Throughout Judge Brett Kavanaugh’s turbulent confirmation process, which has been marred by multiple allegations of sexual assault, the Trump Administration’s nominee for the Supreme Court has been able to count on one group for support: Very Serious White Lawyer Guys.
But now, even this last bastion of holdouts seems to be abandoning him.
Here was Benjamin Wittes, the editor of Lawfare, a Brookings fellow, and best pal to fellow Serious White Lawyer Guy James Comey, shortly after Kavanaugh’s nomination and first hearing, before the first allegations of sexual assault surfaced.
Then on Tuesday, Wittes wrote a thoroughly morose article in the Atlantic titled, I shit you not: “I Know Brett Kavanaugh, but I Wouldn’t Confirm Him” with the subhed “This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write.” He writes:
If I were a senator, I would not vote to confirm Brett Kavanaugh.
These are words I write with no pleasure, but with deep sadness. Unlike many people who will read them with glee—as validating preexisting political, philosophical, or jurisprudential opposition to Kavanaugh’s nomination—I have no hostility to or particular fear of conservative jurisprudence. 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.
It goes on and on like that before Wittes gets to his actual point: He wouldn’t (theoretically) vote for Kavanaugh because the nominee was too overtly partisan during his testimony before the Senate Judiciary Committee last week. Incredible!
He goes on:
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.
First off, yeah, it was! Kavanaugh’s opening statement was an unhinged, tearful mess that brought up more issues with his nomination than it resolved, especially as he seemed to at least in part blame his rocky confirmation process on “revenge on behalf of the Clintons.”
Wittes isn’t the only one bailing at this point. On Tuesday, two of Kavanaugh’s Yale Law School classmates, Michael J. Proctor and Mark Osler, wrote to the Senate Judiciary Committee to rescind their earlier support for Kavanaugh, as they had both previously signed a letter endorsing his character to the committee. And again, they make it clear what the real problem was.
From their statement (emphasis added throughout):
The reason for our withdrawal is not the truth or falsity of Dr. Ford’s allegations, which are still being investigated, but rather was the nature of Judge Kavanaugh’s testimony. In our view that testimony was partisan, and not judicious, and inconsistent with what we expect of a from a Justice of the Supreme Court, particularly when dealing with a co-equal branch of government.
It’s also clear what the problem was not. It was not the multiple allegations of sexual assault (all of which Kavanaugh has denied). It was not the brutal, unflinching testimony from Dr. Christine Blasey Ford, a survivor of assault, that disqualified Kavanaugh in their minds. In Wittes’ piece, he does mention that he found Ford’s testimony “more believable” than Kavanaugh’s. But that alone, to the Very Serious White Lawyer Guy, is not enough.
Look, we get the point: Every human being should have the right to due process and should be considered innocent until proven guilty. The allegations raised by Ford, and Julie Swetnick, and Deborah Ramirez will very likely never be conclusively proven, and certainly not by a court of law, the temple of Lawyer Guys. These people exist in a world where all of the structures of power—the courts, the local police, the private prep schools they attended—are set up to ensure that their path to a Supreme Court seat or a moderately successful legal wonk publication is as smooth as possible. In the other world, the one inhabited by women and people of color and even white guys who just don’t make enough money, people get shot by police or tossed on death row or denied health insurance in circumstances that are wildly unfair each and every day.
For what it’s worth, the Very Serious White Lawyer Guys know that people are convicted based on one witness all the time. Texas literally executed someone last week whose conviction hinged on one witness and zero physical evidence.
They know this, but that’s not why they’re casting Kavanaugh out. They’re not casting him out because a woman accused him of pinning her down when she was 15 and trying to strip off her clothes while laughing with one of his buddies, but because he decided to violate their precious decorum and the structures that exist to preserve the system that made them who they are. They can find his accusers “believable,” but he still deserves every possible benefit of the doubt, because he’s one of them.
To his credit, Wittes almost, almost got there:
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. ... 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.
It’s wild, to Wittes, this revelation that someone who was professional to him could be capable of aggressive behavior toward others. He’s just a step away from realizing that just because Kavanaugh was always nice to him, it doesn’t mean he was nice to everyone. Very Serious White Lawyer Guys don’t typically sexually assault or abuse other Very Serious White Lawyer Guys, they do it to people they think are beneath them, like their less-famous girlfriends or sometimes, maybe, younger girls from the neighboring prep school.