It’s Friday and I want to start off the mailbag today by thanking all of you for the tremendous support you have shown for my new book, “Republicans Buy Sneakers Too.” As I write this we have spent all four days this week since the book was released in the top 100 of Amazon’s bestselling books. That’s unheard of for a sports book that receives almost no promotion on CNN, MSNBC, or Fox News.
All of the sales have been you guys going out and buying copies for yourselves and others.
My publisher emailed me yesterday and said our week one sales were going to easily be enough to be on the New York Times bestseller list so it will be interesting to see if they find a way to keep us off that list because they don’t like my cover or our subject matter or if we will debut on it like we should. Regardless, I’m incredibly thankful to all of you for the support.
The book release has gone infinitely better than I could have even hoped and I had high expectations.
So please go buy it.
For the VIP members, your books will start going out today. It will take a while for me to get thousands of books signed and shipped, but just be aware they are coming and I’m moving as fast as we can there. Turns out it’s a ton of work to sign thousands of books and get them all shipped. If you want to get an autographed copy of the book, you can sign up for Outkick VIP here.
Okay, here we go with the mailbag.
The most common mailbag question we got, by far, had to do with the Kavanaugh hearings so I’m going to spend the entire mailbag on them today.
I’m also going to embed my two immediate reactions to Dr. Ford and Brett Kavanaugh’s hearings yesterday.
Here those are if you want to watch them:
I thought Judge Kavanaugh’s opening statement was one of the most powerful opening statements I’ve ever seen. And the part where he talked about his ten year old daughter praying for Dr. Ford’s family made me tear up watching live:
Judge Kavanaugh testimony reaction https://t.co/FHCJriQjUF
— Clay Travis (@ClayTravis) September 27, 2018
Dr. Ford was also a compelling witness, but I disagreed with the way the Republicans chose to cross examine her:
Live reaction to Dr. Ford testimony at Kavanaugh Supreme Court hearing. https://t.co/cprwWhbU7L
— Clay Travis (@ClayTravis) September 27, 2018
It was fascinating to watch the way the live odds ebbed and flowed during this hearing, just like it was a sporting event. After Dr. Ford spoke Kavanaugh was -200 not to confirmed, after his hearing, he was back to -600 to be confirmed. It was amazing, riveting political theater.
And the capstone was Lindsey Graham’s epic mic drop moment:
Lindsey Graham from the rafters! We may have just had our own modern day McCarthy hearings moment: https://t.co/oHVYNWP4Qv
— Clay Travis (@ClayTravis) September 27, 2018
And her’s my reaction to that moment in the hearing.
— Outkick the Coverage (@Outkick) September 28, 2018
Now for my written reactions.
First, let’s begin with the evidence here. Dr. Ford can’t tell us the date of this alleged event or even the year, month or day of this alleged event, the place the party was located, or how she got to the party or how she got home. She named four people as being at the party with her, all four people have denied being there, including her best friend from high school, another girl. In fact, that girl claims she’s not sure she ever met Brett Kavanaugh.
I thought Dr. Ford did a fine job testifying and I believe she believes Kavanaugh assaulted her, but the evidence here doesn’t add up to that conclusion at all.
In fact, if you combine all four of these alleged witness statements along with Kavanaugh’s calendars from 1982 you have a very persuasive he said, he said, he said, she said all lined up against one she said. If you were on a jury who would you believe was more accurate, the four people saying something didn’t happen or the one person who said it did? Can we really keep a man from achieving a job he’s earned based on one unfounded and unsupported allegation of high school misdeeds? If so, that’s insanity.
Dr. Ford’s supporters want to make a big deal of the fact that she passed a polygraph test, but this is nonsensical. First, because polygraphs are inherently unreliable — which is why they aren’t admissible as evidence in federal courts — and second because all a polygraph test does is tell you that the person believes what they are saying, not that it actually happened. That’s an important detail that almost no one has pointed out.
Let me explain how this could work in a different context, I believe I saw a ghost in Michigan two years ago. I wrote about it here. If I took a lie detector test, I would pass that lie detector test because I believe I saw a ghost. But passing that lie detector test wouldn’t prove ghosts exist, it would just prove I believe I saw a ghost.
This means Dr. Ford can believe Kavanaugh assaulted her, have passed a lie detector test saying this, and it can still not be true. All she is doing with the polygraph test is proving she believes what she’s saying, not that it actually happened.
I feel like that distinction is being missed completely here.
What do I think most likely happened here? I think something happened to Dr. Ford at some point during high school and she mistakenly believes it was Kavanaugh who behaved inappropriately with her. I said “behaved inappropriately” because even if we assume everything Dr. Ford says is true, and the evidence from the four witnesses she named plainly supports it isn’t true, I still don’t believe this would or should be prosecuted as sexual assault.
One of you wrote me a good email on this so I’m going to put his email into the middle of my analysis here:
“So this Kavanaugh case is fascinating to me because the allegation happened in high school. And on the surface, even if we assume it’s true, from a guy’s perspective it sounds like an awful attempt by a drunk high school kid to have sex at a party. There was a locked door (which anyone wanting privacy would do). He made some bad advances and was probably too aggressive. She did not want to have sex and after him trying too much, perhaps she started to yell so maybe he covered her mouth a bit to quiet her. Then he gathered himself and the encounter ended. Now as an adult typing this it sounds awful. But as a guy with a lot of dumb buddies throughout my life, this also sounds like a bad high school hookup attempt gone awry.
I have a friend who has worked in high school at various levels from counselor to now dean of students and she has told me horror stories of kids (boys and girls) getting accused and so many he said/she said stories from these teenagers going through puberty and each one is messy. Particularly because even these young girls know they have the power to accuse and ruin a boy they don’t like. One girl actually had a boy deported out of the country and no one is sure what happened. It’s her job to try and sort out what’s BS and not. Talk about stressful.
In a nutshell she has told me that each person must give verbal consent at every step along the way in a sexual encounter. So your video consent app is pretty much gonna happen. But my question is, without obvious consent (can I now touch your boob? Do you mind if I move onto to touch your vagina? Ok that’s great!) if two people are making out, say kissing at the moment, and one moves in for some very heavy petting and the other objects, is that how low the bar is now for sexual assault?”
During the hearing yesterday the Democrats kept describing Dr. Ford as a sexual assault survivor and I thought this was absurd for two reasons: 1. we have no idea if this actually happened at all, in fact the evidence suggests it didn’t and 2. even if it did happen exactly as she described, I’m still not sure it’s sexual assault. In fact, I think most district attorneys wouldn’t be able to prosecute this case in 1982 or 2018 for the exact reason you state, because it isn’t sexual assault.
In this allegation by Dr. Ford there was no nudity and there was no penetration. Plus, and I think this is key, she claims she only had one beer and Kavanaugh was very drunk. First, how can we believe she knows how many beers she had that night when she doesn’t remember the year this happened or how she got there or got home? Are you really telling me we can rely on her to remember that she only had one beer?
Second, even assuming the story is 100% true, as you state above, this sounds like a really awkward attempt by a sexually inexperienced high school boy to hook up with a girl. (One detail you left out of your story is that Kavanaugh and his friend were both in the room together and she says this encounter ended with both boys wrestling, which makes it sound even more awkward.) Are awkward high school hook up attempts really sexual assault? I don’t think so.
Not even in our modern #metoo era.
You also raise an incredibly interesting question, if two people consent to make out is it really sexual assault if a high school boy then tries to go to second or third base with a girl and she pushes him away? If so, every teenage boy is guilty of sexual assault, because I doubt there’s any teenage boy who hasn’t tried to move from a kiss to something more without receiving verbal consent. In fact, that’s how sex happens most of the time.
No one pauses and says, “Would it be okay if I touched your breasts now? How about your genitals?”
Furthermore, what if the girl goes for the dick first and the boy rejects it? (Let’s pretend this ever happens). Then she’s guilty of sexual assault too because she touched his dick without his permission.
That’s clearly not criminal behavior. Now, clearly, everyone should consent to sex and no should always mean no, but most of the time sexual consent is not verbal. (That’s why my app idea was such genius, it would have helped to prevent cases of he said she said by putting everyone on the record in the moment.) Everyone, at least in my experience, just about always relies on body cues during sex acts not spoken words. That’s even more the case when, as here, there is alcohol involved which dulls the senses and reduces inhibitions. The very first time a couple hooks up in high school or college there is a high percentage chance alcohol is involved.
And it’s those first time encounters that are often the most awkward.
Sexual assault is awful, but so is labeling things that aren’t sexual assault as sexual assault. It delegitimizes actual crime in favor of an amorphous and expansive range of potentially inappropriate but not criminal conduct. Remember when Matt Damon got savaged for having the audacity to say there’s a difference between rape and a girl’s ass getting grabbed without her consent?
That’s 100% correct.
Even assuming every detail alleged by Dr. Ford, I don’t believe this was a prosecutable case of sexual assault.
I also thought it was shameful the way the Democrats asserted over and over that they believed her despite the facts not supporting her allegations at all. Isn’t this scary? What we were seeing was the triumph of identity politics over facts. Many Democratic senators chose to believe this woman because they don’t like Judge Kavanaugh (or President Trump) and wanted her story to be true. There was far more evidence that Bill Clinton raped a woman than there was that Judge Kavanaugh behaved inappropriately here.
This wasn’t about truth and justice, this was about attacking a man with salacious and unproven allegations because you disagree with his politics.
Frankly, it was shameful.
Do you believe this woman would have ever come forward if Kavanaugh was a left wing liberal appointee? I don’t believe so. I believe political disagreement was at the root of everything that happened yesterday.
Ultimately I hope yesterday’s hearing represented the end of the politics of personal destruction. Surely Democratic senators reading from high school yearbook’s and a high school kid’s calendar, had to realize how ridiculous they looked, right? How do you ask a 53 year old man about his drinking in high school or college without looking pathetic? Democrat, Republican or independent, I think high school yearbook dumpster diving is beyond the pale and pathetic.
Are you really telling me that 12 years worth of work as a federal circuit court judge isn’t sufficient to examine to determine whether someone has the requisite skill to be a supreme court justice? Especially when that judge already has lifetime tenure on the bench. The craziest thing about this entire case has been Democrats being fine with Kavanaugh being one of the twenty most important federal judges in the country — remember most D.C. circuit court decisions are never reviewed by the supreme court — and having lifetime tenure there, but not okay with him being one of the nine most important judges in America and having lifetime tenure there. That seems a bit crazy to me.
There are many things I’m likely to disagree with Judge Kavanaugh on — abortion, the death penalty and gay marriage among them — but I would vote to confirm Kavanaugh to the Supreme Court regardless of our opinions being different because I believe the president has a right to select a nominee. And if that nominee has an accomplished record as a jurist then I’m going to vote for him to be confirmed even if I don’t agree with each of his decisions.
Here’s the truth: if Kavanaugh is confirmed and overturns Roe v. Wade I think that will be awful for Republicans and the wrong decision for our country. But it isn’t the end of the world. The decision of whether to legalize abortion would then return to the states. And many states would allow legal abortion and many wouldn’t. But, and this is key, abortion rates are declining rapidly because technology is making them less necessary. I think what’s likely to happen is that a robust marketplace for morning after contraception would become more popular and commonly used and the number of overall abortions in our country would continue to decline.
Roe v. Wade, honestly, is being made less relevant every day thanks to advances in contraception technology.
Even still, overturning Roe would be a bad decision for Republicans because they would lose countless elected seats over Roe v. Wade being overturned. That’s because I think the vast majority of the country considers this to be settled law and believes, even if they don’t like it, that abortion should be safe, legal and rare. What’s more, I’m not convinced that even a Republican majority would overturn this case because it has been the law of the land for for over forty years. I think there’s a very strong possibility the case would be upheld thanks to stare decisis, which is effectively a respect for precedent in settled law.
From a political perspective, the Republicans overturning Roe v. Wade would be a political gold mine for Democrats.
Now, on the other hand, I think if the Democrats managed to keep Kavanaugh from being confirmed, this would be a disaster for them too. How so? Because then the mid-term elections would become a referendum on the next supreme court justice instead of a referendum on Donald Trump. Right now there are toss up Senate elections in Florida, Missouri, Tennessee, Arizona, North Dakota, Montana, Texas, and West Virginia. The Republicans are likely to pick up some Senate seats in these states and in states like Texas and Tennessee where competitive races have developed, I think this would kill the Democrats chances of winning. I’ll use myself as an example. I am voting for Karl Dean for governor in Tennessee. He’s a Democrat, but he’s a former law school professor of mine and I know and like him. So I’m voting for him based on my personal relationship. In the Senate election, I haven’t decided how I’ll vote. But I was so disappointed in the way the Democrats behaved in that hearing yesterday, that I would 100% vote for Marsha Blackburn over Phil Bredesen if the ability to appoint a new supreme court justice was at stake in my Tennessee election.
And there have to be hundreds of thousands if not millions of more people across the country voting in competitive Senate races who would make the same decision as me. That’s not even to count the amount of Republican voters who would surge to the polls to ensure their voice was heard about the supreme court.
I think the worst thing the Democrats could do is block Kavanaugh. Because it would lead to an even stronger majority for the Republicans in the Senate. And Senators sit for six years so Democrats would be putting themselves at a substantial disadvantage until after Trump is out of office. (Remember, it takes 67 votes for a president to be removed from office. The chances of that happening are tiny absent an egregious misdeed.)
So I believe it’s bad politics for the Republican appointed majority, assuming Kavanaugh is confirmed, to overturn Roe v. Wade and for the Democrats to refuse to put Kavanaugh on the supreme court.
But make no mistake about this, the entire conflict here is a Democratic attempt to execute their own hail mary. If they can vote down Kavanaugh then Trump and the Republicans can’t get a Supreme Court justice seated by the mid-terms. Then Democrats could try to win a majority on the senate and refuse to confirm any Trump appointee for two years until the 2020 election.
This is a response to the Republican’s own hail mary by Mitch McConnell. When Antonin Scalia died, McConnell decided to make the 2016 election a referendum on who would get to pick the next supreme court justice. Amazingly, Trump pulled off the huge upset and put Gorsach on the court. This means McConnell’s hail mary was caught. Then Anthony Kennedy chose to step down to allow Trump to replace him while the Republicans had a senate majority. .
So while the Democrats are trying to turn this story by Dr. Ford into a hugely tremendous and disqualifying event, what they’re really trying to do is stall past the midterms. That’s why the Democrats waited until after the confirmation hearings, which they couldn’t blow up despite their best efforts, to suddenly bring out this claim in the first place. It’s also why they never raised this issue beforehand, they were hoping they wouldn’t have to use it.
That’s also why they are arguing for an FBI investigation, which is nonsensical. The FBI investigation, as Joe Biden said back when Clarence Thomas was being grilled over the Anita Hill incident, isn’t about making a determination into what happened, it’s about giving the senators the facts to make their own decision. Which was, you know, exactly what the public hearing was designed to do. If anything, the hearing, where senators could directly ask the nominee and his accuser whatever they wanted to ask, was actually much more effective and reliable than an FBI investigation would have been.
If I were in the senate I would vote to confirm Judge Kavanaugh. Just as I would have voted to confirm Barack Obama’s nominees for the court. I think the president, barring a truly poor decision like George W. Bush’s nomination of Harriet Myers, should have the right to have his picks confirmed.
Unfortunately, I think the precedent we have set with supreme court nominees now is this, unless the president’s party controls the senate I don’t believe it will be possible to get judges confirmed on the supreme court for years and years ahead. Which I think is bad for our country regardless of your political persuasions.
After all this serious discussion, I feel like those of you who have made it to this end of my article deserve a laugh. So I would like to apologize for everything that appears in my high school yearbooks.
Particularly this (Olan Mills!) photo.
For the record, I would like to preemptively apologize for everything in my high school yearbooks. Especially this picture. pic.twitter.com/yMiQfTaQNm
— Clay Travis (@ClayTravis) September 27, 2018