Benjamin Wittes, a senior fellow at the Brookings Institution and editor-in-chief of Lawfare blog, said Tuesday that, despite having defending Brett Kavanaugh in the past, he would vote against confirming him to the Supreme Court. In an essay published in The Atlantic on Tuesday, Wittes wrote that he would vote against Kavanaugh's confirmation if he were a senator. ADVERTISEMENT In the essay, titled "I Know Brett Kavanaugh, but I Wouldn’t Confirm Him," Wittes writes, "This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write." "These are words I write with no pleasure, but with deep sadness. Unlike many people who will read them with glee — as validating preexisting political, philosophical, or jurisprudential opposition to Kavanaugh’s nomination — I have no hostility to or particular fear of conservative jurisprudence," Wittes wrote. "I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him," he continued. "I have published him. I have vouched publicly for his character — more than once — and taken a fair bit of heat for doing so." Wittes also wrote that he is "keenly aware that rejecting Kavanaugh on the record currently before the Senate will set a dangerous precedent," because the allegations against him are yet unproven. "Despite all of that, if I were a senator, I would vote against Kavanaugh’s confirmation," he wrote, adding that he believed the testimony of Christine Blasey Ford, who has said Kavanaugh sexually assaulted her when they were in high school in the 1980s. Wittes also wrote that Thursday's hearing in front of the Senate Judiciary Committee, during which both Ford and Kavanaugh testified, "left Kavanaugh nonviable as a justice." Wittes, a friend of former FBI Director James Comey James Brien ComeyThe FBI should turn off the FARA faucet Barr threatened to resign over Trump attempts to fire Wray: report 'Fox News Sunday' to mark 25 years on air MORE, condemned Kavanaugh for having an "unprecedentedly partisan outburst of emotion" during his opening statement before the Senate panel. "I cannot condone the partisanship — which was raw, undisguised, naked, and conspiratorial — from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary," Wittes wrote. Wittes had previously defended Kavanaugh and advocated for his confirmation to the high court, writing in a tweet on Sept. 8 that Kavanaugh is a "thoroughly decent and honorable person." The first report of a letter detailing the first assault allegation against Kavanaugh came to light less than one week later. Three women, including Ford, have since come out publicly to accuse Kavanaugh of sexual misconduct. Wittes, who said he has had a relationship with Kavanaugh for years, wrote that "the Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met." "As much as I admire Kavanaugh, my conscience would not permit me to vote for him," he concluded. The FBI is investigating the allegations against Kavanaugh and has until Friday to conclude its review.<doc-sep>Benjamin Wittes, an early and vocal defender of Brett Kavanaugh, wrote 3,500 words in the Atlantic explaining that he would not now support Kavanaugh’s confirmation to the Supreme Court. Not one of those 3,500 words was “sorry.” Not one of those 3,500 words was “Alex” or “Kozinski.” It’s 3,500 words explaining a personal journey that brought him from blind support of a fellow elite buddy to the conclusion that a man who lies to Congress maybe shouldn’t be on the Supreme Court. Based on the reactions I’m seeing, I’m supposed to welcome Wittes to the party. Moderates are sharing Wittes’s article with me as if it’s a .gif of Vader throwing the Emperor into the Death Star. I’m supposed to welcome all of the elite legal minds who’ve spent the past month humping the “character” of Judge Duffman, if they can now see that tying their reputations to Kavanaugh’s was a disastrous call. I can respect what Wittes is trying to do, now. There are many, many other Kavanaugh defenders running around out here who have yet to show the courage and decency to publicly repudiate a man who they must now be able to see is manifestly unfit for the Supreme Court. Wittes, at least, has honor. People make mistakes, cabals make mistakes, but for society to move forward, people must be able to learn from their mistakes. There’s nothing in Wittes’s piece that suggests he’s learned a goddamn thing. There’s nothing in the letters pouring in from elite institutions — institutions that only two weeks ago were fully onboard with the Kavanaugh nomination — that suggests those institutions have learned anything. If these people and places refuse to reckon with their complicity in creating Brett Kavanaugh, then their late-breaking letters and protestations mean little. Dr. Frankenstein at least tried to kill his monster. These guys are just trying to run away from theirs. The Brett Kavanaugh confirmation process started with Brett Kavanaugh lying about sexual harassment. Kavanaugh came out of the gate lying about what he knew about the rampant sexual harassment conducted by his friend and mentor, Alex Kozinski. Kavanaugh claimed that he knew nothing about Kozinski’s behavior, and was as “shocked” as anybody when his behavior was revealed. Sponsored Mid-Level Litigation Associate Needed In Richmond, Virginia Litigation associate with two (2) to five (5) years of large law firm experience sought by firm in Richmond, Virginia. That was a lie. That is a lie that is still not being talked about, or investigated by the FBI. I wrote about the sheer ridiculousness of Kavanaugh’s lies about Kozinski, the morning after he was nominated. That post got dragged in conservative and alt-right press. I was accused of trying to impugn “guilt by association” and sully Kavanaugh’s “sterling reputation,” for ideological reasons. In fact, EVERYBODY should have been asking those questions as soon as Kavanaugh was announced, because ANYBODY paying attention to the Alex Kozinski scandal knew that Kavanaugh was simply not being truthful about what he knew and when he knew it. Kozinski — and we have seen this with many men in the #MeToo era — made a lot of people complicit in his harassment. His harassment of women was an open secret. He disseminated his “Easy Rider Gag List” to a wide array of powerful people: former clerks, judicial friends, and journalists. (Not me, I should add, and if I seem righteous about this point, it’s because I am.) The journalists were the deepest cut, because by roping them into his game, Kozinski all but ensured that people would be cautious about how they reported on his perversions. I know that Brett Kavanaugh knew about Alex Kozinski, because nearly everybody knew about Alex Kozinski. I know that the press didn’t want to press Kavanaugh on Kozinski, because to do so would have required them to press themselves on what they knew, versus what they reported, and why. Alex Kozinski is the canary in the coal mine for all of Kavanaugh’s untruths about his past, and the elite crew that protected Kavanaugh has still not dealt with their own complicity in letting Kozinski get away with it for so long. As we got into the Kavanaugh confirmation hearings, Kavanaugh continued to lie. The man was revealed to have given false or misleading testimony to Congress in 2004 and 2006. Game over? Hardly. Again, the some of the same people who now say that Kavanaugh’s consistent lying about his drinking is kind of a big deal, didn’t think Kavanaugh’s lying to Congress was that big of a deal. The partisan hard-on they got from being so close to having enough votes to overturn Roe v. Wade must have short-circuited their ability to demand accurate testimony in front of Congress before gifting Kavanaugh a lifetime appointment. Instead of seriously wrestling with Kavanaugh’s lies, these people tried to muddy the waters by holding Kavanaugh to the legal standard of criminal perjury. All of this CRAP about how Kavanaugh can be on the Supreme Court if he could not be convicted of sexual assault based on a 36-year-old incident is being led by people who cut their teeth by telling you that a Supreme Court nominee can lie and mislead Congress so long as it does not rise to the level of criminal perjury. As Mark Ruffalo might say: THEY KNEW! All these people knew Kavanaugh was lying about Alex Kozinski, and lied to Congress, and they still defended his… judicial character. Until Dr. Christine Blasey Ford came forward. It should not have been necessary for a woman to relive the most painful moment of her life for the “Kavanaugh is a good guy” people to stop their gaslighting of America. Dr. Ford should not have been required to be retraumatized by the President of the United States in order for these people to notice they were backing the wrong horse. Dr. Ford should not have had to lay herself down on the tracks to make the Kavanaugh character defenders hit a speed bump. Even her sacrifice might not be enough, and alone it might not have been enough for Ben Wittes. Here’s what he wrote: The allegations against [Kavanaugh] shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether. Get the hell out of my face with that. Kavanaugh’s behavior at his hearing was, indeed, horrifying. But we are NOT going to lose sight of the fact that the man has been accused of trying to rape a 15-year-old girl. MOST MEN DON’T DO THAT! MOST MEN ARE NEVER ACCUSED OF DOING THAT! Part of the mansplaining around Kavanaugh — and this isn’t just happening on the right, and it isn’t just being pushed by the sexual predator-in-chief — is that women could accuse men of anything unless men are presumptively believed. The statistics simply do not back up such male-dominated assertions. It’s estimated that only 2 percent of rape claims are false. If you had 100 Brett Kavanaughs, 98 of them sexually assaulted Christine Blasey Ford. We literally EXECUTE people on death row who have a statistically better chance of being innocent than Brett Kavanaugh does. This narrative that men must “live in fear” of being falsely accused of sexual assaults that they did not commit is total horses**t. And I say that as a black man. A black man who makes his living in public. I cannot buy a white woman a damn drink without risking some measure of my personal safety. White women can literally get me killed. And yet, when presented with a credible woman with nothing to gain by coming forward, a woman who told her husband and her therapist and her Congresswoman of her trauma before Brett Kavanaugh was even up for promotion, it’s really not hard for me to believe her. Believing Christine Blasey Ford requires you to disbelieve Brett Kavanaugh. She wasn’t assaulted by Brett Kavanaugh’s evil freaking twin. Kavanaugh’s presentation of his defense, riddled as it is with lies, should make you horrified that you needed Christine Blasey Ford to sacrifice herself to make you see this liar plain. The system failed to stop Kavanaugh before he got to this point. For a lot of men, and Republican women, actually just believing Christine Blasey Ford is still a bridge too far. So people are going to Kavanaugh’s temperament. Like all of the red flags about Kavanaugh’s character, Kavanaugh’s temperament has been on display since the beginning, it’s just that his phalanx of defenders have refused to acknowledge what was in front of their faces. Here’s Wittes again: The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for the Washington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations and post–September 11 legal matters. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The Brett Kavanaugh who showed up for his hearing was exactly the same Brett Kavanaugh who worked on the Starr investigation. If any of these elites could tell the truth about the Starr investigation, they’d have realized that nominating a veteran of that sordid affair was nominating a hyper-partisan who would not be an impartial jurist. Even if you were willing to overlook that obvious black mark on Kavanaugh’s record, anybody seriously interested in whether Brett Kavanaugh had the impartiality required of Supreme Court Justice would have DEMANDED to see all of the documents from Kavanaugh’s time serving in Bush’s White House. What few have been released have already shown him as a partisan hack, which makes one wonder about what documents are still even now being held in secret by Republicans. Wittes was actually even on some of the documents that have been released. He probably knows as well as anybody that Kavanaugh was committed to Republican policies first, impartial judicial review second, but still he runs with this “I have never even caught a glimpse” line. If Wittes honestly never caught a “glimpse” of the partisan Kavanaugh, then he was being willfully blind and ignorant. Everything wrong with Kavanaugh now was wrong with him two months ago. Nearly everything we know about Kavanaugh now, could have been known two months ago. It WAS known two months ago, by those who were paying attention. Why did Kavanaugh even get this far before Wittes and others jumped ship? Wittes tells you: I have no hostility to or particular fear of conservative jurisprudence. I have a long relationship with Kavanaugh, and I have always liked him. Those two sentences explain everything: * “I have no hostility to or particular fear of conservative jurisprudence.” In response to the near constant attacks on our national norms of decorum brought on by the Trump administration, conservatives have adopted a belief in the “hysterical left.” Conservatives cannot actually defend Donald Trump, or the literal Nazis who support him, so instead they attack those who react to Donald Trump. “Trump Derangement Syndrome,” they call it. It’s supposed to make the people who fight Donald Trump feel “radical” and the people who pick and choose which levels of white supremacy and predatory misogyny they are okay with as “rational.” Wittes is no Trump fan, but he does not “fear” conservative jurisprudence, because “fearing” something is irrational to him and the people he likes. I do fear conservative jurisprudence, because I’m not a straight white man. Conservative jurisprudence is a direct threat to me and most of my friends. But because people like me fear conservative jurisprudence, people who should have known better discounted our concerns about Kavanaugh’s character as “mere” ideological butthurt.<doc-sep>
Despite all of that, if I were a senator, I would vote against Kavanaugh’s confirmation. I would do it both because of Ford’s testimony and because of Kavanaugh’s. For reasons I will describe, I find her account more believable than his. I would also do it because whatever the truth of what happened in the summer of 1982, Thursday’s hearing left Kavanaugh nonviable as a justice. Further reading: The most striking thing about Trump’s mockery of Christine Blasey Ford A few days before the hearing, I detailed on this site the advice I would give to Kavanaugh if he asked me. He should, I argued, withdraw from consideration for elevation unless able to defend himself to a high degree of factual certainty without attacking Ford. He should remain a nominee, I argued, only if his defense would be sufficiently convincing that it would meet what we might term the “no asterisks” standard—that is, that it would plausibly convince even people who vociferously disagree with his jurisprudential views that he could serve credibly as a justice. His defense needed to make it possible for a reasonable pro-choice woman to find it a legitimate and acceptable prospect, if not an attractive or appealing one, that he might sit on a case reconsidering Roe v. Wade. Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary. Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a “good judge [as] an umpire—a neutral and impartial arbiter who favors no litigant or policy.” That Brett Kavanaugh reminded us that “the Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.” Further reading: The problem with #BelieveSurvivors A very different Brett Kavanaugh showed up to Thursday’s hearing. This one accused the Democratic members of the committee of a “grotesque and coordinated character assassination,” saying that they had “replaced advice and consent with search and destroy.” After rightly criticizing “the behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,” this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in: When I did at least okay enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed. Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits. When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes. And then—and then as no doubt was expected, if not planned—came a long series of false last-minute smears designed to scare me and drive me out of the process before any hearing occurred. He went on: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”