Observations from the Kavanaugh hearings.

1. I'm watching the Senate Judiciary Committee hearings on the nomination today, now that they've moved beyond the introductory orations, and I'll make some notes here, using a numbered list, updated throughout the day. I'm using a DVR, so I'm behind real time, and the updates will come as I get to things in my recording, but just as the people in the gallery are — under Senator Grassley's rule — free to shout out whatever they want at any time, you can talk about what you like in the comments. I mean, you can talk about anything in the hearings. The people in Grassley's domain might be yelling about anything. I can't make out the words. I've tried. Was someone shouting "Death is death"? I don't know!

2. Grassley, the Committee chair, seems to have made a decision — in consultation with whom, I don't know — to allow the protests to interrupt the Senators and the nominee willy nilly. Grassley is  not terribly articulate, but he mumbled something about "free speech" and the ability of 300 million Americans to make our own judgment. I interpreted this to mean that he (presumably in consultation with others) has decided that the disruption hurts the anti-Kavanaugh side. Kavanaugh either actively agrees or understands the game, and he's showing patience and fortitude and an ability to maintain focus as he gets right back, in the same calm voice, to whatever point he was in the middle of making. The protesters probably think they represent society's victims, but they sound like nothing but noise, and they're making the serene and diligent Kavanaugh seem like the victim of crude disrespect.

3. Kavanaugh has a little booklet-sized copy of the Constitution, and he's got the effective stage business of holding it up when he says "Constitution." We can see how small it is. It does not partake of the prolixity of a legal code, we constitutional scholars know very well. So he demonstrates his dedication to the document, but also — for those who can see it — demonstrates that everything he contends is in there can't possibly be there except as a high level abstraction, leaving the specific details for most things to be discovered elsewhere. Attesting to his dedication to precedent, Kavanaugh held up the Constitution and said it's rooted in Article III, where the words are "judicial power." The judge still must figure out what the judicial power is, and Kavanaugh was soon enough off onto what's in Federalist 78, but why Federal 78 and not something else? He has his favorite sources, and those sources require interpretation too. Once you find the judges are required to follow precedent, you still have to figure out how far. Kavanaugh keeps bringing up Brown v. Board of Education, but not in the context of precedent, and Brown v. Board of Education went against precedent. This is all first-week-of-Conlaw1 stuff, and of course, Kavanaugh knows it. He's got to simplify to talk to the Senators and to the American people, and it's sophisticated not to get too sophisticated.

4. Kavanaugh says that in all of the roles he undertakes, he looks at how the people who have gone before him have done their work. As a judge he is following the case law, and now, as he sits before this committee, he's following what he calls the "nominee precedent." He's read the old transcripts of hearings, and he's using the precedent, notably the precedent of the very influential Ruth Bader Ginsburg performance of the nominee role. What does it mean to "follow" those who have gone before? Obviously, he follows them in the literal sense of chronology. But he's not bound to do the same. Presumably, he'll use what works well and avoid what he can see with hindsight does not. Maybe someone will ask him if his adherence to judicial precedent is analogous. In "nominee precedent," you're following Ginsburg and not Bork. Aren't you picking and choosing, based on what's pragmatic? There's no authority that binds. Bork's Senate performance is like Plessy v. Ferguson. It's bad. You're using your human judgment and power to see that it's bad, and that's how you follow it.

5. One reason Kavanaugh, like Ginsburg, won't talk about how he will decide cases is that he puts great value on judicial independence. He wants litigants coming before him to feel that he has an open mind, and that the one with the better legal argument wins. If he'd talked about the subject to the Judiciary Committee, he'd feel morally bound to the Senators, and then he wouldn't be a proper judge, but a "delegate of the Judiciary Committee." Saying that, he was implicitly telling the Senators that they are violating the Constitution if they try to nail him down about anything.

6. This only gets me to the end of Grassley's questioning (and he reserved some of his time). You see why I can't really live-blog this thing or even delay-blog it completely. There's too much. Not sure how much of this I can do. Feel free to encourage me.

7. Dianne Feinstein endeavored to be gracious, but her patience wore thin as K consumed her time with his spelled-out explanations of specific cases and the rigors of judicial methodology. I was about to compliment her on refraining from interrupting when she interrupted him. She'd say, "Sorry to interrupt, but..." Once he kept speaking a little and then said, "Sorry to interrupt" — that is, apologizing for interrupting her interruption. K expressed empathy with DF's concerns. He was super-nice to her, and as things progressed, what I read in her face was pain — pain over wanting him to feel pain. But he's so heavily swaddled in judicial values that he's safe from everything. As a judge, he does what he must do as a judge, even when it pains him. He's pre-pained, inoculated to pain, and there's no way to further pain him. The children who die in school shootings... the women who would die from illegal abortions... these causes for empathy receive his empathy, but they do not change what he must do. His cold, dry judicial virtue is supreme and sublime, and he must, as ever, humbly submit. Feinstein was reduced to scoffing that K had learned (from Senators?) to "filibuster."

8. Orrin Hatch. Maybe I should skip the Republicans. It's not as though they're giving me a breather.

9. Patrick Leahy. The gravelly-voiced Senator — who I'm surprised to see is only 78 — laid an elaborate trap that hyper-focused on some typo-ridden email that a fellow named Miranda had stolen from him. The idea seemed to be that Kavanaugh knew about this terrible theft (which I think may have upset Leahy not so much because it was "stolen" as because it was so embarrassingly badly written). It was was only a draft as anyone could see, so anyone would know it was stolen, stolen... Or something like that. Miranda was a mole, a mole, I tell you!! I think this is video of Leahy...



Kavanaugh kept his cool, but he needed to see the email under discussion, so we had a minute of watching Kavanaugh read. Then Kavanaugh asked Leahy to tell him where to look to see what he was talking about, and Leahy, facing the requirement that he too read on camera, and quite apparently not up to the task, said he'd move on to some other question. So much for the trap. Leahy proceeded to some other document-heavy trap that didn't work, and he tried to blame Grassley for keeping something confidential and — with the 85-year-old Feinstein sitting between them — the 84-year-old Grassley went ballistic on Leahy. Zero progress was made against Kavanaugh, and I think Kavanaugh had to suppress laughter. Here at Meadhouse, we frequently paused and laughed and were all Ahh, but the strawberries that's... that's where I had them. They laughed at me and made jokes but I proved beyond the shadow of a doubt and with... geometric logic...

10. From my handwritten notes, quoting Dick Durbin: "The things I did were unimaginable." He was referring to his work in a slaughterhouse, after getting Kavanaugh to say that the "dirtiest job" Kavanaugh ever had was construction work (or maybe mowing lawns). I wonder what exactly Dick Durbin did in the slaughterhouse, but it was a set-up to excoriate Kavanaugh for going out of his way to decide a case against some workers in a slaughterhouse. It reminded me of the Gorsuch hearings, the way the Democratic Senators got pretty far along toward proving Gorsuch didn't care if a man froze to death. GOP nominees lack empathy. They don't know the suffering in the real world. That's the theme.

11. Senator Whitehouse had some good material, but he was too disorganized and self-indulgent to make it work. A hardworking, on-task, on-the-ball Senator might have built the argument deftly, but Whitehouse was not the man for the job. The idea was something about the role of the Federalist Society in getting judges (including Kavanaugh) nominated, the participation of right-wing groups in bringing cases and filing amicus briefs, and the success of corporations in winning 5-4 Supreme Court cases (where the 5 Justices in the majority were appointed by Republican Presidents). Whitehouse kept reminiscing about his own cases — back in the day when he was a lawyer — and musing generally about various suspicions that have crossed his mind and it's just not good if people think the Court is political. Of course, Kavanaugh coasted through all of this, repeating the standard message that he's dedicated to judicial independence and deciding cases according to the law.

12. Not long after that I got tired. The channel I was watching (Fox News) turned away to cover President Trump and someone from Kuwait — a great country with a lot of great people many of whom Trump has known for a long time. It was refreshing to hear Trump talk after all that Senatorial smeech. The reporters were yelling questions at Trump, and Trump was rattling out answers. Woodward's book is "fiction." Canada will come to a trade agreement. Three million innocent people are surrounded in Syria and Trump is watching, so the Syrian military had better be careful. After that it was hard to settle in to Mike Lee walking Kavanaugh through the Quirin case. It has rained all day, and it was getting dark. What a crazy slog! It's absurd to expect the nominee to be up for this grilling for 8 hours with scarcely a rest. But it was kind of hard on me too. And it's almost 7 o'clock. The "Team of 9" we're thinking of here is not the Supreme Court, but the Milwaukee Brewers. It's the 3rd game of the series with the Chicago Cubs, and we've won the first 2. What an amusing game last night, no? I love when runs are scored in all sorts of weird ways. What was it — 8 runs in a row scored on plays that were not hits?

13. So that's it for me on the Kavanaugh hearings today.

14. It was the emir of Kuwait. Here's video:



15. Here's the video of the Kavanaugh hearing today, including the part that is still happening as I write this (at 7:17 PM Central Time). How brutal! I do wish I'd jumped ahead to see the more junior Senators. I'm especially interested in the 3 who might be running for President (Klobuchar, Booker, and Harris). I'll probably get to these tomorrow.

"In 1930s Kuwait, an accusation that a restaurant was serving cat meat might easily have ended badly for the owner."

"But in one case British diplomats decided it was a matter for the Crown - and rode to the rescue of the unlucky man...."

"I hit the stage, not knowing what I would say first till the second i put the mike to my face."

"I looked at them all and said 'how are you fuckers doing?' The place went bezerk and it became instantly plain to me what they needed and wanted and what I needed to do. 'You people are in a very fucked up place. I mean, it's Kuwait, the dessert and right over there is a starbucks. I saw the sign and thought it would be a little tent with coffe, but it's a real starbucks! With the jazz music, the chess tables and the faggot with the laptop.' They couldn't believe it. the laughs were enormous. I was filthy. It was awesome. People were going crazy. It was like looking out over choppy water. People rocking back and forth, punching each other, clapping, stamping. It was mayhem. Every time I went way over the line I would say 'I'm so sorry. I am not supposed to be saying any of this. I"m so sorry. Am I in trouble?' which would only make them laugh more. The sargent major was in the front row, arms folded, surrounded by Colonels and whatnot. None of them laughing. All aroudn them were young warriors, men and women of all ages, laughing and cheering at things that NONE of them could think about saying on this base, EVER."

Louis C.K. on a Middle East USO trip. Much more, including photos and video, at the link. Via Metafilter.

TNR versus Weekly Standard.

TNR checks up on its Baghdad Diarist, Scott Thomas Beauchamp:

In the first [of three anecdotes], Beauchamp recounted how he and a fellow soldier mocked a disfigured woman seated near them in a dining hall. Three soldiers with whom TNR has spoken have said they repeatedly saw the same facially disfigured woman. One was the soldier specifically mentioned in the Diarist. He told us: "We were really poking fun at her; it was just me and Scott, the day that I made that comment. We were pretty loud. She was sitting at the table behind me. We were at the end of the table. I believe that there were a few people a few feet to the right."

The recollections of these three soldiers differ from Beauchamp's on one significant detail (the only fact in the piece that we have determined to be inaccurate): They say the conversation occurred at Camp Buehring, in Kuwait, prior to the unit's arrival in Iraq. When presented with this important discrepancy, Beauchamp acknowledged his error. We sincerely regret this mistake.

Weekly Standard responds:

Acknowledged his error? How about confessed that he made something up? How about, misled his editors when they pressed him for corroborating details on July 17, after the piece was published? And how do we reconcile this with Foer's own statements over the past two weeks, including one to ABC News claiming corroboration of the account:

"We showed the stories to people who'd been embedded in Iraq to make sure that it all smelled good. We talked to one of the members of his unit to confirm the woman, a female contractor. We talked to a medic who'd served in Iraq to make sure that a woman could be in an FOB. We spent a lot of time with him on the phone asking hard questions."

The New Republic is correct about one thing: the detail is significant. If the incident happened in Kuwait, it eliminates their editorial rationale for publishing the piece. It means Private Beauchamp had suffered "the morally and emotionally distorting effects of war" before ever going to war.

The TNR piece ends this way:

Although we place great weight on the corroborations we have received, we wished to know more. But, late last week, the Army began its own investigation, short-circuiting our efforts. Beauchamp had his cell-phone and computer taken away and is currently unable to speak to even his family. His fellow soldiers no longer feel comfortable communicating with reporters. If further substantive information comes to light, TNR will, of course, share it with you.

So now the blame is on the government and TNR is off the hook? We did all the fact checking we could...

"We have acquired this responsibility..."

Christopher Hitchens on Iraq:

[T]he many disappointments and crimes and blunders... do not relieve us of a responsibility that is either insufficiently stressed or else passed over entirely: What is to become, in the event of a withdrawal, of the many Arab and Kurdish Iraqis who do want to live in a secular and democratic and federal country? We have acquired this responsibility not since 2003, or in the sideshow debate over prewar propaganda, but over decades of intervention in Iraq's affairs, starting with the 1968 Baathist coup endorsed by the CIA, stretching through Jimmy Carter's unforgivable permission for Saddam Hussein to invade Iran, continuing through the decades of genocide in Kurdistan and the uneasy compromise that ended the Kuwait war, and extending through 12 years of sanctions and half-measures, including the "no-fly" zones and the Iraq Liberation Act, which passed the Senate without a dissenting vote. It is not a responsibility from which we can walk away when, or if, it seems to suit us.