Bob Schwartz

A Republican Supreme Court Nominee Lied in a Senate Confirmation Hearing

ABA Model Rules of Professional Conduct
Rule 3.3 – Candor Toward The Tribunal
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;…(3) offer evidence that the lawyer knows to be false.

Brett Kavanaugh, outraged and defiant, lied to the Senate Judiciary Committee about a number of matters in the hearing yesterday:

Washington Post:  Here’s where Kavanaugh’s sworn testimony was misleading or wrong

A Republican Supreme Court nominee lied in a Senate confirmation hearing.
A Republican Supreme Court nominee lied in a Senate confirmation hearing.
A Republican Supreme Court nominee lied in a Senate confirmation hearing.

Forget about the allegations of sexual misconduct. Forget about the chronic drinking. Forget about any other suspected behavior. Forget about all of that and focus only on that one sentence:

A Republican Supreme Court nominee lied in a Senate confirmation hearing.

The drama continues, with Jeff Flake’s equivocation leading to a request for an FBI investigation strictly limited to the incident with Christine Blasey Ford. If Mark Judge agrees to talk to the FBI, which he may not, it is expected that he will continue to maintain no memory of it. The limited scope insures he won’t be asked about any other matters concerning Kavanaugh.

The Republican fix is in, the leadership has been clear on that, and relenting on a limited investigation doesn’t change that.

Instead, just look back and forth between that sentence and every Republican in office who demonstrates spineless disregard for American values and norms. Every citizen, every lawyer, every decent American should look. Look at those Republicans, then look at this:

A Republican Supreme Court nominee lied in a Senate confirmation hearing.

Mark Judge and the Theology of Whistleblowing

Mark Judge has come up frequently in the matter of Brett Kavanaugh. Judge was a high school buddy of Kavanaugh’s, and has chronicled his own wild years as a teenage alcoholic. The question Judge can answer—but so far won’t—is whether Kavanagugh was mostly a “choir boy”, as Kavanaugh swears he was, or whether together they engaged in drunken and sometimes aggressive behavior.

Kavanaugh doesn’t want an FBI investigation, Trump will not order one, and the Senate Judiciary Committee did not subpoena Judge. At this point, the only way Judge will speak out is voluntarily. And he has made clear that he does not want to be involved, that he has no memory of the particular incident involving Christine Blasey Ford, and that given his health and his recovery from long-time alcoholism, his public involvement would be detrimental.

This is all to introduce a different light on the matter. Judge’s memoirs of his life and recovery, including a high school depiction of the thinly disguised “Bart O’Kavanagh”, have gotten the most attention. But Judge, a devout Catholic, has also written frequently about the Church and about the need for more theological education.

The involvement of the Church in the Kavanaugh nomination has been pretty straightforward. It is believed that he will help in advancing constitutional limits on or even banning of abortion, and so he is favored. The influential magazine America: The Jesuit Review enthusiastically endorsed him in July. Yet after yesterday’s hearings, where it became apparent to some that Kavanaugh may have been lying about the incident with Ms. Ford, America rescinded its endorsement:

The Editors: It is time for the Kavanaugh nomination to be withdrawn

While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn….Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability….We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

This is not, however, about the Catholic position on Kavanaugh. It is about whistleblowing. Mark Judge is in the position of a whistleblower. As a general matter of ethics and theology, that is a topic that has been widely discussed by Catholic theologians and philosophers. And as a specific topic, the Church is painfully familiar with keeping secrets (yes, sexual secrets) and the theology of handling those who might open a pathway to the painful truth.

Mark Judge has no doubt sought faithful guidance on how to proceed. That religious direction may be supplanted by legal process: it is almost certain that in a Democratic Congress, the Kavanaugh matter will be pursued in hearings, even as Kavanaugh sits on the Court. That will mean a subpoena for Judge.

Duty to yourself. Duty to others, especially the suffering. Duty to your faith. Duty to the truth. As a thoughtful Catholic Mark Judge knows, as every thoughtful person of faith knows, there are way more questions than answers.

What Trump MEANT to say: “I wanted a Supreme Court nominee willing to lie to get and keep his job. Like me. And I got it.”

What Trump said immediately after Kavanaugh’s appearance at the Senate hearing:

“Judge Kavanaugh showed America exactly why I nominated him.”

What Trump meant to say:

“I wanted a Supreme Court nominee willing to lie to get and keep his job. Like me. And I got it. You’re welcome America.”