The Daily - The Conservative Divide Over Kavanaugh

Episode Date: September 25, 2018

Conservatives have been deeply split about how to respond to allegations of sexual assault against Judge Brett M. Kavanaugh. That’s now starting to change. Guest: Ross Douthat, an Opinion columnist for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. Conservatives have been deeply divided about how to respond to allegations of sexual assault against Judge Brett Kavanaugh. Why that's starting to change. It's Tuesday, September 25th.

Ross, before these allegations emerged against him, was there anything that essentially all conservatives agreed on when it comes to the nomination of Brett Kavanaugh? They all agreed that he should be confirmed, I think, is the most reasonable way to put it. Ross Douthat is an opinion columnist for The Times. I mean, conservatives basically spent decades winning presidential elections, appointing Supreme Court justices,

and then being really disappointed with how those justices ruled. So conservatives basically spent a period starting in the 70s and 80s trying to build a kind of intellectual project that was associated famously with the Federalist Society to ensure that Republican administrations would sort of know what they were getting. And Kavanaugh, you know, he's a Federalist Society judge. He's the guy who all of my conservative lawyer friends in Washington loved from the beginning and said, this is the guy we should nominate and so on. Okay. So what has happened since these allegations emerged within

the conservative movement when it comes to Brett Kavanaugh? Well, I would say that there are, at this point, roughly three camps. What do you make of all this Judge Kavanaugh stuff? Well, it's hard to know what to make of it. And the first camp, which, you know, shows up in figures as diverse as the Republican nominee for Senate in North Dakota. These people were teenagers when this supposed alleged incident took place. Teenagers who evidently were drunk, according to her own statement. They were drunk.

Even if something like this happened, it was in high school. It's not that big a deal. Maybe it was just horseplay. And, you know, there should be a statute of limitations for things that aren't actually rape and could be open to multiple interpretations and so forth. This is sort of, you know, boys being boys, high school records shouldn't matter kind of perspective. And that's pretty common. The difficulty that it's run into is that it's not actually the defense that Brett Kavanaugh himself is making.

Right. So this argument is sort of, on the one hand, pretty culturally widespread among conservatives and not only conservatives. I've talked to apolitical people who basically take this view, too. But it's a little bit irrelevant to the kind of defense that Kavanaugh himself has mounted. But I'm struck that while no senators are publicly saying, like, yeah, this is my camp, this is how I view things, maybe in part because, as you said, Kavanaugh himself isn't saying this, there are senators who are saying that their mind is already made up before the hearings are even heard.

I'm just being honest. Unless there's something more, no, I'm not going to ruin Judge Kavanaugh's life over this. For example, Lindsey Graham. And aren't those senators effectively saying this isn't disqualifying behavior, even if it's true? Maybe. But I think some of those senators are taking the view that, you know, we already know from their perspective that this isn't going to be resolved, right? That there isn't going to be some smoking gun or dispositive proof either way. What am I supposed to do? Go ahead and ruin this guy's life based on an accusation. I don't know when it happened. I don't know where it happened. And everybody named in regard to being there said it didn't happen. Again, that may be wrong, but that may be the assumption that they're making. And that in that

case, they're basically taking a sort of innocent until proven guilty perspective, right? They're saying, look, we're giving Kavanaugh the presumption of innocence. And these allegations, you know, haven't been corroborated by any of the witnesses the woman has put forward. So therefore, it's not enough to deny the nomination. I think that would be the other line of argument they would use. So from your perspective, a senator like Lindsey Graham isn't speaking in code by saying this isn't disqualifying. That's not code for I don't care about this. He's saying in a legalistic sense, from what I've heard, I doubt the testimony will prove this beyond a reasonable doubt. I mean, yeah, I don't want to speak definitively for Lindsey Graham, but I think that if you had him on this show, he would say, it's not that I don't take these kind

of allegations seriously. I just think they have to meet a test that, for instance, the Weinstein allegations met. These haven't met that test. Therefore, they're not enough to deny a person a high office when otherwise their reputation is sterling. Okay, what's the second camp of conservatives? How else did we see those on the right divide up when Dr. Blasey Ford came forward? Well, the second camp is what you might call the sort of agnostic, uncertain, and open-minded camp. Judiciary Chairman Chuck Grassley offered Ford a buffet

of ways to tell her story. Either in an open session or a closed session or a public or a private interviews. That's four different ways she can choose to come. And this is the official view of most of the leading GOP senators, right? This is sort of Chuck Grassley's view officially. It's certainly Susan Collins' stated view. Obviously, if Judge Kavanaugh has lied about what happened, that would be disqualified. Jeff Flake's stated view and so on, which is these are serious allegations. We need to hear them. If they are true, they're probably disqualifying. Certainly if now that, you know, Kavanaugh has denied them, if it can be showed that he's lying about that, then they're disqualifying.

But they are just one person's word against Kavanaugh's. So we need to hear them both. We need to interview other witnesses, hear what they have to say, and then make a judgment. So Camp 2 is basically arguing, if true, this is probably disqualifying, but we need to figure out if it's true. So let's find out. Right. And it's people who are, I think, open to multiple theories of what could have happened here. They're open to the possibility that Kavanaugh definitely did it. They're open to the possibility that this is some kind of mistake of memory. And they're open to the possibility that it's

a fabrication. But they think that all of those options are plausible given the limited evidence that we have so far. I talked to him on the phone today. And what did he say to you? Well, he didn't do that. And he wasn't at the party. So, you know, there's clearly somebody's mixed up. Ross, where does the idea of mistaken identity, that Christine Blasey Ford somehow is mistaking, misremembering that it was Brett Kavanaugh?

Do you believe the accusers at all? Well, I think she's mistaken. I think she's mistaken something. Where does that fit into this big camp number two that we're talking about? I mean, I think it's the view considered by people who think that Brett Kavanaugh is likely telling the truth but don't see any clear reason why Ford would lie or fabricate the story completely. And in fact, you know, are aware that some version

of this story came up in her marriage counseling sessions long before Kavanaugh was nominated and so on. So if you take those two views, if you hold open the possibility of Kavanaugh's innocence, and you are charitable and assume that, you know, this isn't a smear, then a mistaken memory is pretty much the only explanation left. And it's also one that, you know, sort of fits, I think, with the cultural climate right now where there's, I think, a strong presumption against just saying that women who come forward with stories like this are liars. And so you're not going to want to make that argument in certain cases, even if you think it's true. But I think the people, you know, the most famous case now.

Now, the story erupted last night after Whelan sent out a series of tweets, which he's since taken down. Ed Whelan, the sort of now very unhappy head of the Ethics and Public Policy Center, who tweeted. That Professor Ford may have mistaken Brett Kavanaugh for a different classmate. He looked at what Christine Ford told the Washington Post and figured out, OK, these people were named, these four people, where did they live? And looked at what she had said and figured out what house it may have happened at, because it was the house closest to the golf course. A version of this mistaken identity theory that actually specifically identified another kid in Kavanaugh's class

who looked like him and sort of fit what Whelan thought was the profile. Whelan actually named that classmate whom he suggests may have sexually assaulted Professor Ford, who was 15 at the time. The man is now a middle school teacher. I'm quite sure that Whelan himself thought that this was a totally reasonable explanation and expected that in airing this, you know, that he was going to sort of shake something loose, that he was going to get somebody who knew more about this to come forward, or that Ford herself was going to see this and say, well, maybe I did make a mistake,

which obviously didn't happen. She quickly dismissed the idea. But I mean, from my own perspective, you know, the mistaken identity theory seems to me to be still, notwithstanding, you know, the foolish tweet storm, still the most reasonable way of reconciling the possibility that Kavanaugh is telling the truth

with the possibility that she's entirely sincere. Yeah, but I have a hard time buying that the mistaken identity theory is something that people who have adopted it genuinely believe in. It seems too convenient. It's the only one that allows it to be both ways. Sure, but I mean, that's true of a lot of theories, right? I mean, it's always hard to disentangle people's complicated motivations in coming to the theories that they hold, but that doesn't necessarily tell you anything

about the truth or falsehood of the theory. I mean, look, the closer you get to the political process, of course, the more cynical actors get. And when you're dealing with the average senator, you know, they're probably looking at polls and just sort of, you know, thinking about, well, what do my constituents want and how do I avoid facing a primary? There's so many imputations of bad faith and cynicism flying back and forth in this. I think it's worth assuming that even if people's ideas are crazy or dumb, most of the time they're not coming to them through a consciously cynical process on both sides.

I guess I'm just trying to parse. Do you see these camps as predominantly driven by principled thinking or by a strategic approach to how best deal with a situation and get it over with? I think that the main influence right now, it's less a sort of how do we get this over with and more a kind of tribal, we can't let these other guys win, which is slightly different. Because remember, look, conservatives are in a situation where if Kavanaugh's name is withdrawn,

there can still be another nominee. Now, obviously, nominating someone else at this moment creates all kinds of political complications. There's an election looming. You might have to confirm them in the lame duck session. You know, you'd have to get Susan Collins on board with whoever you ended up nominating. There are plenty of reasons not to want to do this. But if Kavanaugh is a wounded nominee, it's not like you're absolutely stuck with him. And what I see from conservatives is this sort of digging in based on what they perceive

as the sort of unfair, unreasonable tactics of liberals. So it's not a sort of cynical, how can we get this guy through? It's the much more typical of our moment, tribal, you know, if these people are against Kavanaugh, we have to be for him. You know, if Kavanaugh has the right enemies, then I've got to be on his side or else those enemies will win. I think that's the main psychological dynamic here. And what about the third camp, Ross, that conservatives are in? The third camp just says, look, this is a smear. And we're sure it's a smear. And we're not interested in sort of debating, you know, whether he was a teenager and what

difference that makes. You know, we don't need to be agnostic. It's clearly a partisan hit job. You can tell by the way the allegation was managed or mismanaged by Democrats in the Senate. And we should just confirm Kavanaugh because you can't be held hostage by these kind of smears or every nominee will be held hostage by them. And this camp, I should say, has actually gained momentum and support on the basis of

the second allegation. What do you mean? So Ronan Farrow and Jane Mayer published this piece in The New Yorker where a woman came forward saying that Kavanaugh had exposed himself to her during a drunken game that involved dildos or sex toys during freshman year at Yale. conservatives looked at that reporting and thought it was unconvincing, shoddy, and seemed more obviously sort of ginned up by a search for a second allegation. And so they're reacting to that by essentially hardening their position by saying this looks more like a witch hunt. And if that's what's happening, then we can't let it happen. It's a hit job. We have to fight it. Can I understand, Ross, what makes conservatives, and perhaps you're among them,

think that an on-the-record recollection of sexual misconduct, which was contained in The New Yorker, is flimsy? Is it the timing when it came out? Because it is still a very rare thing in our culture to have someone say on the record, something happened to me. It represents tremendous risk and fortitude. Certainly, but I think this is a context where the authors of the story acknowledged that this was an allegation that was not brought forward but was sort of specifically pursued by Democratic politicians and staffers

looking for another allegation. I mean, there's a whole discussion of how the accuser had deep uncertainty, more uncertainty than Dr. Ford about the allegation. There is all kinds of evidence contained within the story about how people who would be, according to her, in a position to confirm this story were unable to confirm it or denied it outright. You have one confirmatory witness who claims to have heard about it secondhand, who won't identify himself. And frankly, you have the fact that our own newspaper had attempted to corroborate the same story and interviewed 25 to 35 people from this Yale class who might be in a position to be able to confirm

the story and was, again, at the time the New Yorker ran with it, unable to confirm it. I mean, look, I forget about being a conservative. I think there's a lot of journalistic uncertainty around the weight and credibility of the story right now. That may change tomorrow. It may change between when we're having this conversation and when it goes live online. But I think that the neutral reader should be able to see in that story certainly reasons to believe that it might be accurate, but also reasons to see why it looks like a fishing expedition with a lot of uncertainty around it. And again, I think that if you're sort of in Kavanaugh's camp in any sense, that's going to make you more skeptical of it. But the first allegation remains as credible now as it ever was. So from the conservative

point of view, why would a second allegation on top of a deeply troubling first allegation undermine rather than strengthen the case against Kavanaugh? Why wouldn't we think there's no reason to doubt her, so why would we doubt this second woman? First of all, I think there are some reasons to doubt the first allegation, namely that, you know, we've been unable to find any sort of confirmatory evidence

from the people that Dr. Ford herself named, including one of her friends, as potentially able to confirm it. So there's already some doubt about that allegation. And so then you get a second allegation, and it seems less credible and more created by a partisan atmosphere than the first one. I don't think it's at all surprising that that would make people who have reasons to believe Kavanaugh or be committed to him feel that this feels more like a witch hunt, basically. It's not entirely fair, but I think it's sort of psychologically inevitable that that makes you cast more doubt on the first one as well.

So the bottom line here, where it stands right now, is that you believe that for conservatives who were skeptical, this gives them a reason to lean into that skepticism, and Camp 3 grows, and Camp 2 shrinks. As of right now, pending developments tomorrow. Yes. I would say there's a stronger rally around the nominee than there was before.

Hmm. Do you think that Me Too, as a cultural movement, has caused any of these conservatives to make a different choice than they would have before Me Too? And if so, do you think it's because they had an authentic reaction to Me Too or just simply because they understand that politically, the way you treat a woman's allegation has changed? I don't think that you can meaningfully separate those two impulses. I think that undoubtedly, lots of conservatives were perhaps more willing to credit allegations against Kavanaugh than they would have been similar allegations 25 or 30 years ago.

And that is connected to what's happened in our culture and what Me Too has exposed. But I don't think parsing the sort of sincerity versus the pragmatism or cynicism really reflects how the human mind works. The human mind sort of internalizes things. And in your conscious mind, you are responding in a principled and aboveboard way. And maybe in your subconscious mind, you're sort of manipulating things so that the politics all fit together. But I think conservatives are just human beings like everybody else. And looking for the cynical explanation or the idealistic explanation is a mistake. It's all just muddled together. Ross, thank you very much. Thank you, Mike. It was a pleasure.

On Monday, conservative leaders rallied around Judge Kavanaugh, calling the latest allegations against him a choreographed campaign by the left to ruin his reputation. But I want to be perfectly clear about what has taken place. Senate Democrats and their allies are trying to destroy a man's personal and professional life on the basis of decades-old allegations that are unsubstantiated and uncorroborated. In a speech from the Senate floor on Monday afternoon, and uncorroborated. In a speech from the Senate floor on Monday afternoon,

Majority Leader Mitch McConnell challenged the allegation of a second woman, Deborah Ramirez, first reported by The New Yorker, calling it a, quote, last-minute smear. That, Mr. President, is where we are. This is what the so-called resistance has become. A smear campaign, pure and simple, aided and abetted by members of the United States Senate. A few hours later, Judge Kavanaugh and his wife, Ashley, forcefully denied the allegations of both Ramirez and Dr. Blasey during an interview with Fox News. What I know is the truth, and the truth is I've never sexually assaulted anyone in high school or otherwise.

I am not questioning and have not questioned that perhaps Dr. Ford at some point in her life was sexually assaulted by someone in some place. But what I know is I've never sexually assaulted anyone. In the interview, Kavanaugh was asked about claims that he and male classmates drank heavily and targeted women at parties. We're talking about an allegation of sexual assault. I've never sexually assaulted anyone. I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter. And the girls from the schools I went to and I were friends. So you're saying that all through all these years

that are in question, you were a virgin? That's correct. Echoing conservative leaders, Kavanaugh said he would fight the allegations and that he has no plans to withdraw his nomination. fair process where I can be heard and defend the my integrity my lifelong record my lifelong record of promoting dignity and equality for women starting with the the women who knew me when I was 14 years old I'm not going anywhere do you believe that President Trump is going to stand by you throughout I know he's going to stand by me. He called me this afternoon and said he's standing by me. We'll be right back. Here's what else you need to know today. The Times reports that over the weekend,

Deputy Attorney General Rod Rosenstein told two White House officials that he was strongly considering resigning after it was reported that he had suggested secretly taping President Trump and discussed using the 25th Amendment to remove him from office. Rosenstein raised the idea of resigning with White House Chief of Staff John Kelly and White House Counsel Don McGahn. By Monday, Rosenstein was so convinced that Trump was about to fire him that his staff drafted a statement about who would succeed him.

So far, he remains in his job, but is expected to meet with President Trump on Thursday to discuss his future. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.