The inevitable follow-up to yesterday’s post about Ed Whelan promising “much more” to come that’ll prove Kavanaugh’s innocence. On the one hand, Whelan and Leonard Leo are both experienced lawyers. If they think the evidence they have is strong, it probably is.
On the other hand, the amount of overpromising here is worrisome. Whelan predicted on Tuesday that not only would Kavanaugh be confirmed with no cloud of suspicion remaining over his head but “Senator Feinstein will soon be apologizing to Judge Kavanaugh.” That is … unlikely in the extreme, with the chatterati growing more skeptical by the minute. “I hear that Ed Whelan has elevator security cam video and The Apprentice footage that TOTALLY brings down Blasey Ford,” joked Alex Griswold. Another Twitter pal mused that this is beginning to smell like Trump circa 2011 crowing about the amazing things his secret investigators have discovered about Obama’s birth certificate.
If there’s a smoking gun that proves Kavanaugh’s innocence, let’s have it.
Ed Whelan’s tweets on Tuesday evening to the effect that @SenFeinstein will be apologizing to Kavanaugh next week have been the source of endless speculation among former Supreme Court clerks, conservatives at white shoe law firms, and even in the WH – https://t.co/C6xlnGXOZL
— Eliana Johnson (@elianayjohnson) September 20, 2018
But three people who have spoke to Whelan and Federalist Society’s Leonard Leo in recent days say they are “100 percent confident” they’ve obtained information that will exonerate Kavanaugh – https://t.co/C6xlnGXOZL
— Eliana Johnson (@elianayjohnson) September 20, 2018
Eliana Johnson is the Politico reporter responsible for this story today on the “exoneration rumor mill” in Washington right now — which isn’t the only Politico piece signaling extreme confidence within the White House that Kavanaugh will survive. All of which makes it sound like there is indeed an ace in the hole that will be played at the right moment to vindicate the nominee.
But … if there is, how is it that neither the White House nor Kavanaugh’s own clerks know what it is, per Johnson?
More to the point, how can there be an ace in the hole when Ford has provided next to no facts about what happened? The only way to truly destroy Ford’s accusation would be to produce an alibi, evidence that Kavanaugh was somewhere else on the night in question. But Ford hasn’t provided a date or a place. Her inability to remember key facts has left Kavanaugh unable to alibi himself out of this. Fortunately, if you’re of the opinion that this is a moment for “rough justice” for other #MeToo victims, the unfairness of the situation he finds himself in merely balances the scales of unfairness that rape victims have faced for ages. More from Griswold:
It’s hard not to pick up on the subtext that Dowd made text: thousands of women have been the victims of rape and not heeded. Therefore, in a reparative exercise in collective guilt, we must now believe the woman. The actual facts of the case and the lack of evidence or corroboration must be made secondary to the social justice concerns (and presumably, the political outcomes).
Along with the insinuation that Blasey Ford is beyond reproach for being a woman is the one that Kavanaugh is automatically suspect for being a man. “The only thing less accountable than a powerful white man against a woman’s word is one with a lifetime appointment,” writes MSNBC reporter Irin Carmon. “Guess who’s perpetuating all of these kinds of actions? It’s the men in this country,” said Democratic Senator Mazie Hirono. ThinkProgress denounced Kavanaugh’s supporters as “a collective effort to protect another influential white man from repercussions,” while Salon sneered that Kavanaugh “embodies white male privilege and affluenza… Rich, white male, right-wing Christian.”
A friend suggested to me privately that maybe Team Kavanaugh has some devastating exonerating evidence in hand but is holding it in reserve for the hearing, for maximum impact. That seems needlessly risky to me. I understand the strategy: If you share the evidence now, you give Ford some time to prepare an explanation before the hearing. But the hearing will be unpredictable; viewers will be judging mainly by sincerity, not by the quality of evidence produced. If Team Kavanaugh can somehow dissuade Ford from testifying, that’s the best possible outcome for them — and producing compelling evidence of his innocence right now might achieve it. If they’ve got something up their sleeve that’s so damaging to Ford’s account that it’ll force an actual apology to Kavanaugh from Dianne Feinstein, there’s no time like the present to share it.
But what could they have, realistically? If there’s no alibi because Ford’s memory is too vague to allow for one, there’s a vanishingly small universe of possibilities that might get the country to collectively slap its forehead and say, “Aha! Innocent!” Whelan tweeted more than once on Tuesday about a possible case of mistaken identity, in which Ford might have been attacked by someone who merely looked like Kavanaugh, but that can’t be it. “Mistaken identity” sounds far-fetched to the point of being soap-opera-ish and it has the great disadvantage of leaving it up to Ford to say whether it’s true or not. E.g.,
“Isn’t it true, Dr. Ford, that your high-school boyfriend bore a striking resemblance to Brett Kavanaugh?”
“Wasn’t it in fact your boyfriend who assaulted you?”
“No. Do you really think I couldn’t tell my boyfriend from a complete stranger? How stupid do you think women are?”
You’re not getting an apology from Feinstein from that. How about for this?
“Isn’t it true, Dr. Ford, that you once told a friend you were assaulted at a high-school party by a different man, [insert name here]?”
“So you admit it was [X] and not Brett Kavanaugh who assaulted you?”
“No, I was assaulted more than once. Many women have been, you know.”
You’re not getting an apology for that either. You might not even get a successful confirmation vote if that’s the “ace in the hole.” Unless there’s a doppelganger for Kavanaugh and he’s prepared to publicly take responsibility for what happened to Ford, there’s no solid mistaken-identity defense here.
Which leaves us with another possibility: It’s a bluff. Whelan and Leonard Leo and Don McGahn are smart guys who know that the dynamics of a hearing strongly favor Ford. She doesn’t need to prove that the incident with Kavanaugh actually happened; all she needs to prove is that she sincerely believes it. That might be enough to tilt Flake, Corker, Collins, Murkowski. “Better safe than sorry,” they might reason, preferring not to hand a seat on the highest court in the land to a guy who’s been accused of rape by a person who seems genuinely convinced of it. The only way for Kavanaugh to win is to get Ford not to attend, and the best way not to get her to attend would be to put the word out in media this week that some sort of smoking gun exists that’ll make mincemeat of her story at the hearing and leave her humiliated. Ford herself might consider that possible given her admission that she can’t remember basic details of what happened. Did I tell someone about the assault in the past and name someone else as my attacker? Could it be that the memory’s been jumbled over time? A well-executed bluff might deter her from attending. And then, when Kavanaugh is confirmed and the smoking gun of exoneration is never produced, Team Kavanaugh could say, “There’s no need to embarrass Dr. Ford by revisiting this dispute. All’s well that ended well.”
I don’t think it’s a bluff, though, Whelan and Leo et al. have *something*. I just can’t imagine what it could be that would supposedly convince so many so quickly.