I wasn't going to say anything more than the little bit I've said but am moved to comment given the pivot by Judge Kavanaugh supporters over the past few days, culminating in the outrageous and horrible display by the supporter-in-chief in Mississippi yesterday. Quite a few Kavanaugh supporters including the chief originally recognized that Dr. Ford was credible (sometimes softening it to be that she believed "something" happened). However, the Kavanaugh supporters (including himself) first pivoted to attacking the messenger i.e. minority party as well as the process (which of course mainly was controlled by the majority party). And we heard the "no corroboration" on her side, plenty of "corroboration" on the nominee's side even though neither of those things is true. Finally, less than a week after everyone described her testimony as credible, we are hearing direct attacks on Dr. Ford's credibility beyond her supposedly being a pawn of the evil opposition party. It's time for me to speak up, at least clinically.
This will not be a political assessment since as most of you know, as a judge I try (and sometimes fail
) to stay away from politics in public for ethical and practical reasons. As an aside, I think it was Tommeke who mentioned in one of the Kavanaugh threads that I stay away from politics in public and questioned whether Judge Kavanaugh's political rants in his testimony would be disqualifying. I didn't respond to him on purpose to avoid that question since a big part of it is personal to Judge Kavanaugh, but I'll give my personal opinion now. I don't believe it to be disqualifying, but likely will be problematic for him on the highest court or any federal bench in the future. His expressed political position on a most public stage certainly will be grounds for litigants to raise bias or appearance of bias on almost any political question or a matter involving federal public policy. That is, most every case in the federal court system. It doesn't mean that he should or will recuse himself, but you can bet it will be raised whether he's on the USSC or any other federal court and that's exactly why I avoid politics in public.
Anyhow, this thread is about witness credibility and not politics. I'll try to make this clinical and not political. I already expressed somewhere, I think as an aside on a dailies thread last week, that of the thousands of witnesses I've had in my courtroom over the past 21 years, none was more credible than Dr. Ford on Thursday. I didn't express my objective reasons since that was a gut assessment last week but the reasons would include her direct answers to questions, appropriate emotion, candid concessions, overall demeanor, no evident personal or political agenda beyond telling the truth, obviously wanting to "help" the process instead of gaming it, no material inconsistencies and several other things. Her credibility was so evident that essentially everyone including Kavanaugh supporters acknowledged her credibility following her testimony. It didn't take a judge or jury to make that assessment.
On the other hand, while keeping an open mind, I found Judge Kavanaugh's testimony to be a textbook for testimony that is not credible. I knew it in my gut while watching the hearing, but early Friday morning, I decided to jot down the objective reasons why I felt that way and while it took just a couple minutes, it did turn out to be a textbook. I showed it to my fellow judge and she agreed with all of it. Neither one of us is a better judge of credibility than anyone else although we both have judicial experience and training over the past 21+ years. When it comes down to it, whether someone is lying or telling the truth is a gut assessment and my gut is no better or worse than anyone else's. For what it's worth, here are the objective indicators why I found Judge Kavanaugh's testimony to be not credible, exactly as I jotted them down last Friday morning:
-Combative and Belligerent--attacking questioners
-Deflect to different issue from question
-Inappropriate emotion e.g. cry at his name being sullied
-Repeated talking points, phrases as if rehearsed e.g. "no ill will"
-Refuse to answer yes/no questions
-Answers center on self instead of the question
-Inconsistent prior statements such as backing off previous choirboy characterization
-Third party statements inconsistent with the witness's testimony
-Demeanor e.g. sweaty, fidgety, drinking water
-Refuse to agree to professional independent investigation
-False in one, false in all (note: that's the way I jotted it down because I forget the latin phrase which basically means that if you lie about one thing no matter whether material to the issue at hand you can be presumed to lie about other important things. Here, among other relatively small immaterial proven falsehoods, I was thinking about his description of "boof" and "devil's triangle" which may or may not be material to his suitability for the bench but which are material to his credibility since his descriptions were patently false.)
There may be other things but those were off the top of my head and i could be out to lunch on any of them. I'd be interested in hearing from any of you from your perspectives about the credibility of either witness last Thursday. Your insights probably are more valuable than mine and I look forward to learning more about how to tell who is lying and who is telling the truth. I don't plan on replying to your comments here because I don't want to get into a debate or discussion about what the Senate's decision should be. But I will listen to whatever you have to say about witness credibility especially in the context of the confirmation hearings, but also in your personal experience. Thanks.