New York Daily News

Where the judge lost me

- BY ROBERT S. SMITH Smith was a judge on the New York Court of Appeals from 2004 to 2014. He now practices law.

It seems very few minds were changed by the Christine Blasey Ford-Brett Kavanaugh hearings. But mine, I’m sorry to say, was one of them. I was enthusiast­ic about the Kavanaugh appointmen­t. From everything I’ve heard and read, he’s a smart, responsibl­e, conservati­ve judge — which is what I tried to be when I was on my state’s highest court. People who have dealt with him profession­ally, including many on the left, like and respect him. If we had never heard of Ford — if the malicious idiot who leaked her name to the media had just kept his or her mouth shut — Kavanaugh would have been sworn in by now, and I would be joining the chorus of conservati­ve applause.

I watched the hearings hoping, and maybe expecting, that I could disbelieve her and believe him, but I couldn’t. Can anyone who watched Ford totally disbelieve her? Okay, her credibilit­y isn’t 100% (“fear of flying”). But with understand­able exceptions, she testified like a smart, honest woman, in the grip of strong emotion but trying hard to tell the truth. The idea that she fabricated her encounter with Kavanaugh, or imagined it, seems fantastic. And the idea that she’s thinking of another guy is totally implausibl­e. This wasn’t a stranger attack. She knew him.

That doesn’t mean she got every detail right. No one could, after all those years. And I’m not convinced he was trying to rape her, though I do believe she thought he was. The event she described — the laughter, the slapstick scene of both guys piling on the bed — sounds more like a really stupid, cruel joke. And if it was, taking into account how stupid and cruel normal teenagers, especially drunken, sexually aroused boys, can be, I don’t think it’s disqualify­ing.

But my God, at least he owes her an apology.

His testimony was awful. He has plenty of excuse for that. He and his family have been under huge stress. He probably believes he’s totally innocent. I don’t blame him for being angry — but I do blame him for letting his anger impair his judgment. He has been around the block enough to know that a witness shouldn’t rail at “the Clintons,” or ask a senator if she likes beer.

And even with the stress he was under, he should not have lost the ability to reflect on his acts. He should have admitted there is at least a possibilit­y he did something very unpleasant to Christine Blasey, whether he remembers it or not. He is rightly proud of his daughter who prayed for Ford, but he didn’t show that he had the same kind of compassion. To say she may have been assaulted “by someone” doesn’t do it.

But maybe his most infuriatin­g, and revealing, testimony wasn’t about Ford. It was about a yearbook picture of grinning football players calling themselves “Renate Alumni.” Kavanaugh said they were expressing respectful affection. Does he take us all for fools? Or is he just incapable of admitting to himself that he, like many other men, was once a swinish kid? He really needs to learn the words “I’m sorry.”

He still may be confirmed, and part of me still hopes he is. We saw him at his worst on TV; he seems to have been at his best for many years before, and he may be again for many years to come. But if I have to say what I think is right, it is to reject his nomination. Think of it as our country’s way of giving to Professor Ford the apology Judge Kavanaugh owes, but won’t give.

It seems very few minds were changed by the Ford-Kavanaugh hearings. But mine, I’m sorry to say, was one of them.

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