The Truth About the Ford-Kavanaugh Confirmation Hearing

In response to multiple emails from current and former students, and others, here are some initial and admittedly impressionistic thoughts regarding the Kavanaugh confirmation hearings.  As senators Feinstein and Harris were quick to remind Ford, and their audience, yesterday was not a criminal trial.  If it were, the proceedings would have ended quickly. There is no evidence that a crime was even committed – at least not enough to bring a legal indictment, never mind determine who is the guilty party.  But the Senate hearing was not intended to determine the “truth” of Ford’s allegations, or Kavanaugh’s denials.  Nor, contrary to Feinstein’s claim, was it a “job interview” to determine whether Kavanaugh was qualified to serve on the Supreme Court. Instead, the hearing was designed to provide political cover for senators of both parties to vote the way they wanted to vote before the hearings began.  All they asked was for their witness to appear credible enough to allow them to cast a vote that could be defended back home, with their constituents.   And, in my view, and consistent with the responses I am getting from “normal” people who watched bits and pieces (or even more) of yesterday’s proceedings (I use “normal” in the statistical sense), both Ford and Kavanaugh cleared the bar.  Put another way, if you went into yesterday’s hearings believing Kavanaugh was guilty, I am quite sure you came out of it convinced you were right.  I suspect that among his defenders there was a similar reaction – “I thought he was innocent, and yesterday proved me correct.”  And for those of you who were genuinely undecided?  I doubt yesterday clarified anything, and that you are still undecided.  Yes, I am fully aware of the inconsistencies in the testimony of Kavanaugh and Ford that advocates on both sides are eagerly rehashing on social media.  It’s funny how those inconsistencies always seem to reinforce one’s prior dispositions!  Indeed, as I remarked on twitter yesterday, I’ve yet to hear from one person who said that they had changed their views after listening to the testimony by both parties.

When I make this argument, students often respond with, “Ok, but what do you think?  Is he guilty or not?”  My response is that I have a pretty strong belief regarding whether he is guilty.  But I also recognize that my belief is not based on any evidence, but instead reflects a gut instinct based on poorly-informed theories of human behavior that may or may not apply here. And guess what – reams of science reminds me that one’s “gut instinct” and “intuition” is often quite wrong; frequently it serves as a manifestation of underlying predispositions that lead one to engage in confirmation bias.  Put another way – I recognize that no matter how strong my belief, it is not rooted in any objective assessment of the relevant facts (of which there are almost none), and therefore it is of no value in this debate.

So where do we go from here?  If my assessment is right – if yesterday’s testimony provided adequate cover for senators to vote their partisan preferences – I suspect Kavanaugh will be confirmed on a near-straight party vote.  As I write this, media sources are reporting that Jeff Flake will vote yes.  Given their political leanings, I’m guessing Collins and Murkowski will do so as well, and would not be surprised if Manchin and Donnelly cross party lines, given the tough political fight they are facing.  As I tweeted yesterday, however, the actual hearing was only the start of the political fight.  Much depends on how the media reports that hearing – what sound bites will they use?  Visuals?  And there is the added layer of extremist voices in social media that may play a role in framing the debate.

Several pundits have speculated that if he is confirmed, Kavanaugh’s palpable anger at this confirmation process will spill over into his decisions in a way that will cause him to rule against the Democratic party’s preferences.  I find this highly implausible, mostly because – as I indicate below – Kavanaugh was always likely to rule in ways that Democrats would find unacceptable regardless of how smooth the confirmation process went.  If you want a clue regarding how Kavanaugh will judge, you need only to look at his prior judicial record.  (Note: use these scores with caution – they depend heavily on the issues that came to a vote during Kavanaugh’s time on the court, among other caveats.)

A final thought. Many activists, particularly those backing Ford, think this confirmation fight will somehow damage the long-term legitimacy of the Court, particularly if Kavanaugh is confirmed.  I disagree. That view is based on a willfully misleading impression of the court as a decision-making body composed of priests in robes who divine the “truth” through careful consideration of legal principles.   But decades of social science research paints a different picture.  Justices are partisan in robes, who interpret ambiguous language in ways that are consistent with their political preferences.  Yes, we all are willing to adopt the pretense that the Court is above politics, and I think that fig leaf serves a useful purpose by providing a sheen of legitimacy to court rulings, and compensating for the fact that once confirmed they are not accountable to the people.  But partisans on both sides understand the true nature of the Court, and the Kavanaugh confirmation battle will only reinforce what they already know, which is that elections matter, and whichever party has the votes in the Senate will use them to tilt the Court toward their preferred political direction.  It has always been thus, and it will always be so.

And for those lamenting Kavanaugh’s confirmation – if he is confirmed?  Note that our best guess, based on his record to date (see above) is that Kavanaugh will vote in ways that make him much closer to Thomas, and the right wing of the Court, than to Kennedy’s relatively more centrist views.  However, this will likely make Chief Justice Roberts the new swing voter on many issues, replacing Kennedy in that role.  And Roberts is, at heart, an institutionalist very concerned with protecting the Court’s perceived legitimacy and public standing.  This makes it highly unlikely, in my view, that he will support decisions, such as repealing Roe v. Wade, that run counter to prevailing public opinion.   That may provide small comfort to those who believe Ford’s testimony, and who are convinced there is no place on the Supreme Court for a man like Kavanaugh. To you, I say, use that anger constructively – by voting.  Control of the Senate – and likely of the federal courts – is at stake.


  1. Kavanaugh is unfit for even his present position. He represents the worst of the male of our species. Those who still support him are whistling past the graveyard.

  2. Thanks Matt, this is an excellent analysis and the tone is ‘spot on’.

    Do the evident weaknesses of this process suggest any procedural or voting changes that might be implemented to reduce the partisanship and the ‘gaming’ of the process of providing advice and consent by the Senate? What elements contributed to making this nomination so contentious – particularly as I agree with your expectation that Roe will not be reviewed/overturned with Roberts as the swing vote?

    It appears that due process will prevail in this case (to the chagrin of some and the comfort of others). Do you sense any significant decline in the respect for, and adherence to, this fundamental principle? Your call to vote is a welcome reminder of the basis of our politics – long may it be so!

  3. Thanks for sharing this Matt. I knew sooner or later we would hear from you. But already it looks like things have changed somewhat with a week delay and F.B.I input on the table – if Trump will get his act together. I watched almost all of yesterday’s hearing and heard some of the committee’s discussion this a.m. Who to believe? I still lean towards Ford but feel we need the F.B.I. to get the facts on the table before a decision can be made. I found it fasinating to see the change in atmsphere in the room yesterday moving from Ford to Kavanaugh. I didn’t like Kavanaugh’s personality or the approach he took and he gave me the feeling as a “big white man” he didn’t want the likes of an “ordinary woman” taking him down. A power play of a bunch of “big white men, with lots of power” wanting to keep it at all costs. I think that is one of the reasons they want Kavanaugh on board. Power!

  4. This feels like low-grade punditry.

    The author doesn’t provide a basis for why Dr. Ford’s allegation wouldn’t be enough to allow a jury to convict if this were a criminal case. It would depend on the actual statute at issue, of course, but one person’s live testimony, if found credible by a jury, could be enough to satisfy the Federal Rules of Evidence or analogous state rules. I don’t think the author understands what he’s talking about when it comes to legal realities.

    It’s a shame that a political “realist” such as the author lacks the self awareness to avoid pontificating on matters he obviously doesn’t know the intricacies of, ie what evidence is sufficient to sustain a guilty verdict in the American legal system.

  5. John,

    One process-related takeaway is that the decision by the Senate to do away with the filibuster has made it easier for the majority party to nominate and confirm more partisan/ideological judges. When the filibuster was on the table, it meant that any nominee needed a supermajority for confirmation but this is no longer the case. That has made the confirmation process more polarized. Of course, no one threatened to filibuster a Supreme Court nominee – at least until recently – but I think the removal of the filibuster has contributed to the polarization of debate in the Senate over court nominees. I do think the decision by Flake today to threaten to withhold a yes floor vote to leverage additional investigation into Kavanaugh should help reduce tensions somewhat, at least in the short term. But this is not a long-term fix to the Senate. The causes of partisan polarization in that body are many. I probably should do a separate post examining them. A major factor is that politics is increasingly attracting candidates who hold more ideologically extreme views. Campaign finance reform has also elevated the influence of single-issue donors. And of course many issues that were once considered private affairs are now subject to public debate and governmental action. I don’t see any of these being reversed anytime soon.

  6. Hi Frances,

    Trump made the right move in authorizing the extension to allow the FBI investigation, although I suspect it is not going to reveal information that is likely to change many if any votes. But it does provide political cover for moderates like Collins and Murkowski to vote to confirm Kavanaugh (assuming no incriminating evidence is uncovered during the next few days.) They can tell their constituents that they went the extra mile. I agree that Kavanaugh’s testimony at times seem a bit over the top, but in his defense his reputation is on the line, and he is undoubtedly still processing and dealing with the anger resulting from these charges coming forth scarcely more than a week ago. As for the rationale of the Republicans on the Judiciary committee – I agree it is about power, but I think it is a desire for partisan power, more than a reflection of “big white men” trying to keep power against the effort by a woman to take it away. (Of course, I’m a white man, albeit one with no power….) Simply put, the Republicans are committed to maintaining their ideological majority on the court, and Kavanaugh is their best hope for doing so in time for the start of the next Court session. Assuming the FBI report comes back clean, I think the Republican women in the Senate will join the men in voting to confirm him.

  7. This woman sought counseling for her experience years ago, before any of this came to pass. She told multiple friends about it when she sought the counseling. That, in addition to her testimony, puts the evidence strongly in her favor.

  8. I agree with your analysis of the political realities, but not your view that the credibility question was a wash. Kavanaugh lied repeatedly about his youthful drinking and behavior. The “Renate alumni”, his claimed moderation in drinking, the meaning of “boofing” and “Devil’s Triangle”, his “weak stomach” are all self-evident untruths meant to portray him as above reproach. Like most people, I believe in human redemption, especially concerning adolescent behavior. But redemption requires confession and reflection. Kavanaugh’s sense of privilege seemed to leave him without the ability for either. This is the argument Dems must make against him in the next week.

  9. Can Ms. Ford and Mr. Kavanaugh both be correct? Can Ms. Ford’s memories have substantially more power (fear of older boys, physical restraint/helplessness, fear of shame/judgement by family and friends, regret of bad decisions etc.) while Mr. Kavanaugh may have been confident, secure, playful and inebriated – and has no memory of what to him may have been perceived as a careless prank of no significance.

    Needless to say, I can’t reconcile the two testimonies in any other way – I don’t believe that either one is intentionally lying.

    The important question is character and competence. There is a great deal of evidence and support by a wide range of people for the assertion that Judge Kavanaugh is of good character and highly qualified. Even if Ms. Ford’s assertions are substantively correct, does this single incident at age 17, followed by 38 years of exemplary conduct, disqualify him? How do we calibrate this with the sentencing of Bill Cosby to 3 yrs of incarceration? Is there any possibility of redemption?

    I don’t have any answers but I hope that this will allow for more productive conversations.

  10. How easy it is to say things everyone around you agrees with; how difficult it is to speak to the reality of the process without succombing to partisanship. I applaud the level-headed analysis.

  11. I did not say the credibility question was a wash. I am quite confident that Republicans believe Kavanaugh was more credible than Ford and – partly for the reasons you lay out – Democrats believe it is the other way around. What I did say was that for the purposes of providing political cover to their respective constituencies, both Ford and Kavanaugh cleared the bar from the perspective of senators in each party. Your comments regarding Kavanaugh’s character raise an interesting question regarding how much and what quality of character matters in a judge, and what would be evidence that a nominee lacks the requisite character to merit confirmation to the bench.

  12. Only commenting on the two testimonies in question (and not on how they lived their lives over the last 35 years), I see things a bit differently …

    Regarding Ms. Ford’s testimony, it’s near-impossible to point to any of Ms. Ford’s testimony and think to yourself “she’s almost certainly lying”. I guess it’s possible that she was lying about some things, but nothing screamed “she’s lying” to me.


    On the other hand, there are numerous cases with Kavanaugh where you think to yourself “he’s definitely lying” … such things as Devil’s Triangle = drinking game … Renate Alumnius = endearing comment about a great friend … etc.

    And then there’s the larger effort/denial by Kavanaugh in relation to the questions about blacking out and forgetting events while intoxicated. That whole series of denials is an outright lie. His own comments speak to that. Comments from Kavanaugh’s friends/acquaintances show that to be untrue. And common sense tells you that Kavanaugh is lying about it. I’ve known literally hundreds of people who drank during high school and college, and I would be hard-pressed to single out one of them who never drank so much at some point in time, that at the very least, their memory of the event was “iffy”.

    Whether Kavanaugh actually was guilty of the assault, is innocent, or actually can’t remember (due to memory loss / blackout), we can’t be sure … but what I am sure of is that he made a conscious decision to not admit to blacking out while drinking, no matter how hard he was pressed, because doing so would open up a whole new can of worms (the possibility of him being guilty, but not remembering it).

    None of these lies from Kavanaugh prove that he is guilty of the assault in question, but it does show that he’s a liar under oath, and that in itself is probably disqualifying.

  13. John – Several commentators have tried to argue that we shouldn’t be disqualifying Kavanaugh over behavior that occurred when he was 17, given that it was followed by several decades of, as you put it, exemplary behavior. In the #MeToo era, however, we’ve seen that argument run into political headwinds in a way that it might not have three decades ago. I don’t think it’s an argument Republicans want to use in favor of Kavanaugh’s confirmation – certainly it’s not one Murkowski or Collins want to use. In any case, Kavanaugh has effectively burned that bridge by categorically denying the incident ever happened – it is hard to see, given his denial, how he could walk that back to say maybe it happened, but it was an inebriated 17-year old engaging in a “careless prank” that went awry, no matter how accurate that characterization. The other explanation – assuming neither is lying – is the one that Ed Whelan rather clumsily raised, which is that Ford has the wrong person. Again, however, Ford has been steadfast that it was Kavanaugh who assaulted her. If you dismiss both those options, then it becomes a he said-she said issue. I though Flake was particularly candid when he admitted that after hearing both Ford and Kavanaugh testify he didn’t know who to believe. As I said in the post, when the evidence is not conclusive, invariably people with strong partisan beliefs tend to evaluate circumstantial evidence in ways that are consistent with their partisan preferences. I don’t expect that to change in this case.

  14. Josh – no prosecutor worth her salt would bring charges based on what is known (according to media reports) about this case to date. There’s no date, or location, of the crime – indeed, it is not even clear who would have jurisdiction. Sorry, but don’t take my word for it – ask anyone with legal training.

  15. David – If, as you say, Kavanaugh lied under oath, then that raises an interesting question regarding whether that by itself should disqualify him from serving on the Court. Of course, many (most) Republicans don’t agree that he lied under oath. We do have witnesses who said he was frequently inebriated in college, but Kavanaugh apparently addressed those claims in closed-door testimony, and other witnesses support his description of his behavior. So, we are back to who do you believe, and why – which is the point of my post. On the other side, if you follow conservative sites, there is a small army of pundits who seem to have no other purpose in life than to show inconsistencies, or worse, in Ford’s testimony. They are certain those inconsistencies disqualify her as a credible accuser. Given this, I suspect most Republicans in the Senate feel comfortable voting to confirm, and most Democrats to vote against confirmation. Determining the truth is, I think, another matter – one that I suspect cannot be achieved in a way that will overcome partisan prejudices.

  16. All these comments coming from guys, so I have to step back in. I am pleased with the decision to hand this over to the FBI. I just don’t see how this could not be done in fairness to both Ford and Kavanaugh if it was not. and in today’s climate it is going to be really hard to get at the truth.
    First should we ruin Kavanaugh life and chance to serve on the Supreme court for mishaps, careless, foolishness, etc as a teenagers? Well I happen to know a family that went through this with their teenage daughter who accused a teenage guy at her private school during high school of sexual assault. Should his life be ruined because of his recklessness – in this case following “acceptable rituals” the guys engaged in. In my friend’s case she stood up, got her day in court and the guy was found guilty. It is now on his record, it follows him for life? His life is “ruined” by whom? What about her life? She also has to move on. What she went through following, during, and after the trail was almost as bad as the assault itself – including being shunned at her school by more than just students for ruining this outstanding male student. It also caused her and her family to move. If you want the gory details you can read her book she has written in the hopes of helping others to avoid, speak out and hold those accountable. It is a survivor’s story of sexual assault, justice, and hope. “I Have the Right To”.
    Then there is the issue of Kavanaugh being absolutely sure he didn’t assault Ford. They both have what they see as the truth. My tendency is to lend towards Ford’s truth. Why? Because from my experiences of what I see and read it is rare for a woman to come out with a sexual assault accusation and it not be true. And if you don’t understand the reason for this and why sometimes it takes years or decades then you aren’t up on what happens to a women when she come forward and speaks her truth. We are finally, hopefully in a time when we as women will be taken more seriously.
    The problem I have with Kavanaugh is that I have heard his story over and over from almost all guys accused of sexual assault. Loud and clear a resounding “No” – even our President.
    They are innocence, respect women, support women and their causes, pillars of the community, great family man, well liked, and if they have been around for years they have been positive contributors to our society and done a great deal of good. How could they be what they are accused of? Then the verdict comes down and we see the well hidden – or maybe not so well hidden just given a pass because the men have the power – he is guilty. His life in ruins, because of whom? Sorry guys, women are tired of taking the blame for your guilt. My apologies to all you men out there who have been honest supporters of women, and there are many of you.
    While I understand Kavanaugh’s anger his lashing out in the manner he did and accusations he shouted out I found to be very disturbing and really made we wonder about him being a Supreme Court Justice. And for the “record” I hold liberals and conservatives to the same accountabilities. Neither side gets a pass.

  17. Frances – Nicely stated. I think you eloquently express the views held by a lot of people – men and women – regarding Ford’s claim and Kavanaugh’s response. However, in the wake of Kavanaugh’s denials, and the lack of clear-cut evidence that a crime took place, are you confident enough in your belief to vote against Kavanaugh’s confirmation? What standard should we use in a case like this? Should we be concerned about the precedent that is being set?

  18. May I say, with all my heart…and mind, that discussions like the one above, the desire to communicate one’s opinions without the ghastly partisan clashes currently ripping apart your nation’s social fabric, remind us that there remains hope that some kind of reason will yet prevail. By ‘us’ I mean the rest of the world, who hope and pray thar America may pass through this cancerous partisan politics, and maintain its role in the family of nations. Thank you for your commendable, balanced rhetoric.

  19. David,

    I suspect there is deep partisan differences regarding whether a) the evidence is conclusive that Kavanaugh frequently/ever drank to blackout stage and b) whether that issue is even relevant to whether he deserves to be on the Court, either as an assessment of his “temperament” or “character”, or whether it means he lied under oath and if so whether it matters given the issue.

  20. David,

    I suspect there is deep partisan differences regarding whether a) the evidence is conclusive that Kavanaugh frequently/ever drank to blackout stage and b) whether that issue is even relevant to whether he deserves to be on the Court, either as an assessment of his “temperament” or “character”, or whether it means he lied under oath and if so whether it matters given the issue. And Ford’s testimony has also come under question by Kavanaugh’s supporters, although for obvious reasons they are reluctant to directly press those concerns. From their perspective, “seeming credible” is far different from proving something happened. Again, the difference is how one views the “preponderance of evidence” criteria.

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