Kavanaugh's record of misleading statements gives Jeff Flake's FBI inquiry many targets

The Senate Judiciary Committee majority voted Friday to advance the Supreme Court nomination of Judge Brett Kavanaugh despite Thursday’s testimony that heightened concerns about his candor and highlighted the need for further investigation. Kavanaugh’s sweeping denials were inconsistent with his refusal to demand the FBI review that his accusers have requested. Arizona Republican Jeff Flake was right to join his Senate Democratic colleagues in demanding an FBI inquiry before any floor vote. 

It was clear weeks ago that Kavanaugh has a troubled relationship with the truth. As we previously described in detail, his denial of involvement with controversial Bush Administration matters during testimony in 2004 and 2006 as a Bush White House official were belied by White House email records that emerged during his Supreme Court nomination hearings earlier this month. 

His 2004 and 2006 testimony that he did not know or even suspect that Republican Senate Judiciary Committee staff stole confidential information from Democratic Committee staff files in 2001-2003 is difficult to square with documents that recently surfaced indicating he received this information from the staffer at the center of this scandal. In these and other instances, Kavanaugh already had a pattern of making misleading under-oath assertions in Senate proceedings prior to yesterday’s hearing.

Kavanaugh’s public remarks as allegations of sexual misconduct surfaced in recent weeks have further eroded the reliability of his word. When asked if there was “ever a time when you drank so much that [he] couldn’t remember what happened the night before,” Kavanaugh categorically stated, “No that has never happened.” However, a Yale classmate who is a physician and describes herself as a friend of Kavanaugh, said she was “shocked” at that assertion, stating, “Brett was a sloppy drunk… I watched him drink more than a lot of people. He’d end up slurring his words, stumbling… There’s no medical way I can say that he was blacked out… But it’s not credible for him to say that he has had no memory lapses in the nights that he drank to excess.” Kavanaugh’s freshman roommate similarly recalled he was a “notably heavy drinker, even by the standards of the time,” and as “frequently drinking excessively and becoming incoherently drunk.”

Kavanaugh's credibility problems

 Kavanaugh’s testimony Thursday amplified his credibility problems. His at times enraged demeanor did little to rebut the allegations, and, if anything, raised new concerns. But it was Kavanaugh’s stubborn refusal to demand an FBI inquiry into the serious allegations of his sexual misconduct that gives us the most pause when it comes to his veracity. While his opening prepared remarks suggested he had “welcomed” an FBI review when sexual misconduct allegations arose, in fact he had previously skirted the question. When repeatedly pressed by senators to endorse such an inquiry he demurred, and when specifically asked whether he was afraid of what the inquiry would show he called this a “phony question.”

Notably, the three women who have come forward with sexual misconduct claims — Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick — all called for an FBI background investigation that would determine the extent of information that corroborates or conflicts with their accounts. If Kavanaugh is telling the truth, why has he refused to join their request for this common-sense investigative step? It is also hard to believe that a judge of his stature does not appreciate the difference between a proper FBI inquiry and questioning by senators and staff without background information. 

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Indeed, an FBI background check is standard operating procedure for reviewing allegations of misconduct against candidates for top government positions. The FBI investigated claims about John Tower’s drinking habits when the Senate was considering his nomination by President George H.W. Bush to be Secretary of Defense — and in a step Republican Senator Orrin Hatch at the time called “the very right thing to do,” the FBI also examined alleged sexual misconduct by Clarence Thomas during his Supreme Court nomination proceedings.

Further testimony from yesterday that gives cause for concern includes:

►Kavanaugh’s mystifying apparent position that his friend Mark Judge’s summary written statement should suffice as the sum total of evidence Judge provides the Committee, even though two of the women claiming misconduct by Kavanaugh have expressly identified Judge as a key witness; 

►His repeated misleading assertion that other individuals Ford placed at the party where the alleged assault occurred said the incident didn’t happen, when the individuals instead stated they did not recall the gathering; and

►His claim that his “alumnius” yearbook comment was intended to show the named young woman that she was “one of us,” though she was not made aware of these yearbook references until this month, over 30 years later, when she  called them “hurtful” and “horrible.”

Time and again, Kavanaugh has made glib, categorical assertions where one would expect thoughtful and measured circumspection. His accusers, in contrast, have taken pains to note where they can speak with certainty and where they have memory gaps. In her deliberate, emotional testimony, Ford carefully noted where she could not recall specifics while also attesting to her “100%” confidence that it was Kavanaugh who sexually assaulted her — not someone else. Ramirez, who has come forward alleging that Kavanaugh exposed his genitals to her in college, reportedly wanted to take time to make sure her claims were fair and has acknowledged she does not have complete recollection of all details surrounding the event.

Implausible statements, unresolved allegations

Given Kavanaugh’s extensive record of implausible statements, his performance before the Senate Judiciary Committee and the serious unresolved allegations at stake, rushing a vote to approve him for a lifetime position on the highest court would be profoundly irresponsible. Indeed, following Thursday's hearing, the American Bar Association — the organization Kavanaugh cited repeatedly in his testimony — urged the Senate to pause for an FBI review. So did the dean of Yale Law School, his alma mater. 

If the Senate is truly committed to the truth, it must conduct basic fact-finding on the credible testimony presented by Ford and the claims of the other women who have come forward.

Confirming Kavanaugh at this juncture would evince the same kind of disdain for the truth that we have seen in the nominee — and the president who chose him. The Senate leadership and any other senator who cares about that body’s integrity, and their own, should join Flake and insist on a full investigation of the alleged sexual misconduct before any confirmation vote. 

Norman Eisen is a senior fellow at Brookings and author of "The Last Palace: Europe’s Turbulent Century In Five Lives and One Legendary House." Caroline Fredrickson is the president of the American Constitution Society and author of "Under the Bus: How Working Women Are Being Run Over." Follow them on on twitter: @NormEisen and @crfredrickson.