Brett Kavanaugh's Trip to the Twilight Zone

A legal scholar dissects Thursday's emotionally charged confirmation hearing.
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Judge Brett Kavanaugh is sworn in before testifying during the Senate Judiciary Committee on September 27th, 2018, in Washington, D.C.

Judge Brett Kavanaugh is sworn in before testifying during the Senate Judiciary Committee on September 27th, 2018, in Washington, D.C.

Whatever else it accomplished, or failed to accomplish, Thursday's remarkable confirmation hearing for Supreme Court nominee Brett Kavanaugh did upend some cliches.

"It was very odd!" says Aya Gruber, a professor of law at the University of Colorado–Boulder. "What you would expect is the rape victim would be crying and trying to calm herself down. Instead, [Christine Blasey Ford] was trying to be helpful, trying to hold back her emotions and be professional. Then Kavanaugh began testifying, and everything exploded!"

Gruber, who has written extensively about feminism, rape culture, and the law, spoke to Pacific Standard about what we did and did not learn during the course of the testimonies. As the committee moves to advance the nomination to the full Senate, it seems likely the hearings will be seen as a landmark event in the history of both the Supreme Court and gender relations in America.

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That was some of the most emotionally raw testimony I have seen outside a Shakespearean tragedy. How did you feel Blasey Ford came across?

Dr. Blasey Ford came across as a credible witness who was trying to do her civic duty. She was trying to be helpful, trying to honestly recount something she had remembered. To me, it wasn't enough evidence to put the accused in jail, but it was substantial and concerning. So I thought she came across very well. She was a very forthright witness.

Kavanaugh, on the other hand, was often very angry. Did the righteous indignation he displayed at high volume inadvertently reinforce the stereotype he was facing—that he's a privileged guy who gets angry when his privilege is challenged?

It's definitely a mixed proposition. I have a feeling the Republican base loved his performance. I have questions about whether his anger was rehearsed, but I think a lot of it was real. This is an emotionally charged moment for him. He's obviously distraught—which isn't completely inconsistent with guilt.

Aya Gruber.

Aya Gruber.

Kavanaugh talked about the Twilight Zone a lot, but it seemed Republican senators like Lindsay Graham were in the Twilight Zone, with their level of outrage. Maybe it will play to the base, which will grab onto anything to give them an excuse to do what they wanted to do anyway. But it seemed like such misplaced anger!

Let's assume that Graham is right—that the Democrats got this allegation and tried to play it in the most political way possible. You can say "Yuck." But at the end of the day, there is still this credible allegation out there. I guess he thinks the American public won't care that, at the root of all this, there is a basic question: Whether having a credible allegation like this should be disqualifying for the Supreme Court.

Should it?

You can answer that question in different ways. You can believe her and also believe he's a different person now. That would be a reasonable position. But [because they stuck with a blanket denial], the Republicans don't give anyone the option to take that reasonable position.

Did you believe his denials?

At the end of the day, we'll never know what he did. To a reasonable person, it's plausible that it was him. What's not plausible is that he was a choir boy. That's the story he began with, until it started falling apart.

What did you make of Arizona prosecutor Rachel Mitchell's questions, and why do you think the Republican senators yanked her off the stage after a few rounds with Kavanaugh?

Because she was asking Kavanaugh the only good questions! She's a prosecutor. She can't help but ask pointed questions about the facts she wants to get to. It's in her DNA. Some of her questions to Blasey Ford were fairly irrelevant, like who paid for the polygraph. But prosecutors ask pointed questions. Senators' questions are easier to evade. She was pinning him down! So they yanked her.

I think the Democrats fell a little short, from what I saw. (I missed Corey Booker and Kamala Harris' questioning.) Every time they tried to pin him down on a factual question—like "What do the things in your yearbook mean?"—Kavanaugh would filibuster. He played this strategically: He came off at first as the victim with tears. Dianne Feinstein, being empathetic, didn't ask him any hardball questions, and after that, he just sort of filibustered.

What images from Thursday do you think will linger?

I'm going to watch the news carefully to see what clips get played. But I suspect it'll be the clip of Blasey Ford saying she's 100 percent sure it's Kavanaugh; the clip in which she talks about remembering Kavanaugh and Mike Judge laughing [while Kavanaugh pinned her down]; the clip of Kavanaugh breaking down and saying "You won't ruin me," portraying himself as a victim; and the clip in which Kavanaugh was unable to answer Senator [Patrick] Leahy's question about whether he would personally welcome an FBI investigation. And then Lindsay Graham's histrionics.

Was he just playing to an audience of one—Donald Trump?

Actually, I think Graham's outrage was authentic. Think about what he said over and over again: If we let allegations like this—of boorish, sexist behavior in high school—derail the nomination of Kavanaugh, then—I'm quoting him—"God help us all." All? I didn't engage in boorish behavior in high school! He was thinking about all the members of his ilk who become vulnerable under this paradigm.

This interview was edited for clarity and length.

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