Cooperation and Recalcitrance: Cross-Examination and Maxim Violation in Justice Brett Kavanaugh’s Supreme Court Justice Confirmation Hearing
Introduction
Article II Section 2 Clause 2 of the United States Constitution grants the President of the United States the authority to nominate and appoint a public official to the Supreme Court upon confirmation from the Senate Judiciary Committee. Since 1925, Senators on the Judiciary Committee have asked the nominee a range of questions related to their public service and personal history. In 2018, the confirmation hearing for Judge Brett Kavanaugh was marked by an historic number of inquiries into Justice Kavanaugh’s history, with 1,278 questions being put forth. Comparatively, before Justice Kavanaugh’s confirmation hearing, only 1,247 questions in total had been asked in the history of confirmation hearings.[1] This abnormality was the result of many socio-political factors, including escalating tension between Democrats and Republicans and a global feminist movement that saw several powerful men condemned for sexual harassment and assault.
Justice Kavanaugh was accused of sexual assault by Dr. Christine Blasey Ford soon after his nomination was announced by Republican President Donald Trump. He immediately denied these claims. On September 27, 2018, Dr. Ford and Justice Kavanaugh testified separately before the Judiciary Committee and then underwent rigorous questioning. The questioning phase of the hearing greatly resembled the traditional cross-examination genre, with legal authorities questioning witnesses with the intention of ascertaining the truth. While twenty-two Senators stood in for the typical twelve jury line-up, they were also tasked with asking the witnesses questions—a role traditionally assigned to the defense and prosecution. The hearing was televised, unlike most courtroom trials, which contributed to an increase in ideological discourse as the Senators and witnesses spoke directly to the increasingly divided American public. The extremely opposing rhetoric from Democratic and Republican Senators effectively turned the committee hearing into an absorbing amalgamation of positive PR and criminal trial.
This investigation analyzes two exchanges from the transcript of the day Dr. Ford and Justice Kavanaugh underwent questioning during his confirmation hearing, applying Gricean pragmatics to the participants’ linguistic and communicative choices to explore the narrative construction and cultural ideologies that underpinned the idiosyncratic discourse of the hearing. It is my intention to demonstrate the clear methods of narrative manipulation through strategic questioning and cooperative or evasive responses. From this exploration, I hope to not only illustrate the cross-examination format of the Judiciary Committee’s hearing, but also how epistemological ideologies found within cross-examination discourse impacted the hearing.
Cross-Examination as a Genre
Traditionally, cross-examinations are part of a legal process in which a witness is interrogated after their testimony in an interactive, turn-taking exchange. Cross-examinations are performed by the opposing party’s representation, and their primary function is to “persuade a judge or jury in a court of law” (Bax, 2011, p. 124). Justice Kavanaugh’s confirmation hearing mimicked cross-examinations in this way, as Republicans employed award-winning prosecutor Rachel Mitchell to question Dr. Ford, and Democratic Senators meticulously questioned Justice Kavanaugh in such a way that caused him to lash out defensively.[2]
A successful cross-examination will pose questions that help construct a narrative that discounts or devalues the witness’ testimony. However, Harris (2001) argues that it isn’t prudent for a cross-examiner to focus on narrative construction because “hostile witnesses [. . .] cannot be given the discourse freedom to produce extended narratives” (Harris, 2001, p. 72). She instead suggests that narrative construction is most effective during direct-examination, where the questions asked of the witness come from their own side of the claim. This argument is well supported by the confirmation hearing’s interactions, as Republicans personally apologized to Justice Kavanaugh for the inconveniences bestowed upon him in an effort to naturalize his innocence, and Democrats used their allotted time with Dr. Ford to express gratitude or otherwise establish her as a credible witness.
Creating a narrative may be most effective during the direct-examination, but that does not mean cross-examinations are devoid of impactful narrative or “conceptual perspective” (Clark, 1997, as cited in Cotterill, 2004, p. 519). Manipulating the conceptual perspective involves using features of language and communication to tell a story that best exemplifies one’s claim in court. Conley and O’Barr (1998) assert, “The basic linguistic strategies of cross-examination are methods of domination and control” (p. 37). In order to control a witness, coercive questions are often employed, which allow the questioner to “impose their interpretation of the evidence through a strategic use of question forms (Ehrlich, 2001, p. 69). In other words, cross-examiners can greatly alter the optics of a case by strategically asking questions that strip witnesses of their power. As Cotterill (2004) explains, “lawyers are positioned in the interactional driving seat, and are able to control testimony by means of closed, leading, and response-restrictive questions” (p. 533). By decontextualizing elements of a witness’ testimony, or taking a part of their story out of context, and then retelling the story in such a way that benefits the opposing witness (recontextualization), a lawyer can significantly transform the narrative (Eades, 2012, p. 475). Just one strategic question can employ a range of communicative elements that attempt to control the way a witness can respond. These strategies include the use of implicatures, presuppositions, hedging techniques, and ideology.
Grice (1967, 1989) coined the term implicature to explain what is communicated without actually being said, which is a strategy often used in cross-examination, both in question and response. He argues that implicatures form when one of the maxims of cooperative conversation is flouted—or overtly violated. These maxims are quantity (providing the right amount of information), quality (providing truthful information), relevance (providing relevant information), and manner (providing clear information) (Mangion, 2011, p. 231). Grice also discussed presuppositions, or the background assumptions within an utterance that are often “taken for granted to be true regardless of whether the whole sentence is true” (Bax, 2011, p. 128). For Grice, when a speaker employs presuppositions, they are “not [framing] the utterance in such a way that allows for a possible reply” (Mangion, 2011, p. 236), which flouts the manner maxim and creates an implicature. Both implicatures and presuppositions are useful in cross-examinations. Implicatures allow a questioner or a witness to strategically imply that which would aid their case without actually having to say it, and as Hickey (1993) explains, a presupposition “can help to tell the story, it can introduce new items of information, and it can help test witness credibility” (p. 109).
Hedging, or a strategy that seeks to downplay the “assertive force” of an utterance, “may be present as a pause, a hesitation, a repair, a self-interruption, a reformulation, a slowing down of the flux of discourse, a lowering of the tone of voice, etc.” (Ponterotto, 2014, p. 93). Speakers can hedge a question by making it more polite (i.e. “would it be fair to say…”), thereby creating a more positive rapport with the witness, which can then be exploited to the questioner’s advantage. As attorney T. Sossei, explains, speakers often “reframe [a witness’] answer in a way that sounds better for [the speaker’s] case” (T. Sossei, personal communication, April 8, 2020). This supports Ponterotto’s (2014) assertion that hedging can be “a powerful discursive tool used to encode the discourse function of accusation” (p. 99). In a response, hedging can denote uncertainty or evasiveness (i.e. “umm”, “could be”, “maybe”, etc.). Saying “I don’t know” can be another example of hedging, but as Beach and Metzger (1997) explain, the utterance “I don’t know” can also be used to avoid blame, change the subject, or regulate a topic (p. 575).
When it comes to evasive witnesses, Matoesian (2005) argues that the questioning strategy of “nailing down a response” necessitates intertextual and multimodal legal and cultural ideologies that demonstrate the power imbalance between questioner and responder as the questioner seeks the truth (pp. 733, 735). T. Sossei points out that “if you argue too much with the witness, you become more discredited than the witness. If you let the witness take control of the conversation, you lose credibility” (T. Sossei, personal communication, April 8, 2020). This power play is very explicitly demonstrated in Judge Kavanaugh’s exchange with Senator Klobuchar, and, as we’ll see, the power status of the participants contributed to the overt violations of Grice’s maxims and the potential discrediting of both participants.
Language ideology, or “the cultural (or sub-cultural) system of ideas about social and linguistic relationships, together with their loading of moral and political interests” (Irvine, 1989, p. 255), plays an important role in cross-examinations as well. Language ideologies can make communication between different populations trickier due to the multidimensionality of life experiences and associations that dictate an individual’s use and understanding of language. In her exploration of language ideologies found in cross-examinations, Eades (2012) argues that “language ideologies facilitate interactional practices [and impact] the interpretation and understanding of what people say” (p. 475). Throughout the hearing, ideologies surrounding partisan politics, binge drinking, and sexual assault greatly impacted the way language was used and interpreted by all participants.
Narrative Construction
From the aforementioned literature, we can conclude that cross-examinations involve the use of linguistic and communicative tools that are employed to 1) manipulate a story to the advantage of the one asking questions and 2) format responses to increase the credibility of the witness. Therefore, narrative construction is an integral aspect of the cross-examination genre, and as Bax (2011) points out, part of constructing a narrative involves manipulating “the rules of cross-examination” by transforming the interactive format into descriptions the cross-examiner wants the deciding populous to process (p. 124). By asking questions in a way that limits the witness’ answers, the cross-examiner succeeds in constructing a beneficial narrative for their case.
Mitchell vs. Dr. Ford
The following excerpt from the hearing’s transcript is an exchange between Dr. Ford and Mitchell, who asks questions on behalf of Republican Senator Lindsay Graham. They are discussing the letter Dr. Ford sent to the Washington Post where she accuse then Judge Kavanaugh and a second man, Mark Judge, of pushing her into an empty bedroom, turning up the music, and locking the door at a high school gathering decades earlier. Once inside the bedroom, Dr. Ford describes a traumatic series of events that she believes would have led to her being raped by Judge Kavanaugh. She recounts how she managed to escape to the bathroom across the hall, at which point she claims Judge Kavanaugh and Judge left the bedroom and walked back downstairs.
Mitchell begins by asking a series of questions that are meant to cast doubt on one of the surrounding details of Dr. Ford’s testimony: what Dr. Ford heard as she left the house. Dr. Ford is extremely cooperative with Mitchell. She’s deferential and concise in her answers, and she apologizes when she violates the turn-taking guidelines of the genre. Dr. Ford’s answers carry no implications; what she says it what she means and therefore adheres to Grice’s conversation maxims. Mitchell doesn’t question Dr. Ford’s memory overtly. Instead, she flouts the maxims of relevance and manner, creating the implicature that Dr. Ford couldn’t be sure of what she heard, because the bathroom door was closed. As attorney O. Overholster explains, “I’ll often simply let the vagueness stand on its own. This allows the judge or jury to more readily come to the conclusion that the witness simply doesn’t remember. Misremembering is a lower bar to clear than showing someone to be a liar and has nearly the same effect” (G. Overholster, personal communication, April, 12 2020). This small detail allows Mitchell to paint Dr. Ford’s claim as a presupposition, one that would fall victim to Hickey’s (1993) assertion that “the truth or falsity of [one statement] may affect the ‘truth-value’, ‘appropriateness’ or ‘honest usability’ of [the other statement]” (p. 90).
As Mitchell’s questioning continues, the constructed conceptual perspective of Dr. Ford’s inability to accurately process her environment continues as well:
MITCHELL: In fact, in your letter, you said that they went down the stairs and they were talking with other people…
FORD: Yes.
MITCHELL: … in the house.
FORD: Correct.
MITCHELL: Were you able to hear that conversation?
FORD: I was not able to hear that conversation. But I was aware that they were downstairs and that I would have to walk past them to get out of the house.
MITCHELL: OK. Now, let me make sure we’re on the same page. Were you not able to hear the conversation, or not able to understand the conversation?
FORD: I couldn’t hear the conversation. I was upstairs.
MITCHELL: OK.
How do you know there was a conversation?
FORD: I’m just assuming, since it was a social gathering, people were talking. I don’t know.
(The Washington Post, 2018)
Mitchell’s strategy is effective because she creates a presupposition that diminishes the “truth value” of Dr. Ford’s testimony: if Dr. Ford couldn’t hear the conversation, how did she know a conversation occurred? This is a good example of what Eades (2012) describes as “recontextualization” (p. 475). “[In regards to recontextualization], I will walk the witness through the event step by step, getting them to agree with the (correct) things that they previously said and then question why they did or didn’t do a certain thing at the end of that string of steps” (G. Overholster, personal communication, April 12, 2020). Mitchell attempts to discredit Dr. Ford’s testimony by transforming an a priori deduction into a lie, but Dr. Ford uses standard elements of the high school party archetype to support her original claim.
It’s not uncommon for small details like this to be put under a microscope during a sexual assault investigation. During Justice Kavanaugh’s confirmation hearing, the “Me Too” movement dominated media, with hashtags like #BelieveWomen and #TimesUp trending globally, and the language surrounding sexual assault trials was starting to change. Additionally, studies on sexual assault trials have demonstrated “the power of cross-examiners to ‘reproduce rape’ […] or revictimize rape victims in the courtroom” (Ehrlich, 2001, pp.75-76), which likely contributed to the decision not to openly criticize Dr. Ford’s account of the assault itself. Instead, supporters of Justice Kavanaugh’s innocence chose to criticize the details surrounding the alleged assault, counting on the logic of presuppositions to reduce the “truth-value” of Dr. Ford’s entire testimony when she couldn’t remember minor details of the night in question. However, fixating on the peripheral details of a case is a double-edged sword. As Attorney G. Overholster asserts, “[H]arping on relatively minor inconsistencies makes it look like the cross-examiner is grasping at straws and has no real substantive point” (G. Overholster, personal communication, April 12, 2020).
Klobuchar vs. Kavanaugh
Democratic Senator Klobuchar begins her allotted time by trying to nail down an answer from Judge Kavanaugh regarding his opinion about conducting an FBI investigation into Dr. Ford’s accusation. She recounts Anita Hill’s accusation of sexual harassment during Justice Thomas’ confirmation hearing, which led President George W. Bush to request an FBI investigation into the claim. Klobuchar then asks, “So was his decision reasonable?” (The Washington Post, 2018). This is a leading question that attempts to trap Judge Kavanaugh into agreeing that an FBI investigation is warranted in response to Dr. Ford’s accusation. Dr. D. Aldridge, a former public defender, explains, “The most important strategy in cross-examination to manipulate the conceptual perspective or narrative is to ask “leading” questions of the sort which can elicit only a “yes” or “no” answer. You do not want the witness to “explain” things but to agree or disagree with your propositions” (D. Aldridge, personal communication, April 11, 2020). However, rather than adhere to Grice’s cooperative principle, Judge Kavanaugh flouts the relevance and manner maxims by employing a range of hedging strategies in order to avoid answering the question directly. He deflects questions by “claiming insufficient knowledge” in a way that “attempts to terminate a problematic topic” and move to “alternative issues and considerations” (Beach and Metzger, 1997, p. 575). Additionally, Judge Kavanaugh utilizes reductionist tactics that equate the hearing to an absurd inquiry into trivial facts related to his high school experience, thereby simultaneously avoiding Senator Klobuchar’s questions and minimizing Dr. Ford’s claim as being unworthy of questioning. When the exchange turns to Judge Kavanaugh’s drinking habits in high school, his hedging strategy becomes recalcitrant.
KLOBUCHAR: OK. Drinking is one thing, but the concern is about truthfulness, and in your written testimony, you said sometimes you had too many drinks. Was there ever a time when you drank so much that you couldn’t remember what happened, or part of what happened the night before?
KAVANAUGH: No, I — no. I remember what happened, and I think you’ve probably had beers, Senator, and — and so I…
KLOBUCHAR: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened.
KAVANAUGH: It’s — you’re asking about, you know, blackout. I don’t know. Have you?
KLOBUCHAR: Could you answer the question, Judge? I just — so you — that’s not happened. Is that your answer?
KAVANAUGH: Yeah, and I’m curious if you have.
KLOBUCHAR: I have no drinking problem, Judge.
KAVANAUGH: Yeah, nor do I.
KLOBUCHAR: OK, thank you.
(The Washington Post, 2018)
Senator Klobuchar’s question attempts to decontextualize alcohol-induced memory loss in order to connect a passive and common experience with an aggressive act of sexual assault. “Decontextualization [. . .] is a strategy that can annoy some witnesses, and the judge or jury will then pay attention to their annoyance and ill temper rather than what they are saying” (G. Overholster, personal communication, April 12, 2020). It’s unknown whether Senator Klobuchar intended to invoke an emotionally driven response with her line of questioning, but Judge Kavanaugh does become obstinately evasive as he attempts to recontextualize binge drinking into a universal high school experience. Judge Kavanaugh’s use of “I don’t know” suggests not only avoidance, but a desire to change the topic. When he glibly takes advantage of the turn-taking element of their exchange by flouting Grice’s relevance maxim and turning the question back around on Senator Klobuchar, Judge Kavanaugh unwittingly creates an implicature, one that could imply he has indeed blacked out at some point in his high school career, but he is unwilling to admit it, because it would cast doubt on his assertion that the assault never took place. Senator Klobuchar chooses to infer that Judge Kavanaugh’s response implies he’s had no history of blacking out, but Judge Kavanaugh continues his hedging strategy by prevaricating and interrogating the Senator rather than answering her question directly. He doubles-down on his attempt to flip the narrative toward a superficial exploration of high school drinking habits in the hopes that he can persuade the Judiciary Committee toward the inconsequentiality of his alcohol consumption. After this exchange, Senator Klobuchar runs out of time to get her question answered directly, leaving Judge Kavanaugh successful in his goal to evade it.
Justice Kavanaugh and Senator Klobuchar’s exchange demonstrated a distinct contest for power. Prior to the hearing, Justice Kavanaugh and Senator Klobuchar were peers, but the outcome of the hearing had the potential to elevate Judge Kavanaugh’s status so that he was no longer Senator Klobuchar’s peer but legal superior. However, in order to ascend to the Supreme Court, Justice Kavanaugh needed confirmation from the Judiciary Committee, to which Senator Klobuchar had a vote. The partisan politics at play designated Senator Klobuchar as Justice Kavanaugh’s cross-examiner, which, as I’ve illustrated, gave Senator Klobuchar power over Justice Kavanaugh, if only temporarily. This multidimensional power dynamic contributed to the uncooperative nature of the interactive exchange. While the register of their interaction was typical of cross-examinations, it fell outside of the norm for professional peers and even more so for professionals of unequal status, as Justice Kavanaugh had the potential to become. Language ideologies that surround binge drinking and sexual assault escalated the exchange so profoundly that neither participant was able to effectively communicate.
Conclusion
This analysis has investigated the question strategies present in the Judiciary Committee hearing on the nomination of Judge Brett Kavanaugh to be an Associate Judge of the Supreme Court. Additionally, I’ve explored how question strategies can be an exercise in power, as well as how they are employed to control the narrative of the story. Previous research has shown that linguistic and communicative choices play a very large role in narrative construction. As Ehrlich (2001) explains, “The linguistic power afforded to lawyers is most apparent [. . .] in the coercive and controlling questions they ask during cross-examination” (p. 69). By comparing previous research on cross-examinations with the Judiciary Committee hearing’s transcript, I’ve demonstrated that the fifth day of Justice Kavanaugh’s hearing greatly resembled the cross-examination phase of courtroom trials. I’ve also provided evidence for Grice’s maxim violation within the text, further supporting the presence of question strategies that create implicatures and presuppositions that offer a questioner control over a witness. Finally, in exploring the ideological underpinnings of the hearing, I’ve illustrated how Justice Kavanaugh’s confirmation hearing was impacted by: 1) the struggle for power, 2) rhetoric surrounding binge drinking, and 3.) the increased visibility of sexual assault victims and the trending condemnation of the people they accuse.
References
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[1] Senate Judiciary Committee, Majority Press. (2018, September 6) Committee Democrats Continue Delay Tactics with Volume of Written Questions for Kavanaugh [Press Release]. Retrieved from: https://www.judiciary.senate.gov/press/rep/releases/scotus_committee-democrats-continue-delay-tactics-with-volume-of-written-questions-for-kavanaugh
[2] Lord, Debby. (2018, September 26) Who is Rachel Mitchell, the woman who will be questioning Ford, Kavanaugh? Dayton Daily News. Retrieved from: https://www.daytondailynews.com/news/national/who-rachel-mitchell-the-woman-who-will-questioning-ford-kavanaugh/2AyV5TdnxtIBX9YagGes2I/
