The Kavanaugh Hearings Were Something Else, Weren’t They

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

The Kavanaugh Hearings Were Something Else, Weren’t They

10/02/2018

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

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Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. Elie Mystal cannot be with us today, but I have a special guest.

I have Kathryn Rubino also of Above the Law and the host of The Jabot podcast. How are you?

Kathryn Rubino: I am doing well. How about yourself? Well, I am certainly doing better than Brett Kavanaugh right now.

Joe Patrice: Well, you don’t know that since this episode doesn’t come out until —

Kathryn Rubino: I suppose it’s true but we can say that we are in the middle of testimony, enjoying the recording between Brett Kavanaugh, currently going on right now and this morning was a testimony of his first accuser, Dr. Christine Blasey Ford.

Joe Patrice: Yeah. So we are in the midst of that and so obviously we don’t know what’s going to happen between now and when this episode comes out, because things are moving fairly quickly and we do not broadcast live.

That said, I think we can draw some conclusions based on what we have seen so far and just legal conclusions frankly that was what I was more looking toward, because let’s talk real quick about this morning’s testimony, so this morning Republican senators opted not to ask any questions?

Kathryn Rubino: They did not. They handed it all off to Maricopa County prosecutor Rachel Mitchell.

Joe Patrice: Yeah. But they didn’t like give her just a block of time, they went back and forth, so she got five minutes to ask questions before a senator from the Democratic side of the aisle would speak.

Kathryn Rubino: Yes. Well, I mean the issue is that the Republicans wanted a hearing because they felt like they needed to have a hearing, but didn’t want any actual information to come from the hearing. So they scheduled a rather short hearing to hear Dr. Ford’s testimony.

I think that it was — if I remember the numbers correctly, it’s about half the amount of time and testimony they had scheduled for this allegation than they did in 1991 when Anita Hill came forward with allegations of sexual harassment against Clarence Thomas.

So we are talking about half as many minutes to ask questions and I think that the format that the Republican majority decided upon was tragic for them.

Joe Patrice: It seemed like it was ill-conceived. I think the logic was of course to not have a vision of a number of mostly elderly white men asking questions about this, but instead what they ended up with was this awkward optics of not — of just sitting there as specters while other people asked questions and then the questions though, some of them had come from them, so they included — basically all the damage was getting done, but without any of the possible benefit. It was a thing.

Kathryn Rubino: It was bad. And I mean the other thing is the person that they got, Rachel Mitchell, she is a prosecutor who prosecutes sex crimes. So her job, her day-to-day life is believing victims, is getting victims to testify in courtrooms, so it seemed like an odd choice from if you are Republicans. If you actually care about things like the truth of the matter and what happened, maybe this makes sense, but given the format and other sort of tips and hints that we have gotten from the GOP, it doesn’t seem like that was really their goal.

But I think that it put Mitchell in a very awkward position. I think that her last set of questions to Dr. Ford were specific about the format being problematic and it seemed as if Mitchell was admitting, yeah, no, this is fucked up. Sorry you guys, this isn’t my fault.

Joe Patrice: Yeah, it did seem — the testimony did end with her making a claim that this seems like a poor format. It seems like a format that did a disservice to what we were working on and that an investigation would have been better, which we are all talking points that certainly the other side had been talking more about.

I thought that — what I found interesting about it is for those people, Elie, while he was not able to join us today, did tweet throughout most of the day, one of the things he tweeted about that I think he was right about was that there are a lot of people in this world and this goes back to the episode we had a couple of weeks ago where we were talking to the Guys Who Law, people don’t understand what cross-examinations actually look like.

Kathryn Rubino: Sure.

Joe Patrice: They think that it’s some Perry Mason or whatever, but what this prosecutor was doing actually was what a good cross-ex would theoretically sound like, the problem is there was no rhythm to it because it was interrupted every five minutes. It was punctuated by dumb questions because she had an obligation to read the questions of the Senators given to her. When you could tell she was making follow-ups of her own, it actually was very good. Like you could tell there was a lot of skill involved here.

(00:05:05)

That said, many of those questions where she was able to go off on her own, you kind of got the feeling that her natural instinct of building a criminal case against somebody who had done something rather than denigrating a victim was where her instincts were.

Kathryn Rubino: I mean I think that’s definitely true. And I mean listen, she doesn’t normally do it in five minute increments and I think that there is a lot of dragging of Mitchell on social media right now saying what a terrible job she has done, blah, blah, blah. I think that that is certainly true in terms of a partisan since her questions did not poke any holes in the fundamental credibility of the witness, which if you want Brett Kavanaugh to be the next Supreme Court Justice is something you were really hoping for. So I think from that perspective it was problematic.

But the reality is she did a very good job. She is skilled at what she does. This is not her normal — having a partisan role is not something she normally does and I thought that that’s what the last series of questions was kind of meant to illustrate. And I think that I understand Republicans not wanting to be only men asking questions, maybe they should have a woman then on the Senate Judiciary Committee.

Joe Patrice: Yeah.

Kathryn Rubino: Never in the history of the Senate Judiciary Committee has there been a female Republican on the Committee. Let’s just let that sink in for a second.

Joe Patrice: I mean they try to get women — yeah, they — I mean the goal is to get women who are attorneys and I guess the, I don’t know, of the female Republicans currently in the Senate I am not sure how many came at that job from a legal background, I haven’t ever looked.

Kathryn Rubino: Sure, never though.

Joe Patrice: But I think that’s — yeah.

Kathryn Rubino: Whatever.

Joe Patrice: Obviously there are generally not as many female Republicans any way.

Kathryn Rubino: I think that’s something to be aware of, and they literally got someone whose job it is to believe victims.

Joe Patrice: Yeah.

Kathryn Rubino: It just seems like an odd choice from a partisan perspective, and I don’t believe they had a truth finding goal at mind. I think that flies in the face of every other hint that we have from the process.

Joe Patrice: Social media darling, former US Attorney for the Southern District Preet Bharara tweeted out at the very end that Mitchell closed her questioning by pointing out everything wrong with the way in which the procedure had gone, which he felt was a strong finish, but certainly not one that that I think the people who brought Mitchell in could have possibly wanted.

I want to talk a little bit about something that caught some Twitter fire for us over here. At one point in the testimony Senator Klobuchar points out that the doctor had taken a polygraph test and the results of that showed that she told the truth and entered that into the record. But noted while she did so that all she was entering in the record were the raw results because the expert who actually was supposed to interpret those results was forwarded as someone to be interviewed by the Committee and that was denied.

Kathryn Rubino: Yeah.

Joe Patrice: So let’s take this bit by bit. Polygraph testimony, how do you feel about polygraph evidence?

Kathryn Rubino: Well, I am kind of — I think it’s pretty problematic personally, but I know what Brett Kavanaugh thinks about it.

Joe Patrice: Okay. Yeah. No, that jumped way, way, way, way further ahead than the actual question I asked, but yeah. No, it’s largely — it comes real close to pseudoscience. It’s a device that was kind of created, largely created with work from the guy who created Wonder Woman as a character, so.

Kathryn Rubino: Yes, yes. I think there is some documentary about the Wonder Woman that I have seen that brings that whole thing up.

Joe Patrice: Yeah, the Lasso of Truth is because he like legitimately believed he could tell if people were lying. So it’s this slightly better than phrenology maybe pseudoscience that many people have made over the years a lot of hay explaining how it’s not actually reliable, but it does have some evidentiary value.

Obviously people who are telling lies tend not to ought to get one. So there’s at least some —

Kathryn Rubino: So there is at least a risk there if you are lying.

Joe Patrice: I am saying there is a self — yeah, so there is a bit of a self-selection issue, like if you choose to take one, you probably are — you are indicating that you feel good about your testimony. Anyway, so there is that.

Judge Kavanaugh has not taken a polygraph test, which is curious since he has written opinions before about how much.

Kathryn Rubino: Yeah, and you have actually done a little bit of research into his — what he thinks about polygraphs.

Joe Patrice: Yes, he thinks they are great. He has written opinions about how he thinks that they are absolutely warranted by government agencies, law enforcement, people making hiring decisions, they should be able to use polygraphs and test them.

In fact, in one instance he was — he made a decision in a FOIA context that an entity shouldn’t have to turn over polygraph stuff, including they should not have to turn over any internal diagnostics they have about the quality of their polygraphs because that might undermine public faith in polygraphs.

(00:10:02)

Kathryn Rubino: Well, because they are fake.

Joe Patrice: Well, say about that what you will, I am not necessarily saying whether or not this is good or bad or indifferent evidence, but I do think there is something to be said for the hypocrisy of telling people who are on the losing end of job decisions because they took a polygraph machine that that’s their fault, polygraphs are great, and then when confronted with a polygraph against you refusing to at least sack up and do it yourself.

Kathryn Rubino: Sure. I mean that’s a really smart decision if you are not being a 100% accurate with the truth though, right?

Joe Patrice: Yeah.

Kathryn Rubino: I mean I understand why these things happen.

Joe Patrice: Yeah. So I am taking these weird pauses because as I said, we timed this a little bit wrong, so we recorded — we started recording like right a few minutes into Judge Kavanaugh’s opening statement so we are seeing updates about that as we are talking.

Kathryn Rubino: Yeah. I mean this job, if you weren’t already kind of — writing a legal blog during Senate confirmation hearings makes you a social media junky, I have done more twittering today than I have in a year — tweeting —

Joe Patrice: Is it tweeting?

Kathryn Rubino: Tweeting, tweeting, whatever, you know what I meant though, which is the point.

Joe Patrice: Yeah. I mean I just believe in precision here.

Kathryn Rubino: I think that language is flexible and is ever evolving.

Joe Patrice: Oh, do you now?

Kathryn Rubino: And so I think that you should be pretty open to these kinds of changes in our lexicon.

Joe Patrice: Hmm.

Kathryn Rubino: Hmm.

Joe Patrice: I am a textualist.

Kathryn Rubino: If only you were.

Joe Patrice: Yeah, so we are getting updates as things go. Apparently, he just went on a tear about that Renate Alumnus Club allegation. It’s come across so far badly for him in a lot of different ways, I feel.

Kathryn Rubino: He began his opening statement very red and angry and screaming, which I think is the opposite image than most people have of sober as a judge. He came across as whatever you imagine the opposite of that to be, which take the actual truth of the allegations out of it for a second and just look at those optics, doesn’t look great for him.

Joe Patrice: Yeah, it strikes me — so I recently re-watched Clarence Thomas’ high-tech lynching statement.

Kathryn Rubino: Sure.

Joe Patrice: Just because I had some feeling like this might be relevant to me in the near future.

Kathryn Rubino: Smart move.

Joe Patrice: And he is very angry obviously. It is a very forceful and angry speech, but it is nonetheless a measured speech. He says he is angry about this, this isn’t true, move on kind of, but he comes across, rightly, wrongly, whatever, he comes across very measured and a judge. He seems like a judge who you have contempt — you have gone into contempt in front of him, he is mad.

This, at least as it began and obviously it’s still going, as it began it did not begin that way. It began wildly angry, yelling.

Kathryn Rubino: Unhinged.

Joe Patrice: Jumping into conspiracy theories. He didn’t say George Soros, but he was real close to saying that some crazy left-wing billionaire was paying for everything, which from my perspective, it struck me that somebody in this process should have. He said that no one had looked at his statement but one of his clerks. It seems like somebody else should have looked at his statement before he went off on this, because from my perspective even if — if you are saying you want to show that you don’t believe these allegations and argue them, sure, maybe. And maybe as an argument to those this is compelling.

But as a statement that you are not the sort of person who becomes violent with people, that you are not somebody who is all over the place, that you are not somebody who is so in the tank for partisans that you clutch at straws and believe in conspiracy theories, all those other complaints people have raised about him were just doubled down upon.

Kathryn Rubino: Yeah, yeah, and just to kind of tack back slightly to your point about comparing and trusting Clarence Thomas’ statement with what we are seeing now in Judge Kavanaugh’s opening statement, I also think that there is something that is played out very differently in 1991 than now, which is the way that race plays a role here.

I think that Clarence Thomas was very aware that he cannot be an angry black man and still be a Supreme Court Justice.

Joe Patrice: At least in 1991, definitely in 1991.

Kathryn Rubino: Yeah, especially in 1991 and I think —

Joe Patrice: Strom Thurmond was on that panel, yeah.

Kathryn Rubino: Yeah. I think he was very aware of the optics that race was playing in his confirmation proceedings and I think that race was also used to Anita Hills’s detriment. I think that a lot of her stoicism and I thought what I perceived was class in answering a lot of those questions came across not as sympathetic to a lot of the white people who were watching and I think that that has been very much in contrast with what’s going on. And also this morning with Christine Blasey Ford’s testimony, but to kind of make a perfect comparison between them I think is a little bit inaccurate unless you really account for the way that race obviously played a role in those two.

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Joe Patrice: That race dynamic is fascinating actually and I think it makes a lot of sense. I definitely think there is something different, and I also think — but to your point about kind of a stoic response, the measured response, it feels as though there has been a break from 1991 until now on the side of the — as far as the strategy of the — I don’t want to make it sound like strategy, obviously these people are telling their stories, but on the presentation of the victims, while there is also a race dynamic, there is also a perhaps trying to be — not seem weak and that Anita Hill might have done was probably a poor decision and there was much more why don’t you just tell your story unfiltered without us trying to micromanage it, like I think a lot of people think happened to Anita Hill, where there was a lot of trying to make it look right and this was more unfiltered.

Whereas, what happened on the other side was a being angry worked for Thomas, you try your version of angry and going to the same playbook seems to have failed on that part.

Kathryn Rubino: I think that’s true. And I think the other difference in terms of your comparing and contrasting Anita Hill’s testimony with Christine Blasey Ford’s testimony, I think the other difference is the impact that the #MeToo movement has had.

I think that over the last 18 months or so the prominence and amount of stories that people have heard about sexual assault and sexual harassment and sexual misconduct generally has made the average listener more comfortable hearing some of the pain and anguish that goes on when people are victimized. And I think that has also played a part of it, but again, I am not discounting any measure that race played a big role in how Anita Hill was perceived in 1991 and how the response to Ford’s testimony has been overwhelmingly positive. I think the worst thing that a Republican has been able to say about it is she is not, not credible.

Joe Patrice: Yeah. Lindsey Graham said worse, but yes, John Cornyn said she is not, not credible.

To go back to how Mitchell handled this cross for the people who may not have seen crosses before, like I feel like a good example of it, like it followed the regular playbook of these sorts of cases. A lot of focus on not remembering specific details, obviously the traumatic event is going to be the thing you remember more than anything surrounding it. However, part of the strategy here is you ask questions about little details that aren’t there in a way to create doubt in people’s minds that she is not the perfect victim, like some weird platonic ideal that people have of that.

And that certainly went down that road, those were the sorts of questions that happened, I just feel like, at least as you said, what we are seeing from people reacting to it is that most folks believed — they have started to realize that maybe that’s okay. Maybe it’s not inconsistent to say that I remember somebody attacking me 36 years ago and I don’t remember what song was on the radio 36 years ago, that those — that kind of memory operates differently.

Which is a thing that for years was utilized, I remember the William Kennedy Smith rape trial in the 90s, that strategy was used by Roy Black to great effect. You don’t remember this, you don’t remember what color this was, you don’t remember that, and that was a time where people took that as reasons to not believe, whereas now I think people are more attuned to the idea that is possible you remember certain things at different levels of magnitude.

Kathryn Rubino: I think that’s true and I do think as kind of a society we have become a little bit more sophisticated about the way that we understand sexual assault and sexual misconduct, but the other thing is I think that the Democrats handled it very well in terms of their questionings. They just wanted admitted into record studies that said sexual assault survivors are likely to have gaps in their memory, sexual assault survivors, all these kind of scientific studies and data points that proved that Ford’s testimony falls in line with truthful testimony of sexual assault.

And I think that they handled it well, in a very matter-of-fact, well, of course that this is true, now tell us what you remember, what’s the — one of the most powerful moments in the testimony was when Ford was asked what was the one thing she remembered most vividly from that evening and she talked about hearing Kavanaugh and judge laughing. And I think that was able to speak very poignantly about the moment she remembers and Democrats just kind of putting into the record well, science says of course she is not going to remember it all.

Joe Patrice: Yeah.

Kathryn Rubino: Of course, of course, it seems very matter-of-fact. I think it becomes very easy to understand for the casual observer.

Joe Patrice: Yeah. And we saw also, I am just going to put this in as a personal level, so we saw in both the questioning this morning briefly and in Kavanaugh’s opening statement the return of Ed Whelan’s Bonkers Theory, Ed Whelan, the National —

(00:20:00)

Kathryn Rubino: Crazypath.

Joe Patrice: For until — I think he is still — I think he might be on some kind of a leave of absence, but the National Review’s legal reporter over last week put out a bunch of stuff about how he had been on Zillow and he had figured out that she doesn’t remember Brett Kavanaugh, she remembers somebody else and he has figured this out because somebody else had a floor plan in their childhood home according to Zillow, the better matched —

Kathryn Rubino: And I mean that’s something that we see — we literally see Kavanaugh doing right now, right, he said oh, I don’t doubt that she might have been sexually assaulted by someone at some time, but it certainly wasn’t me.

Joe Patrice: He brought up the houses. He started talking about Zillow. He talked about floor plans and everything, like no, it’s clear that whatever Whelan got his insane theory, which has resulted in him being ostracized even by right wing — his right wing allies and now being forced to take a leave of absence from his job. What I learned today basically is that Kavanaugh was the source of all of this.

Kathryn Rubino: For sure.

Joe Patrice: He clearly believes the exact same theory and he outlined it. So that was our — but watching Ed Whalen embarrass himself was funny, because he is an utterly humorless idiot.

Kathryn Rubino: But I mean compare and contrast the way that that hit and this kind of pulling at straws conspiracy theory and how it’s been perceived versus the utter clarity with which Ford testified; she was asked point-blank, what degree of certainty are you sure that it was Brett Kavanaugh who did this to you and she said 100%. And she was utterly believable in that moment, clear as a bell, and I think that that is going to play a lot better and a lot stronger than pulling up a map and a Zillow floor plan ever will.

Joe Patrice: Yeah. I mean obviously by the time this episode comes out, we will probably have —

Kathryn Rubino: Know one way or the other.

Joe Patrice: We will probably know one way or the other how this played, but it is interesting just to break down from the legal perspective like how certain things are just — I mean that’s what’s insane to me is like the judge is the one grasping at weird circumstantial evidence whereas the doctor is not.

Kathryn Rubino: He seems like a bad judge right now.

Joe Patrice: I mean yeah, it’s just weird. There are so many more guarded ways to go about this, more I feel like this is untrue. You can say — like the questions, the poke holes by not remembering this, not remembering that, perfectly, not perfectly, but that’s the playbook for proving something wrong, going off on weird second gropers from behind the grassy knoll that lived in different Zillow houses.

Kathryn Rubino: Similar houses.

Joe Patrice: Yeah, like that just undermines any level of credibility that I think he had, yeah.

Kathryn Rubino: Yeah. I mean he doesn’t seem serious anymore. Like separate and apart, if you are able to and I don’t begrudge anyone who can’t do this, but if you are able to somehow take away the accusations themselves, and let’s be clear, it’s not just one woman who has come forward at this point, there have been three.

Joe Patrice: Right, multiple, yeah.

Kathryn Rubino: But kind of just putting a pin in that for a moment, he does not comport himself as you would like a Supreme Court Justice to comport themselves in moments of stress, period, full stop.

Joe Patrice: Yeah, yeah, that’s the big take away from this is just the weird legal team meltdown that led to just —

Kathryn Rubino: Man, I wish I could be a fly on that wall, like how did this prep session go?

Joe Patrice: Yeah, was there one?

Kathryn Rubino: How do you not have one? Like are you a bad lawyer too because lawyers prepare, that’s what you are trained to do.

Joe Patrice: Usually.

Kathryn Rubino: You would think and if there was ever — was there a prep session, was there never a prep session, who is in charge of this train, because I know what it’s coming at and it’s so terrifying.

Joe Patrice: Yeah, because if you are the Republicans, you have to — if you are Kavanaugh’s camp, you have to assume that your audience are the handful of four potentially defecting Republican senators.

Kathryn Rubino: Sure.

Joe Patrice: And like what about this is designed to appeal to them?

Kathryn Rubino: Zero, nothing, nothing about what he has said so far has been geared towards Collins.

Joe Patrice: I mean I guess maybe you are aiming for Manchin and Donnelly on the grounds of trying to convince their constituents that it’s a vast conspiracy paid for by George Soros, but —

Kathryn Rubino: I think that — I think Christine Blasey Ford was too compelling for that to work.

Joe Patrice: Yeah. My prediction — I mean obviously we will know one way or the other is that the three jeopardized red state Democrats are going to utilize what happened and jump all on the our wives and daughters canard, which —

Kathryn Rubino: Which is problematic.

Joe Patrice: Which is very problematic, like rape shouldn’t be a bad thing just because you might have a daughter.

Kathryn Rubino: Sure, because they are people.

Joe Patrice: Yeah, because they are actually people.

Kathryn Rubino: A few women like people but then you know —

Joe Patrice: But that I think is going to be the tack they take with their constituents is like I listen to somebody who could have been my wife or daughter.

Kathryn Rubino: Yeah, very compelling, the emotional testimony, blah, blah, blah.

Joe Patrice: And that’s going to be how they go, yeah. But so yeah, then at that point, your real audience has to be the Republicans.

(00:24:58)

Kathryn Rubino: I don’t know, I think that this is problematic. I think there are too many qualified other Republican judges out there that would do just as much harm to Roe v. Wade as Kavanaugh will and as a matter of like kind of rational actor kind of theory, I don’t understand the play of letting this go to a vote.

Joe Patrice: Right. I mean what I have said about this is I don’t understand, if there is an argument that you want to get it done before the midterms, makes sense, sure. Probably you are going to win the midterms, the Republicans are for the Senate, just because of the map, but you might not, so you are worried, get it, totally understandable.

But this is the point where I mean norms are gone at this point, so why not yank this guy, turn around to one of the judges who has just gone through a confirmation hearing within the last year, say we have already had a confirmation hearing with this exact same constituent Senate, with the exception of McCain, who has been replaced by Republicans, so it should be the same. We are just going to choose one of them, we will have a vote tomorrow, we don’t need any more hearings. Now that’s a breach of norms, but at this point norms don’t matter, like —

Kathryn Rubino: It’s better than this debacle that’s going on right now.

Joe Patrice: You just call Joan Larsen who got 60 votes in her confirmation and say, we already know — you do that —

Kathryn Rubino: Are 10 people really going to turn?

Joe Patrice: 11. Yeah, all of these people voted already so you have got pressure on them.

Kathryn Rubino: What’s changed?

Joe Patrice: What’s changed? That’s how you get the — like Joe Manchin votes for it one time, why isn’t he voting against it this time, that’s pressure. That actually works. I don’t understand why they didn’t just do that. I mean the only — well, it’s not even win because that would have been a win too.

I think it really is — there is a deep-seated, we have got to do everything to own the libs, like just whatever it is that makes more liberal people mad is an end of itself and I mean more power to him. If I were them I would do whatever it took to get the path of least resistance to get the vote I want on the court.

Kathryn Rubino: I mean if I were a dyed-in-the-wool Republican I would be like I don’t care, we need that vote on the court tomorrow before the midterms. We just need to get this done. As soon as it started looking like it was going belly-up, pull it.

Joe Patrice: Yeah, pull it.

Kathryn Rubino: Pull it, immediately pull the ripcord, get Joan Larsen, get Thapar in there, get somebody else in there and take the vote. I mean I am glad that they haven’t done that I suppose, for my personal politics, but it doesn’t make sense if you are just game theoring this out.

Joe Patrice: Yeah, time for a little game theory. So on that note, we should close up and get back to this. I see from my computer screen here that people are starting to ask questions.

So read Above the Law. Follow us, I am @JosephPatrice. She is @Kathryn1 at Twitter.

You should give reviews to this podcast, stars, write things, that helps us get discovered by more people, listen to the other offerings of the Legal Talk Network, and while not on the Legal Talk Network, Kathryn’s show, The Jabot.

And yeah, that’s everything. So we will be back to you very soon. Bye.

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