Brett Kavanaugh

Brett Kavanaugh's Illegal Beer Consumption Highlights the Perversity of Drinking Ages

The Supreme Court nominee's teenaged tippling was typical, although the law pretends otherwise.


Senate Judiciary Committee

Supreme Court nominee Brett Kavanaugh mentioned beer 28 times during his testimony to the Senate Judiciary Committee last Thursday, inviting mockery and semiotic speculation. The reason the subject came up was pretty clear: Christine Blasey Ford, the California research psychologist who says he tried to rape her when they were both in high school, described him as very drunk at the time, and one possible explanation for his seeming sincerity in denying her charge (in addition to the possibility that he is innocent) is that he honestly does not recall the episode because alcohol clouded his memory.

In response to repetitive questioning on the subject, Kavanaugh said no fewer than 10 times that he has never experienced alcohol-related memory gaps. But the discussion of Kavanaugh's drinking during high school and college ranged beyond that narrow issue, and his responses were by turns defiant, evasive, implausible, and misleading. The tenor of those exchanges was partly due to Kavanaugh's resentment of questions he deemed nosy and irrelevant. But it also reflected the clash between official expectations and the reality of adolescent drinking in America, a contradiction that he and his interlocutors seemed keen to ignore.

"My friends and I sometimes got together and had parties on weekends," Kavanaugh said in his opening statement. "The drinking age was 18 in Maryland for most of my time in high school and was 18 in D.C. for all of my time in high school. I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone." Later he added that "the drinking age, as I noted, was 18, so the seniors were legal, senior year in high school, people were legal to drink."

As several news outlets pointed out, the drinking age for beer and wine in Maryland, where Kavanaugh lived and went to school, was raised from 18 to 21 in July 1982, seven months before his 18th birthday. In other words, it was not legal for him to drink in Maryland at any point during his high school years. It would have been legal for him to buy and consume beer in D.C., which did not raise its drinking age from 18 to 21 until 1986, for most of his senior year, but it sounds like the parties to which he refers generally happened in Maryland. The fact that "the drinking age was 18 in Maryland for most of my time in high school" no doubt made it easier for underage students like Kavanaugh to obtain beer, but it did not make it legal.

Once Kavanaugh started attending Yale in the fall of 1983, the legal picture was more complicated. The drinking age in Connecticut at that point was 20, an age Kavanaugh did not reach until February 1985. It rose to 21 that September, but Kavanaugh would have been grandfathered, since he had already turned 20. In other words, it was illegal for Kavanaugh to drink as a freshman and the first semester or so of his sophomore year, a period when he, like most of his peers, nevertheless drank.

I was born the same year as Kavanaugh (1965), and I had a somewhat similar experience at Cornell. The drinking age in New York initially was 19, but it rose to 21 as of December 1985. Unlike Connecticut, New York did not give a pass to people who were already drinking legally at that point. So I entered college an underage drinker, became legal in September 1984, and a year later became illegal again, a status that lasted for a year. Since I have given up all hope of a Supreme Court nomination, I can readily admit that the varying legality of my alcohol consumption had no impact on it, except that I sometimes relied on older friends to buy liquor for me.

What's true in college is also true in high school: It is quite common for students to drink, even though it's illegal. In last year's Monitoring the Future Study, 56 percent of high school seniors reported drinking, down from 87 percent when Kavanaugh was in his last year at Georgetown Prep. When Kavanaugh says "almost everyone" his age was drinking, he is right. Underage drinking was the rule, not the exception, when Kavanaugh was in high school, and it would be strange to hold it against him. But instead of saying that, he misleadingly implied that his beer drinking complied with the law.

Kavanaugh did admit that he sometimes drank too much, but he was evasive in explaining what that meant. "What do you consider to be too many beers?" asked Rachel Mitchell, the prosecutor posing questions on behalf of the committee's Republican members. Kavanaugh's response beggared belief: "I don't know. You know, we—whatever the chart says, a blood-alcohol chart."

It is, of course, laughable to imagine Kavanaugh and his high school buddies consulting "a blood-alcohol chart" before deciding whether to have another brewski. But even if we take Kavanaugh to mean that he was careful not to drive while intoxicated, that does not really answer the question. For someone who is not planning to drive, the question of how many beers are too many has little to do with the legal standard for DUI. A good rule of thumb might be that you've drunk too many beers if you find yourself vomiting or waking up with a hangover. Young people learn their limits through practice, and those limits vary from person to person.

How often Kavanaugh drank to excess in high school and college, and exactly how drunk he was on those occasions, is a matter of some dispute among people who knew him then. But it is safe to assume that he drank a lot, as was (and is) common for high school and college students. It does not follow that he experienced blackouts, that he became aggressive, or that he assaulted Ford (or anyone else). I drank a lot in college, too much on more than a few occasions, but never found myself in a situation where I could not remember what had happened the night before or needed other people's help to piece it together. Nor was that a common experience in my social circle, although I can't speak for Kavanaugh's.

Whatever did or did not happen between Kavanaugh and Ford, this much we know: As a teenager and young man, Kavanaugh drank illegally, and sometimes he drank too much. In those respects he was not at all unusual compared to his peers, who officially were not allowed to drink, did it anyway, and sometimes "had too many beers."

You might even think there is a relationship between illegality and excess, since prohibition pushes drinking underground and makes it harder for young people to learn from older drinkers who might know a thing or two about how to stop short of too many beers. Instead high school and college students bumble along, learning from mistakes they might have avoided. Nowadays almost none of them are legally allowed to drink, even though many of them are considered adults in almost every other respect. They therefore drink on the sly, which is not conducive to moderation or responsibility. That perverse situation was the unacknowledged subtext of all the beer talk at Thursday's hearing.