The Daily - Today’s Hearing: Trial or Job Interview?

Episode Date: September 27, 2018

The Senate Judiciary Committee opens its hearing into allegations against Judge Brett M. Kavanaugh today. At stake for both parties is the swing seat on an ideologically divided Supreme Court in the thick of an election battle for control of Congress. Here’s a preview of each side’s plan for the hearing. Guests: Peter Baker, who covers the White House for The New York Times, and Sheryl Gay Stolberg, who covers Congress. 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, as the Senate Judiciary Committee opens its hearing into allegations against Judge Brett Kavanaugh, at stake for both parties is the swing seat on an ideologically divided Supreme Court in the thick of a midterm election battle over who will control Congress for the final two years of President Trump's term. So what's the plan on each side? It's Thursday, September 27th.

Peter Baker, how are Republicans on the Judiciary Committee approaching today's hearing? Well, the Republicans on the committee are looking at this basically through the eyes of a criminal-type procedure. They're trying to basically make this an argument about fairness and due process rather than an argument about what Judge Kavanaugh might or might not have done. In other words, they believe that there should be a presumption of innocence due process the way there would be anybody brought to court on a criminal charge, that unless you can prove these allegations against Judge Kavanaugh, he ought to be afforded the presumption that he's not guilty, that he didn't do these things. So they're thinking of it as a trial.

Yeah. What they're trying to say is this is a character assassination, a smear campaign that's not backed up by enough evidence. No prosecutor would bring 36-year-old allegations like this to trial without witnesses who were there at the time or other evidence that would corroborate it in a powerful way. time or other evidence that would corroborate in a powerful way. And so they're trying to say that we shouldn't presume that Judge Kavanaugh did this simply because there is a witness saying it or even a credible witness. She may get up there and she may be very persuasive and their argument is going to be as persuasive as she is, we ought to give him the benefit of the doubt because she can't prove it as if she were proving it in a criminal trial. It's a real test of credibility. Does the judge seem more believable to people who watch the two of them back to back? Or does his accuser, Dr. Christine Blasey Ford,

seem more believable? And since we don't have an FBI investigation or any other kind of witnesses appearing at the hearing, it really comes down to these two people. So to get around that, the Republicans, in effect, are saying, let's give the benefit of the doubt, in effect, to the accused. That's an American value.

The presumption of innocence. The presumption of innocence. Of course, that's American value in criminal cases, not confirmation specifically. But they're saying, let's apply that standard here in order to be fair. It's not fair to this man who spent a whole career studying and working in government and in politics and on the bench in the circuit court for 12 years to get to this point. It's not fair to derail his career and his whole life if you cannot prove these charges are, in fact, real. In other words, it's a he said, she said, but that is an uncomfortable idea with Anita Hill and our past and in this current moment. But it's less uncomfortable

if you reframe he said, she said as innocent until proven guilty. I think that's right. Because in fact, in some ways, the burden in society generally has shifted in the last year, particularly from where it was back in the Anita Hill and Clarence Thomas days.

Back then, in effect, it was up to Anita Hill, according to a lot of people, to prove that Clarence Thomas had done the things she said he did. In this day and age with the Me Too movement, with so many terrible cases coming to light, there is a natural presumption these days to say, we need to believe these accusers. We need to give them,

in fact, the benefit of our understanding and not question them just because they've come in for it. They're courageous in coming forward and we need to make it possible for real victims to come and tell their stories. That presumption, in effect, therefore, works against Judge Kavanaugh. And so the Republicans, in stressing the idea of a criminal type standard, a presumption of innocence and a, you know, innocent until proven guilty kind of approach, are trying to shift that burden back to the accuser. So, Peter, who's actually on trial here then? In the Republicans' minds, is it Kavanaugh who's on trial or is it Dr. Blasey Ford? Well, in a way, almost everybody's on trial here in this experience. Obviously, you have Judge Kavanaugh facing these very, very serious allegations, allegations that would be a crime if brought in a court of law. You have Dr. Blasey Ford whose credibility will be put on trial to some extent.

a court of law. You have Dr. Blasey Ford, whose credibility will be put on trial to some extent. And in fact, the Republicans have even hired a prosecutor to do the questioning for them so that they do not look like they are beating up on a victim of sexual assault the way Anita Hill looked in 1991. But even the senators, I think, in some ways are on trial. They're on trial because of that 1991 experience in the court of public opinion. We're right in the thick of a midterm election campaign. And how they handle this, how they approach this hearing could go a long way towards influencing the way voters think about senators from both parties. And why are Republicans choosing to use a prosecutor exactly? I get the part where that reinforces the idea that this is a trial. That seems pretty straightforward. But beyond the appearance of it feeling like a trial,

what's the purpose of using an outside prosecutor? Well, in this case, they've hired a prosecutor named Rachel Mitchell, who works in Arizona as a sex crimes prosecutor, as an investigator for authorities there. She's worked on a number of cases involving Catholic church sex abuse allegations. And her experience is bringing sex abusers, sex predators to justice. In this case, obviously, she's working for the side on the hearing that doesn't want to believe these allegations are true, that wants, in fact, to believe that they're not true. So they're using

somebody who is as experienced as you could get in proving these types of allegations to, in effect, undercut them in this instance. Who would know better than somebody whose professional career has been spent proving sex crimes if she were to come out of this saying basically that these are not proven? Hmm, that's really fascinating. So they're bringing in a prosecutor who they'll say,

if anyone can prove this, it's her, and they're banking on the idea that it cannot be proven. Right, exactly. And it would seem, anyway, to give the argument to the public that this is a more credible conclusion because she's not in fact inclined to let sex predators off the hook. This is somebody who's made her life putting them in jail.

Right. I guess the question we may not know the answer to, but I'm certainly curious about is, did she say, for instance, look, I'm going to do my job and my job is to get to the bottom of this. And if the outcome of that is that Dr. Blasey Ford looks good and Judge Kavanaugh looks bad, I'm just doing my job. Yeah, it's a great question.

And, you know, one we'll see a little bit better later today when we watch this. You know, how does she approach this? Does she approach it as an advocate? Would she approach it as a neutral fact finder? We've got a professional whose role is not 100% defined yet. She does work for the Republicans and not the Democrats. So you sort of presume that she's taking their lead on the kinds of questions that they would like to ask, but we'll have to see. So for this strategy to work for Republicans, what's Kavanaugh's part in

it? Well, Kavanaugh has a very tough challenge. When Clarence Thomas went before this committee way back in 1991, he expressed anger at the way he had been treated. He said, this is a high-tech lynching, but that's not considered to be a viable strategy anymore. So his goal is to appear persuasive, maybe even indignant, but not angry and not accusatory toward Christine Blasey Ford. And we saw sort of a dress rehearsal for this on Monday night on Fox News when he went on and gave an interview. I am looking for a fair process, a process where I can defend my integrity and clear my name.

You could tell he had a few lines he was sticking with. He was rehearsed. Again, just asking for a fair process. He wanted to come back to the same phrases that he thought were the message he wanted to get across. Again, again, just asking for a fair process. He wanted a fair process. He said 17 times. He said... I've always treated women with dignity and respect. He always supports the dignity of women. He said...

What I know is I've always treated women with dignity and respect. Four times. I've never sexually assaulted anyone. I've never sexually assaulted anyone. He's never sexually assaulted anyone, he said. Not in high school, not ever. I've never sexually assaulted anyone in high school. In high school or otherwise. Six times.

Wow, you counted. Yeah, because it came across as repetitive. And I think that's something they're a little worried about in this hearing. His advisors, President Trump wants him to be a little bit more forceful in his denial. You have to show, they think, a little indignation. If you were falsely accused, you would be upset about it. So there's a real fine line between indignation and anger that might look accusing of the victim. He's planning to say in his opening statement

that he doesn't question that something bad happened to Dr. Christine Blasey Ford, and he doesn't question her credibility. He's simply saying it wasn't him. And that's the fine line he's trying to walk here. I have to say, Peter, as someone who watches a lot of congressional hearings and sometimes kind of loses track

of what the point of them is. There's something kind of brilliant about framing this as a trial because trials, of course, and we're trained to think this way, are kind of easy and familiar to follow. We know the point of it. And rather than an open exploration

of decades-old allegations without being clear what happens at the end, you know, are you supposed to make a decision based on a feeling, a gut instinct? A trial gives a very clear framework to this thing. Have we proven that he did this? Well, that's right, exactly. And this is a country that has been raised

on law and order television shows, right? So consider this the law and order Capitol Hill edition, if you will, at least as the Republicans would like to frame it. And we know how that works. A prosecutor gets up, he or she tries to prove something beyond a reasonable doubt. If we have even a shred of uncertainty, then you're obligated by the system to default in the benefit of the accused.

That's the standard that the Republicans would like to set here. But whether they're able to actually convince others of that standard or not is the open question. Are people going to buy the idea that this should be conducted like a trial? Peter, thank you very much. Thank you. It was great talking to you. We'll be right back. Cheryl K. Stolberg, we just heard our colleague Peter Baker say that Republicans are approaching today's hearing like a trial, knowing how difficult an allegation like this is to prove.

So how are Democrats responding to that same challenge? So, Michael, Democrats are looking at this as more of a job interview. They say it's not a trial. It's simply a hearing to determine whether or not Judge Kavanaugh is fit for a lifetime appointment to the highest court in the land. And Cheryl, how will a job interview style format for this hearing be different from a trial setting? that just because Christine Blasey Ford has made these allegations, if they wouldn't stand up in a court of law, they're not enough to keep Judge Kavanaugh off the bench. But Democrats view it entirely differently. They don't think that this needs to be a situation of beyond a reasonable doubt. They just want to know, what is his character? Is he truthful? Is he the kind of person who's deserving of this job, which, after all, is a privilege, not a right? And why do Democrats want to avoid that trial-like question, that burden of proof?

question, that burden of proof? Because if you're framing this as a trial, there really is no way that Judge Kavanaugh could emerge the loser. It is going to be probably impossible for Christine Blasey Ford to prove that what she says happened, happened. There are no other witnesses at this hearing tomorrow. Others who were said to be in the House at the time have said they don't remember this. So it becomes kind of a he said, she said. And if it's a he said, she said in a legal sense, then Judge Kavanaugh gets acquitted, right? So Democrats prefer a he said, she said, in which there isn't the kind of technical legal burden of proving anything. Right. It's not that he's convicted or he's acquitted. It's just they want to look at how he answers a variety of questions, not just whether or not he committed this singular act of sexual

assault. And what do you anticipate this looking like, this job interview? I anticipate Democrats trying to poke holes in Judge Kavanaugh's truthfulness by bringing up accounts that have come forward in recent days. For instance, Judge Kavanaugh has said on Fox News that he was a regular high school boy. He did his community service projects, and he played sports, and he studied, and that really does not comport with some other accounts, notably that of his Yale freshman roommate who said that Judge Kavanaugh was normally reserved, but that he was a notably heavy drinker, even by the standards of that time, and that he became belligerent and aggressive when he was very drunk. Democrats are likely to bring in Judge Kavanaugh's high school yearbook, where he talks about himself

as being treasurer of the Keg Club. And also, he listed himself as a member of the Renate Alumni Club. Renate was a woman who apparently was being made fun of by boys in Judge Kavanaugh's high school who were supposedly boasting of their sexual conquest. When she found out about this through a New York Times story, it was very humiliating for her. And it certainly doesn't speak to the kind of character that you would want in somebody who's sitting on the Supreme Court. And in this model, Kavanaugh is the one, of course, who's applying for the job. So I imagine Democratic senators will focus mostly on him rather than his accuser, Dr. Blasey Ford, right? Well, they will question Christine Blasey Ford, and she will, in fact, testify first. But I would expect them to be very gentle with her

and very respectful. They'll ask her to tell her story. We know that she said it really stuck with her. It was a defining moment in her young life. She sought therapy over it, wasn't able to have comfortable relationships with men for four or five years after that really had a lasting imprint on her life. I'm sure Democrats will draw her out on that as well. And how does gently allowing her to tell her story fit into the strategy of Democrats to kind of disqualify him in the job interview? Well, she needs to be seen as credible. him in the job interview? Well, she needs to be seen as credible. She needs to be seen as somebody who is not motivated by a desire to deny Brett Kavanaugh a seat on the Supreme Court, but rather as a citizen who simply felt she had a story to tell, felt it was her civic duty to inform senators about what she knew, and was coming forward for that reason. And I would also expect, Michael, that we will hear questions from Democrats about why she came forward. What was the process? Did she want to remain confidential?

Why is that important? is that important? Because she's a more powerful witness if people understand that she never wanted to go public in the first place. She was kind of forced to when details of her letter started leaking out and her identity leaked out. And she heard things that were being said about her that she felt were inaccurate. Reporters were showing up on her door. And so she felt compelled at that point to go public. But it was never her intent. Do we know how Dr. Bozzi Ford is preparing for this hearing today and for her part in this job interview? In a word, no. If that were being made public in any way, I would know. But her lawyers are keeping such a tight hold. We don't know where she's preparing. We don't know where she's staying.

I've tried to find out what is she wearing or even any small detail. And we are getting radio silence on that. We just don't know. And what about the prosecutor, the outside lawyer that Republicans have hired and plan to ask to question both Ford and Kavanaugh on their behalf? How can we expect the Democrats to interact with her? You know, my expectation is that the Democrats really will not interact with her at all. I don't know if they'll try to contradict her or try to jump in as they might in an ordinary situation where one of their Republican colleagues was speaking up. I think that will be interesting to see.

So in a very real way, this concept of a trial and job interview will unfold simultaneously, but not really overlap, other than that they are occurring in the same room and they are directed at the same two people, Kavanaugh and Ford. That's right. And that may feel really strange. Well, it may feel really strange because it is really strange. This is not how things are done in the Senate. You know, first of all, senators like to talk. So the notion that Republicans would cede their time to a prosecutor, to a third party, is highly unusual. And we don't

really know how it's going to play out. Sure. What will make for a successful version of this job interview for Democrats? At the end of tomorrow, it feels like it's make for a successful version of this job interview for Democrats? At the end of tomorrow, it feels like it's clear what a successful version of this will be for Republicans. They will simply have to not prove that Judge Kavanaugh did anything to Dr. Blasey Ford. What does success look like for the Democrats, given the structure that they are pursuing? the structure that they are pursuing. So I think the Democratic version of success is just raising enough doubts about Judge Kavanaugh to sink his nomination, to just plant the seeds in senators' minds that, you know what, I'm not so sure about this guy. Maybe there's a better guy for the job.

And that bar would seem to be a lot lower in a job interview, as we've discussed, than in a trial. That bar is a lot lower in a job interview. Absolutely. Okay, so Cheryl, we know that Democrats and Republicans have two very different strategies going into this hearing today. If this is a trial, as Republicans think it is, who is the jury? And if this is a job interview, as Democrats think it is, who ultimately makes the hire? Who is the audience here? Republicans, Jeff Flake of Arizona, Susan Collins of Maine, Lisa Murkowski of Alaska, and maybe Dean Heller of Nevada, who are either undecided or who simply haven't said what their decision is. And in the end, that's really who both Democrats and Republicans are pitching their strategies towards. The big question is,

will those senators see this as a legal proceeding or do they view it as a job interview? And what happens if they view it as a job interview? And what happens if they view it as a trial? So if they view it as a trial, it's going to be really hard for these allegations to carry great weight in their decision making, to influence their decision, because it's impossible to prove them. So I suppose if they view it as a trial, he gets confirmed. But if they view it as a job interview, then this all goes into the mix of what kind of character he has and whether or not he's deserving. And do they have any doubts about that? Is there something nagging at them that worries them, that makes them feel like, gee, you know what? I don't feel quite comfortable giving this guy this high-powered job.

giving this guy this high-powered job. And in the end, maybe those senators will vote no, and we'll be looking at a new Supreme Court nominee before long. Cheryl, thank you very much. Thanks, Michael. The Senate Judiciary Committee will begin its questioning of Dr. Blasey and Judge Kavanaugh at 10 o'clock this morning. Here's what else you need to know today. On Wednesday, a third woman accused Judge Kavanaugh

of sexual misconduct during high school in the 1980s. The woman, Julie Swetnick, said she saw Kavanaugh at parties where women were verbally abused, inappropriately touched, and at times gang-raped, and that Kavanaugh himself participated in some of the misconduct, a claim Kavanaugh flatly denied. We've had a great three days at the United Nations in New York. A few hours later, during a news conference at the United Nations,

President Trump was asked how the many accusations of sexual misconduct against himself have influenced his view of those against Judge Kavanaugh. Well, it does impact my opinion. You know why? Because I've had a lot of false charges made against me. I'm a very famous person, unfortunately. I've had a lot of false charges made against me. I'm a very famous person, unfortunately. I've been a famous person for a long time. But I've had a lot of false charges made against me, really false charges. I know friends that have had false charges. People want fame. They want money. They want whatever. So when I...

Under questioning from reporters, Trump continued to vigorously defend Kavanaugh, but said he was open to withdrawing the nomination, depending on what happens at today's hearing. It sounds like what you're saying is there is a situation, there is a scenario, under which you would withdraw Brett Kavanaugh's nomination. Is that correct? If I thought he was guilty of something like this, yeah, sure. And you will wait until tomorrow to make up your mind? I want to watch. I want to see. I hope I can watch. Later on Wednesday night, yet another accuser emerged,

claiming in an anonymous letter to a Republican senator that Kavanaugh had drunkenly and aggressively pushed a woman he was dating against a wall after they had left a bar in the 1990s. Kavanaugh denies the allegation. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.