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A Few Good Men – but this one?

Brett Kavanaugh, the current presidential nominee for the US Supreme Court, faces a series of allegations of sexual misconduct dating back to his youth. He denies them all. He denies them emphatically. But he denies them in a manner which raises questions about his suitability for senior judicial office, let alone the highest judicial office in the land.

Giving evidence to the Senate Judiciary Committee, he was asked by Senator Amy Klobuchar, “Was there ever a time when you drank so much that you couldn’t remember what happened – or part of what happened – the night before?” He answered, “No, I remember what happened. And I think you’ve probably had a beer, Senator.”

The first word of that answer would have been enough, “No”. But he didn’t stop. And, as the exchange developed, the real meaning behind his answers became increasingly uncertain.

The answer isn’t in quite the same league as Jack Nicholson’s “You can’t handle the truth”. But it was an extraordinary answer nonetheless.

The judge caused a problem for himself with the extraordinary comment, “I think you’ve probably had a beer, Senator.” That’s the sort of question one throws back at an interrogator after admitting an indiscretion (“Yeah, I’ve drunk too much, haven’t you? Hasn’t everyone?”). Why did the judge adopt that tactic after he had just denied that he had ever drunk so much that it caused a memory lapse?

The natural consequence was that the senator repeated the question. And, this time, she got a different answer:

SENATOR: So, you’re saying there’s never been a case when you drank so much that you didn’t remember what happened the night before, or part of what happened?

JUDGE: You’re asking about blackout. I don’t know. Have you?

Previously, his answer  was “No”. Now it had become “I don’t know”. The pre-qualifier, “You’re asking about blackout”, suggests that he thought his earlier answer was addressing something different, even though the question had been the same.

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And, once again, he had thrown a challenge back at the senator, “Have you?” And, once again, she persisted:

SENATOR: Could you answer the question, Judge … That’s not happened. Is that your answer?

JUDGE: Yeah, I’m curious if you have.

For a third time, he questioned his interrogator. And he did so in a way which makes it unclear whether his “yeah” constituted an answer to the previous question (“That’s not happened. Is that your answer.”) or was it just a verbal tick, as he posed his own question, “I’m curious if you have”.

SENATOR: I have no drinking problem, Judge.

JUDGE: Nor do I.

Finally, we got a short, decisive response from the judge: he said he doesn’t have a drinking problem. But note the present tense. He doesn’t currently have a drinking problem. As to whether, in his student days, he ever drank so much that he couldn’t remember what happened, arguably the clearest answer, out of the three he gave, was “I don’t know”.

The question at the heart of this exchange was crucial. The primary allegation against the judge was of sexual misconduct when drunk. If, at the time in question, he was prone to forgetting his behaviour as a result of drink, his denial is undermined.

The lack of recollection is also relevant to other attendees at the (alleged) party. During his evidence, Kavanaugh said the complainant’s “allegations are not merely uncorroborated, [they’re] refuted by the very people she says were there.” Actually, the statements of the alleged witnesses do not refute anything. The three people in question swore that they have no recollection of the events complained of, not that the events did not happen.

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Maybe they didn’t happen. That would, of course, explain the absence of any recollection of them. Or maybe they did happen and they have been forgotten. To a lawyer, there is a big difference between “I don’t recall that day” and “I recall that day and it didn’t unfold in the manner suggested.” Perhaps it’s an easy distinction for the man or woman in the street to miss. But Judge Kavanaugh is – and the clue’s in his title – a judge.

At another point in the hearing, an exchange took place between Kavanaugh and Senator Dick Durbin, which was strangely reminiscent of Tom Cruise and Jack Nicholson in A Few Good Men:

SENATOR: I wanna know what you want to do.

JUDGE: I’m telling the truth.

SENATOR: I wanna know what you want to do.

JUDGE: I’m innocent. I’m innocent of this charge.

SENATOR: Then you’re prepared for an FBI investigation.

JUDGE: They don’t reach conclusions. You reach conclusions.

That final answer isn’t quite in the same league as Jack Nicholson’s “You can’t handle the truth”. But it’s an extraordinary answer nonetheless. As any lawyer in the US (or here the UK) would know, it is quite normal for the investigators of evidence to be independent of, and separate from, the tribunal which reaches a conclusion on that evidence. In criminal cases, the police investigate and the jury reaches a decision.

The FBI will now investigate. They have been given a week in which to do so. But whether or not they uncover additional information to assist the senators regarding to the sexual miscoduct allegation from 36 years ago, I think Judge Kavanaugh has already offered sufficient evidence of his own regarding his suitability for high judicial office.