This is one of deep State radios “Briefs and Debriefs.”
David Rothkopf: Hi, this is David Rothkopf. Welcome to another one of the deep State radios “briefs and debriefs” in which we explore an issue in the news and get into a little bit more depth with one of our experts. Today, we’re lucky to have one of the friends of deep State Radio here, Katie Fang who is an attorney and who has been a prosecutor. Katie, I assume you’ve been watching the Kavanaugh hearings today. Is that a correct assumption to make?
Katie Phang: Yeah me and myself and sounds like most of America’s been tuning in is kind of hard to miss that right?
David Rothkopf: I kind of hope they were tuning in frankly. The morning was quite inspiring, and the afternoon has been shocking in some ways but rather than my offering my take what’s your what’s your take on it? We’re doing this sort of late in the afternoon, so we haven’t quite finished the testimony of Kavanaugh, so I want to put it in perspective for people but up until now what’s your perspective?
Katie Phang: Well, you know, I don’t know David if we need to even continue to keep on hearing from Brett Kavanaugh. I think that he’s pretty much made his position on this perfectly clear. I’m stunned. As a practicing lawyer who also routinely appears in federal court, I would never have expected to see that level of just kind of visceral anger from a sitting United States Appellate Court Judge, right? Definitely not something I would expect to see. I will begrudge Brett Kavanaugh that he is in perhaps what he seems to think is a professional and personal fight for his life and his career, right? But I just was stunned because it wasn’t something that I expected to see from him and what the problematic now is the Republican Senate Judiciary Committee members have now basically stopped asking questions and wasn’t that the whole purpose of this hearing? The purpose of this hearing was to dig deeper to get more information to ask the more probing questions and they’re not asking them at all.
Once Rachel Mitchell asked some questions and almost like check the box on behalf of the GOP, the next thing we know is the only time that we’re hearing questions is when Democratic senators are questioning Brett Kavanaugh and now all we’re getting are some pretty angry soapbox speeches from the GOP.
So to the extent David that you know, there’s maybe a little bit more time left in this hearing. Yeah great, but I don’t think we’re going to get anything more Illuminating or enlightning and then it really kind of boils down to something that I’ve been asking for weeks since Dr. Ford came forward, which is where is Mark judge. Why does he get a pass? I get it. Dr. Ford has to be there. I get it Brett Kavanaugh has to be there. Where’s Mark judge? And why won’t Brett Kavanaugh answer the question when posed to him as to don’t you want Mark judge to be here to kind of clear the air and and add more evidence and transparency to this process and Brett Kavanaugh dodges the question and won’t answer it, which also kind of suggests that perhaps we’re not going to get the full, what is it the disinfectant of sunshine and light on what has really happened here, and so it’s kind of disconcerting actually, it’s very disconcerting David as a United States citizen as a woman as a mother and as a lawyer this process is just devastatingly not what it should have been and I find it hard to believe that there aren’t other completely qualified on a on a character level and on a professional level candidates for this job. It’s the highest court in the land. This should not be the process by which we achieve our next Supreme Court Justice.
David Rothkopf: Well, let me let me ask you some questions to sort of break it down into three parts, okay? First of all this morning, we had Christine Blasey Ford come out there. No one had seen her. Nobody knew anything about it. She was put into a very very tough situation. How do you think she did?
Katie Phang: I think she came across credible. I think that she had a level of sincerity that I would not have expected anything less from her in that regard. She was remarkably more composed, still emotional, but more composed than Brett Kavanaugh and and it it the way that she spoke and the way that she testified, I felt rang true and a lot of people’s minds as well as our hearts because remember David that’s the difference right? As a lawyear, we’re really counting on evidence and facts that we can you know, either see hear touch or listen to when we’re listening to cases and trying the facts of the case, especially if you’re a member of a jury. And so for Doctor Blasey Ford, this was her opportunity to tell her story and to be able to answer questions, and I think she did a great job, and I think we saw that and I don’t think that this was a huge shining moment for the GOP this morning in terms of the way that she testified. So then everybody was waiting with bated breath for Brett Kavanaugh to come in and I think like many others expected him to be calm, composed maybe firm maybe stern maybe just a little bit more impassioned than just past that point and to say I didn’t do it, very directly at but I think that the comparison now between Dr. Ford this morning and Brett Kavanaugh is just startling. I mean, it’s almost like they’re at different ends of the spectrum and I think that that’s going to be a problem for Brett Kavanaugh, but ultimately, I don’t think it’s I don’t think Dr. Ford’s testimony this morning is necessarily going to move the needle for the senate Republicans.
David Rothkopf: So let me ask you a couple questions about the Kavanaugh side of the hearing. One that struck me, and I’m interested in your perspective was that his statement which went on and on was, at one point extremely political even threateningly political and he brought up the Clintons and he said what goes around comes around and and you know, it struck me that regardless of what the subject of this conversation is, it’s about whether somebody can serve as an impartial Justice on the Supreme Court. And he revealed himself in this statement to be incredibly partisan. Now, you know I that was just me though, and maybe this is inevitable and I just want to know what your take is.
Katie Phang: Well, I hate the word inevitable it kind of means like this whole thing doesn’t really have a purpose and does it and it’s really kind of underscores how politicized it’s whole process has become. I mean this the process to appoint a Supreme Court Justice, if I can digress for a second before answering your question David, it should never be a political process. I get that whoever’s a sitting president gets to have the the pleasure of the nomination, you know, but I mean this whole process it should be as nonpartisan and as it can be, which is why when you do get somebody who says that this was a quote calculated and orchestrated political hit to exact revenge on behalf of the Clintons, I mean really was that a necessary component to be able to defend his honor today. I don’t think so. In fact, I know it was not and so now if you are going to be a litigant if you’re going to be a lawyer representing a litigant, don’t you have a fear now that if you bring some type of case before either Judge Kavanaugh if he remains on the Appellate Court bench or Justice Kavanaugh, if he ends up getting appointed to the Supreme Court of the United States, you have a legitimate fear that there’s going to be an already biased and partisan mind made up by Brett Kavanaugh and that’s not how the legal system is supposed to work.
That is a complete perversion of our judicial system to think that the deck is already stacked against you because a sitting judge who supposed to be a fair and impartial Arbiter of the law has already predetermined the outcome of your case because you may not share his political views. That is wrong. And so his his drama today. I get it. He’s defending himself. He’s got a wife and two young daughters. I get it. He’s being attacked but you know what? It’s just exceptionally unprofessional for a sitting judge, a federal judge, especially to show that level of impartiality on national television.
David Rothkopf: So one other I mean, there’s been a lot of drama here, but some of it has been Kabuki theater, right?
Katie Phang: Sure.
David Rothkopf: Yes, and one component of the Kabuki theater has centered on the Republican complaints that the Kavanaugh that the Revelation about Dr. Ford was dropped in at the last minute because you have to ask question the last minute of what who said it was the last minute why couldn’t this process go on longer they determined that it was the last minute because they wanted to rush through the process. But the other component which relates to that has to do with Kavanaugh demanding to clear his name, um, but then when confronted by Senator Durbin directly with the option of saying an FBI interview will help clear my name. I understand as a judge that having an objective investigation in which the people who are question do so under oath and under penalties of the law if they lie that that that would help clear his name. And and when he said do you want that, Kavanaugh sat there stone-faced he just simply couldn’t open his mouth and say yes and part of the Kabuki theater, sorry, but just to put it into perspective is he, you know earlier had said well I do whatever the committee wants. Well the notion that somehow Kavanaugh the White House and the committee have not determined that they don’t want an FBI investigation is ludicrous, as it not.
Katie Phang: Well, yeah because as a judge, you have to be a lawyer. As a lawyer, especially somebody of Brett Kavanaugh ilk and you know, he’s a Yale, and listen, I was and I was a Yale undergrad and as an anecdotal note, I’ll tell you there was a lot of drinking at Yale when I was there. So he’s a double Yaley. Yale undergrad, Yale law and when he graduated he is a lawyer and he got on the bench and you know, he’s he knows what is important for people to know in a case and that is evidence that is facts that is you know, third parties charged with the duty and the mission to investigate allegations because how much better would this have turnout for Brett Kavanaugh if the FBI went spoke to all these people got the statements and then was able to make a presentation. You know, I don’t disagree. Hello. Yes. It’s not the FBI who’s going to say you are guilty of a crime. The FBI doesn’t say that. The FBI collects the evidence and then they present it to a prosecuting agency, let’s say if this was a criminal investigation and then it’s up to the prosecuting agency to decide what charges are best to pursue. In this whole arena, which I’ve always emphasized for weeks now this is not a going to be a trial. Nobody is on trial right now. So side note using a prosecutor like Rachel Mitchell whether you thought she did a bang-up job today or not, I thought really kind of set the tone for what was going to happen today, but you know you want to be armed with all of the available facts and the evidence and so for Kavanaugh to sit there and say quote I welcome any investigation, well, then he should himself demand that they put the brakes on this, let people and witnesses and facts be explored and investigated by a third-party law enforcement agency and then let them revert back with the facts and the evidence and they let other people have a comfort level on what has occurred because you and I both know David, that this confirmation vote’s going to be shoved down the rammed down people’s throats tomorrow morning. That’s what’s going to happen.
David Rothkopf: Well, no, I think it is and and the Republicans are hardening on this as the day goes by. I think their anger is to some degree a manifestation of the fact that Christine Blasey Ford was so good. One of the central issues and another one of the bits of strange Kabuki theater in this although there’s a huge number of inconsistencies is that she put somebody else in the room for this criminal act and that’s Mark Judge. And interestingly enough, you know, one of the key elements of keeping the FBI out is not to have Mark judge interviewed by them or not to have him appear as a witness because they’re afraid of what he’s going to say if under the pressure of real scrutiny. But interestingly when asked about Judge, Kavanaugh said well, look he gave a statement saying he didn’t recall this so that futes all of your assertions, I think misunderstanding what the word refutes means and then later on when asked about his book, I don’t believe his book. He’s a drunk.
Katie Phang: You know and that dialogue that happened about Mark and here’s the thing that’s coming across which I find to be just so odd. Brett Kavanaugh is like carrying the flag in the defense of Mark judge and and almost like insinuating if not directly at accusing the fact that people want to hear from Mark judge, especially in a controlled environment, like I don’t know a Senate Judiciary Committee hearing so, you know, the fact that Kavanaugh is like how dare you attack a man who has suffered from alcoholism and has medical conditions. Oh, I’m sorry. I didn’t realize that that in and of itself disqualifies him as a witness who could testify under penalty of perjury as to what happened that night. There is no civil or criminal case that that I have dealt with as a lawyer, where in if there was another eyewitness or exceptionally like pivotally relevant witness to an event to either a civil claim or to a criminal case, there is no way in hell you would not get to that person call them as a witness, subpoena them, force them to appear rid of bodily attachment to make them show up. I don’t care what it took you would get them. And the fact that we are not hearing from Mark judge the fact that there’s a level of protection for a man who’s holed up now in Delaware or whatever the hell he is, is absurd And this is a total perversion of the process now, we’re all sitting here dancing around Mark judge. He’s become like the iconic figure of the Brett Kavanaugh confirmation hearings and nobody is ever going to hear for him other than saying in a letter through his lawyer, I don’t recall? That’s just not sufficient.
David Rothkopf: Right. It’s kind of like the bizarre twisted institutionalization of the bro code, you know, and there was this bro and they were in a room and they’re going to go and protect each other and they’re actually setting up this massive apparatus that involves the President, the Senate and keeping the FBI out and all of this to keep him away.
But you know, there’s also built into that a certain degree of entitlement. We went to private school. We behaved like jerks, you know, we’re entitled to get through this and same, same is true, you’ll forgive the expression with what happened at Yale. One of the reasons we call these “Briefs and Debriefs” is because they’re supposed to be brief.
So let me ask you one, one more quick question, and that is about the long-term implications of this. The only person this afternoon who sounded more unhinged than Kavanaugh was Lindsey Graham.
Katie Phang: (laughing), Graham, yeah
David Rothkopf: The top of his head exploded it blew off. You know, he went completely nuts said this is the worst moment in the history of the Senate blah blah blah blah and this was a you know horrible moment and things will be, you know, never be the same and so on. You know, all I can think of is Merrick Garland. Do you remember the four-hundred days that you didn’t approve him and how you manipulated the process then? But, but as you look forward and you sort of have the context of what happened with Merrick Garland and what has happened here, what do you foresee for this process in the future?
Katie Phang: Yeah I see sadly that when somebody like Brett Kavanaugh gets appointed to the highest court of our land that, it’s really just depressing because, not because you know, it’s a process has become a depressing process because now it’s going to be almost irrelevant, you know what the qualities are or the qualifications are of the nominee. I mean listen David last year the whole nuclear option being invoked and us getting to this point. Listen, I’ve made the argument and you know and I’ll stand by the proposition that maybe that filibuster shouldn’t have happened on somebody like Gorsuch right? Maybe it should not have been quote wasted and all this other stuff, but you know, it really shouldn’t be at this point for an appointment to such a court.
I mean, this is The Supreme Court. Lifetime appointments. People at his age as in Kavanaugh’s age, these are people these are people who are going to be making the decisions that are going to materially affect all of us in the United States. And so the future of appointments has now going to be what Lindsey Graham losing his mind on national television and screaming and doing by the way zero fact-finding. The purpose of today’s confirmation hearing was to fact find and get information from Dr. Ford and Brett Kavanaugh, and as we circle back to my first comment at the beginning of this talk with you the GOP just kind of stopped, right? They just kind of said look we don’t need to ask you any more questions Judge Kavanaugh because we already know what we know. Well, doesn’t that tell you everything you need to know about what’s happening to this process and where the process is going to go? And so it’s depressing. It really is. Depressing as a United States citizen as a mother of a daughter and as a lawyer, this is one of the most depressing things I’ve seen in a long time.
David Rothkopf: Well, thank you for putting it into perspective. We hope you’ll come back on to Deep State Radio out of the podcast again, and frequently, you’re terrific. We love the commentary that you do on TV also, and we’ll let you go back to watching the remainder of the hearings and talk to you sometime soon. Thank you very much Katie.
Katie Phang: Thanks, David.
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