (EEOC). His indignant denial of what he called a "high-tech lynching" devolved into a "he-said, she-said" swearing match when the then-Judiciary Committee chairman Joe Biden declined to call other female witnesses whose accounts would have tended to corroborate Hill's account. As a justice, Thomas has been a disaster for women's rights: he has voted not only to eliminate reproductive rights but also to limit remedies for sex discrimination in the workplace.
      Kavanaugh's various falsehoods and evasions are so numerous that the compilation in The New York Times filled a broadsheet page in the newspaper's print edition on Saturday [Sept. 29]. Some of those misrepresentations were on matters of political significance from his days as a Bush White House aide that came up in 2004 when the Senate considered his nomination to the D.C. Circuit Court of Appeals and that might have sunk his confirmation at the time.
      Under intense questioning from the Vermont Democratic senator Patrick Leahy, Kavanaugh lied about the issues again this month in the initial phase of his Supreme Court confirmation hearing [Sept. 5-6]. He lied to deflect responsibility for accepting and using political intelligence about pending judicial nominations that a Republican Senate staffer had stolen from Democrats' computer and forwarded to Kavanaugh with the subject line "spying." He also lied to minimize his involvement with one of Bush's most controversial judicial appointments, Charles Pickering's elevation from a federal district court to the Fifth U.S. Circuit Court of Appeals.
      The wrenching day-long hearing on Wednesday [Sept. 27] that began with Christine Blasey Ford's account of a sexual assault by Kavanaugh when both were teenagers in the Washington, D.C., suburbs in summer 1982 ended in a draw of sorts with Kavanaugh's indignant denial. Ford gave her account with calm poise and "100 percent" certainty, but without specific details, such as time and place. Kavanaugh denied the alleged assault, also with "100 percent" certainty, as a political smear, supposedly orchestrated by Democrats and perhaps intended as "revenge on behalf of the Clintons."
      Under questioning, Kavanaugh lied implausibly to explain away the image he drew for himself in Georgetown Prep's 1983 yearbook. He laid his record of teenaged vomiting as a member of the "Ralph" club not to beer drinking, but to a weak stomach for spicy foods. He claimed, wrongly, that his reference to "boof[ing]" was about flatulence when the term actually denotes anal sex or use of drugs. And he insisted that his membership in the "Renate Alumnius [sic] club" was a sign of affection toward a co-ed from a nearby girls' school rather than, as classmates told the Times, an insinuation of sexual conquest.
      These were, as one commentator remarked on Twitter, "casual" and "trivial" lies. But the lies brought to mind the jury instruction familiar to longtime courthouse reporters: jurors who disbelieve any part of a witness's testimony are free to disregard the testimony in its entirety. Thus, in the "he-said, she-said" swearing contest between Ford and Kavanaugh, Ford wins on points.
      A jury of Kavanaugh's peers could discount his denial altogether, even apart from the credibility-damaging contrast between Ford's poise and Kavanaugh's loss of control. In a hypothetical criminal trial, the prosecutor would ask jurors in final argument to consider whether Kavanaugh would lie to get a prestigious lifetime job with a six-figure salary and summers off. The obvious answer: of course, he would. And he did.

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