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An Excruciating Juxtaposition of Trauma and Cluelessness

The last day of the Kavanaugh hearings revealed the enormous gulf between the nominee’s supporters and the victims of his jurisprudence.

On Day 1 of Brett Kavanaugh’s confirmation hearings, we learned that a liberal lawyer who stands to benefit from his rulings thinks he’s a swell guy. On Day 2 and Day 3, we learned nothing about his legal views, and lots about how frustrated Democrats are that Republicans concealed his paper trail. (Their anger is warranted, but politically irrelevant.) And on Friday’s Day 4, we watched a series of people testify about Kavanaugh’s impact, concrete and hypothetical, on their lives. Their testimony fits into two buckets: “Brett Kavanaugh is nice” and “Brett Kavanaugh is going to ruin my life.”

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Because the nominee himself was not in the room for these statements—and because most senators skipped them—you might expect Friday’s session to have been less tense, awkward, and painful than the events that preceded it. Instead, it was unrelentingly excruciating. The “outside witnesses” who testified on Kavanaugh’s behalf came across as insensitive and clueless. Those who testified against the nominee shared agonizing stories that illustrated how his rulings could degrade and destroy their well-being. The result was a surreal spectacle that revealed just how oblivious Kavanaugh’s supporters are to the consequences of his jurisprudence.

Consider the stark pairing of Rochelle Garza and Louisa Garry, both of whom told stories involving Kavanaugh and children. Garza represented “Jane Doe,” an undocumented 17-year-old, as she attempted to obtain an abortion while living in a federally funded shelter. When the Trump administration prohibited Doe from terminating her pregnancy, Garza sued on her behalf, and a federal judge ruled in her favor.

Kavanaugh reversed that decision, allowing the government to force her to continue carrying her unwanted pregnancy. As Garza put it, “the pain that this caused [Doe] is impossible to describe. I saw her suffer. No politician or judge saw firsthand what she went through.” Thanks to Kavanaugh’s vote, the shelter kept Jane locked up “under constant surveillance,” unable even to leave the building for exercise. She was only allowed to get an abortion after the full court overturned Kavanaugh’s decision, spurring the judge to write a furious dissent accusing his colleagues of permitting “abortion on demand.”

When Garza finished, Garry—a teacher at Friends Academy in Locust Valley, New York—talked about how much fun she had hanging out with Kavanaugh throughout their “enduring friendship.” Garry explained that “we often talk about the benefits of youth sports in raising strong independent girls and women with confident voices.” Sometimes they have these discussions while going on runs. Also, the two “watch a lot of sports” together. On that basis, Garry urged the Senate to confirm Kavanaugh.

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Next, Elizabeth Weintraub, a senior advocate at the Association of University Centers on Disabilities, spoke against the nominee. Weintraub has cerebral palsy and an intellectual disability, and condemned Kavanaugh for writing an opinion that allowed the government to make medical decisions for mentally disabled patients without their consent. “Judge Kavanaugh’s decision did not respect people’s rights and their freedom of choice,” Weintraub said. “Self-determination is a basic human right for all people with all disability. People with intellectual disability have opinions and preferences.”

After Weintraub completed her statement, former Solicitor General Ted Olson called Kavanaugh “thoughtful, gracious, open-minded, respected by his peers,” and “widely praised by lawyers who appeared before him.” That category includes Olson, who has argued more than 60 cases before the Supreme Court and will undoubtedly argue before Kavanaugh at SCOTUS.

Alicia Baker, a “pro-life Christian and ordained minister from Indiana,” followed Olson. Baker, who did not have sex until marriage, was denied birth control coverage by her insurance company because of its “religious objections.” In 2015, Kavanaugh argued that employers could decline to provide insurance coverage for contraceptives and refuse to notify the government of its objections, forcing taxpayers to foot the bill instead. Through tears, Baker explained the humiliating real-world impact of this denial, explaining how she and her husband “scrounged together the money” they would have spent on student loans and a house to pay for her IUD. “What happens to those,” she asked, “who face an impossible choice between getting the health care they need and putting food on the table?”

Then Colleen E. Roh Sinzdak, an appellate litigator, spoke. Sinzdak explained that she took Kavanaugh’s separation of powers class at Harvard Law School and really enjoyed it.

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After a break for lunch, Parkland survivor Aalayah Eastmond took her turn at the microphone. She described in devastating detail how she saw her young friends get slaughtered in the classroom, how her classmate’s “lifeless body” shielded her from bullets, how she called her mom to say her “last goodbye,” how she wished the bullet would go through her head so she wouldn’t “endure any pain.” Eastmond noted that Kavanaugh voted to strike down a ban on assault weapons—including the AR-15 that was used to kill her friends. She pleaded with senators not to support Kavanaugh, to think about their votes “as if you had to justify and defend your choice to those who we lost to gun violence.”

And then, in a startling juxtaposition, Rebecca Taibleson—a Kavanaugh clerk who worked for the judge during the term when he wrote his pro-gun opinion—spoke in his favor. Taibleson did not respond to Eastmond. Instead, she praised Kavanaugh’s “open mind” and “foundational commitment to the belief that either side might be right.”

“Judge Kavanaugh reads and analyzes every brief and rereads every relevant precedent,” Taibleson said with a broad smile. “He insists that his clerks find the very best version of every argument in the case even when the lawyers themselves have not.”

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Then came Hunter LaChance, a Maine teenager who suffers from asthma—like a disproportionate number of Mainers, due to heavy air pollution in the state. Emissions from the rest of the country travel downwind to Maine, “the end of America’s tailpipe” as LaChance described it. Kavanaugh has written two opinions sharply limiting the federal government’s authority to regulate air pollution across state lines.

“Here is a coffee stirrer,” LaChance said, holding up a tiny straw. “Imagine only being able to breathe through this size hole for an hour, a day, or even a week. This is what it’s been like [for me] during an asthmatic attack.” He begged senators to vote against Kavanaugh to ensure that the government could protect him and other asthma patients.

If the testimony of Garza, Eastmond, and LaChance troubled the pro-Kavanaugh witnesses, they didn’t let on to it. As my colleague Dahlia Lithwick has written, Kavanaugh’s friends have every right to think he’s a lovely man, but these personal characteristics have absolutely no bearing on his judicial philosophy. On the bench, Kavanaugh will warp the law to uphold abortion bans, strike down gun restrictions, and invalidate air regulations. That is what matters, even though the nominee refused to say a word about them during the hearings. And the witnesses who testified against Kavanaugh on Friday were brave to point it out, even if their words will have no effect on Republican senators.

Melissa Murray, a professor at New York University School of Law, put it best during her brief but biting testimony. “This nomination is not about … with whom I would have lunch,” Murray said. “It is not about how Brett Kavanaugh treats a handful of women from elite institutions. It is about real people on the ground … who will not have lunch with Brett Kavanaugh.”