Watching last Thursday’s Judge Brett Kavanaugh confirmation hearing was dispiriting, both as a citizen and as a teacher (and continual student) of the art of advocacy and persuasion. We saw the obvious trauma suffered by professor Christine Blasey Ford; the inability of many senators to accept that sexual assault victims may delay disclosure but be truthful and accurate; and the posturing of senators on both sides who were focused on making speeches in their allotted five minutes.
But the hearing also showed a missed opportunity by Democrats to use the tools of trial advocacy to make points and influence those truly in need of convincing—the few senators whose votes were in play (and, to some extent, the many Americans still on the fence). Because, unless the Democrats were surrendering in the battle (the challenge to the Kavanaugh nomination) and looking to win a broader war of public opinion, they failed.
Let me elaborate. When arguing to the U.S. Supreme Court (up until now), the advocate would target the swing vote, usually Justice Anthony Kennedy. The first task here, whether the hearing was a “trial” or a “job interview,” was to select the swing senators, those who were on the fence, and design a strategy to gain their votes.
The next task was to design questions that would work. “Gotcha” questions about whether there should be an investigation, which were speech-making masquerading as interrogation, don’t work (at least not for the swing audience). Nor do open-ended inquiries such as Sen. Amy Klobuchar’s about whether the Judge had ever drunk so much that he “couldn’t remember what happened or part of what happened the night before.” Why? Such a question is useless after Kavanaugh’s earlier and repeated denial of the same unless the senator had compelling proof to the contrary. Instead, if the intent was to create a picture of how much the Judge drank and the possibility of blackouts, the deposition technique of drilling down was the method to deploy. What could have been asked about drinking?
- I need to ask about alcohol. You’ve said that sometimes you drank more than you should have. That’s a general term.
- On average, how many beers would you drink when partying on an evening?
- And what was the largest number of beers you drank on an evening or night back when you were 17 or 18?
Overall, while the judge’s responses sometimes invited skepticism, most questions let the speaker pitch his own story.
What should have been deployed to swing the swing senators? The basic skills of trial advocacy—asking one-fact questions; leading questions; and questions to which the answers are known or to which the answer either agrees with the questioner’s goal or sounds absurd and indefensible. The failure to use these tools became a failure to make Kavanaugh a witness against himself, or at least a witness accepting the theories and moral principles the Democrats espouse.
Here are the questions that could (and should) have been asked:
- Judge Kavanaugh, if a candidate for the U.S. Supreme Court had sexually abused another person and then persisted in denying it, do you agree that such conduct may fairly be considered by the Senate in its advise and consent role?
- Judge Kavanaugh, Sen. John Cornyn posited, and you agreed, that “You have been accused of a crime and that a fair process … means that the people who make an accusation have to come forward with some evidence … there needs to be some corroboration.” You know that is not the law. In other words, the testimony of one witness that a crime happened, if believed, is enough to convict beyond a reasonable doubt. Correct?
- Let’s talk about the accusation here. You agree, don’t you, that people who have served in the war sometimes need years or decades before they can talk about what happened, correct?
- We don’t view them as liars when they finally talk about what they endured, right?
- And you get it, that the same can be true of victims of sexual assault?
- And they might need years or even more to be able to talk about the trauma, right?
- So delay alone is no reason to disbelieve a sexual assault survivor, correct?
- Here, the claim has two parts—that there was an assault and that you were involved.
- You have no reason to question that Prof. Ford was the victim of some sexual assault or abuse, correct?
- You had no animosity toward Prof. Ford as a teenager, right?
- No run-ins, no group-versus-group problems, right?
- As best as you know she had no reason, from back then, to have any animosity toward you?
- Judge, you can’t tell us a reason from back then that would explain why, of all the people you both grew up near, you were the person named. Correct?
Asked this way, there is no answer Kavanaugh could give that would do anything except validate the accusations against him. Reading them now shows, as well, why his denials are suspect. This is what the advocates in the Senate should have considered asking. And that is why the study of advocacy and persuasion is critical, as the skills learned are transferrable to numerous contexts, including Supreme Court confirmation hearings.
Jules Epstein is a professor of law and director of advocacy programs at Temple University’s Beasley School of Law. He is a former partner at Philadelphia criminal defense and civil rights firm Kairys, Rudovsky, Messing & Feinberg, where he remains of counsel. Epstein teaches criminal law and evidence courses at the university.