How to judge Kavanaugh’s credibility

How to judge Kavanaugh’s credibility
© Pool

Do we have tools to evaluate who is telling the truth between U.S. Supreme Court nominee Brett Kavanaugh and the three women who have accused him of drunken sexual assault and other misbehavior? Is it merely a “they said, he said” situation, devoid of ways to examine the credibility of the accusations? Based on our collective six decades as litigators, law professors and legal scholars, we think not.

Numerous indicators of credibility substantiate Dr. Christine Blasey Ford’s testimony, and at least suggest, if not establish, that Kavanaugh either doesn’t remember his behavior or is lying about it.

Most lawyers evaluating credibility would ask about bias. Does either party have a motive to lie?

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As to Dr. Ford, it would be pretty hard for anyone watching her testimony to believe anything other than she would have vastly preferred to maintain her anonymity, and that by coming forward she knew she would place herself and her family at the center of a political firestorm. On the other hand, Kavanaugh has every motivation to shade the truth.

An examination of bias does not mean one person is telling the truth and the other is not, but the fact Dr. Ford was so reluctant to step forward certainly supports her credibility.

Several Republican senators have claimed that there’s “no corroboration” of Dr. Ford’s story, and therefore they have no reason to believe her. However, there’s no requirement in law that an otherwise credible witness’ testimony be “corroborated.” Nonetheless, other facts support Dr. Ford’s allegations that a drunken Kavanaugh attacked her.

Many classmates have stated that Kavanaugh was a heavy drinking party-goer in high school and college, at times “stumbling drunk.”  Kavanaugh’s own description in his high school yearbook described himself as “Treasurer” of the “Keg City Club,” and referred to “100 Kegs or Bust” and "Beach Week Ralph Club – Biggest Contributor." 

During his Senate testimony, Kavanaugh admitted he “liked beer,” but claimed that he never drank to a state where he later didn’t remember, a claim found incredible by his college drinking partner. While acknowledging that “to ralph” refers to vomiting, Kavanaugh professed that he might have eaten something spicy.  

Kavanaugh also claimed, falsely, that the drinking age in Maryland at the time was 18, a fact that bears not on whether he drank but whether he is telling the truth, today, about his drinking habits as a teenager, or is attempting to minimize its significance by claiming it was legal.  In the face of Kavanagh’s yearbook entries, especially when considered alongside statements of high school and college classmates, Kavanaugh’s Senate testimony about the extent of his drinking is almost certainly false.

But what about Kavanaugh’s treatment of women and sexual misbehavior?   Again look to Kavanaugh’s yearbook, which apparently referred to several sexual acts and disparagement of women. His yearbook references to “Renate Alumnius” and “Maureen –Tainted Whack” suggests a particular perspective on tormenting vulnerable teenage girls.

Although Kavanaugh claims the “Renate” reference was a kind note to a friend, this is laughable since thirteen of Kavanaugh’s football buddies made similar references. The Real Renate, having learned of the 35-year-old entry only days ago, certainly understands the reference as designed to humiliate a shy girl with an innuendo of sexual conquest.

Further, during his testimony Kavanaugh appears to have misrepresented other sexual references in his yearbook entries.  Does "Boofed" merely denote flatulence as Kavanaugh now claims or does it refer to a practice described in The New Yorker? Does "Devil's Triangle" refer to a drinking game as Kavanaugh testified or to something else entirely

More significantly, is "FFFFFFourth of July" a mocking reference to a classmate with a verbal tic, as Kavanaugh now claims, or something shadier as the online Urban Dictionary declares?

None of these references conclusively demonstrate that a 17-year-old Kavanaugh attacked a 15-year-old Dr. Ford, but the fact that his “explanations” today of his yearbook entries are almost certainly misleading or wrong undermines his credibility about other matters. If Kavanaugh is hedging the truth today about the meaning of embarrassing but not criminal yearbook entries, and the extent of his high school and college drinking – and even pretending his teenage drinking was legal – his denials and misrepresentations support an inference that he was either too drunk to remember or is lying today about the alleged attack upon Dr. Ford.

It’s also relevant in evaluating credibility to consider Kavanaugh’s combative testimony.  When Kavanaugh angrily derided the Democratic senators, was he responding to questions of whether he attacked Dr. Ford, exposed himself to Deborah Ramirez, or was present at a house party where a woman was gang raped, as alleged by Julie Swetnick?  Or was his rage a calculated effort to deflect attention from the accusations, to “deny, deny, deny” sexual misconduct allegations, as his patron, Donald TrumpDonald John TrumpDemocrat calls on White House to withdraw ambassador to Belarus nominee TikTok collected data from mobile devices to track Android users: report Peterson wins Minnesota House primary in crucial swing district MORE, has told others to do? 

Kavanaugh’s misrepresentations on even minor matters can be used to evaluate his credibility.  Together with his display of temper, he has raised significant questions regarding his suitability for appointment to the highest court of the land.  Regardless of whether there are additional credible allegations against him, he has shown us that there is a way to decide a “he said, she said” contest.  As his mother used to say, use your common sense.  Which rang true for you?  What rang false?

Laurie L. Levenson, a former federal prosecutor, is the David W. Burcham Professor of Ethical Advocacy at Loyola Law School, Los Angeles. John T. Nockleby, a former civil-rights litigator, is a professor of law and director of the Civil Justice Program at Loyola Law School, Los Angeles.