Carefully analyze how Kavanaugh situation unravels
In last week’s Forum piece, “The Stakes of Brett Kavanaugh’s SCOTUS Nomination,” writer Violet Fearon noted that Democrats’ chances of blocking the nomination were slim. The judge answered all of the questions capably, seemed eminently qualified, and with a Republican voting majority in the Senate, his nomination to the highest judicial body in the land appeared to be a foregone conclusion. That calculus was radically disrupted last week when Christine Blasey Ford, a California college professor, that the then-17-year-old Kavanaugh had attempted to rape her at a Maryland house party. By Ford’s account, the future judge locked her in a bedroom, jumped on top of her and tried to take her clothes off, although she was able to escape. The facts surrounding this story are still being established, and new details and developments seem to pop up every day.
There is very little chance that Mr. Kavanaugh can be prosecuted for his alleged behavior over 30 years ago, even if it were proven to be true. Maryland’s current statute of limitations would not allow local police to reopen the case, and Governor Larry Hogan has already that he does not intend to launch a state investigation into the matter. However, the Senate’s hearings are not just a series of background checks. Ultimately, they are about determining whether Kavanaugh is fit to serve for the rest of his life on the U.S.’s highest court. An attempted sexual assault would speak very poorly of his character, and if the accusations are truthful, he should not be granted the post. One can only hope that Senators reach a bipartisan agreement on this matter.
Dr. Ford’s allegations deserve careful and thorough consideration. Although she describes herself as a liberal, she seems to lack extreme political leanings or an obvious axe to grind against Mr. Kavanaugh or the Republican Party. The two of them knew each other during the period Dr. Ford describes, although they did not attend the same high school. The jurist already admitted in Congressional testimony to partying and drinking in his teenage years, fitting in with Dr. Ford’s narrative. Lending further credence to this narrative is Mr. Kavanaugh’s membership in Yale’s Delta Kappa Epsilon fraternity, nationally infamous for its boozing and callous treatment of women. Crucially, her recollections of the assault were discussed privately with her therapist as early as 2012, long before Mr. Kavanaugh’s Supreme Court nomination, so it is difficult to make a case that the entire debacle was staged at the last minute for political purposes.
On the other hand, the facts mentioned above are not a very high standard of proof to set. While they prevent the allegations from being rejected out of hand, they certainly do very little to make them more believable. Indeed, there are still serious gaps in her story. Among other things, she does not remember when or where the party was. The classmate whom she alleges was present during the assault, Mark Judge, also denies any such incident occurred. Even if Dr. Ford remembered the night with crystal clarity, what she describes is at best the dictionary definition of a “he said, she said” situation. How is Mr. Kavanaugh supposed to refute these accusations? With what evidence is he to defend himself? Isn’t he innocent until proven guilty?
With this in mind, there should be little debate over the necessity of an investigation into the allegation. To delay the nomination is not ideal, but it would be infinitely worse to ignore the allegation altogether and rush to confirm him, only to potentially find out the accusation is true later. Given that Supreme Court Justices serve for life, the last thing the Court needs is a sex criminal deciding the legal fate of this country for some 30-odd years. The Senate realizes this, and as of this writing, Dr. Ford has to testify before the Judiciary Committee about the matter. An FBI investigation, which she also insisted upon, is likely to follow shortly.
More importantly, though, the accusations are either true or false, and Kavanaugh’s categorical denial of the incident has left little room for ambiguity: Someone’s version of the story is inaccurate. With the limited information that the American public has been given, it is impossible for us to figure out whose version is true, and unless one of the two suddenly changes tune, there is only so much that an investigation can accomplish. It is far more likely that Dr. Ford will say her bit, Mr. Kavanaugh will say his, the allegations will remain allegations and the voting Senators will continue to believe whomever it is politically expedient to believe. As it currently stands, the Senators will likely vote along party lines.
The only real difference will be that the confirmation vote is delayed — possibly until after the 2018 midterms, which are projected to favor the Democrats. In a highly polarized Senate where the Republicans hold a razor-thin 51-49 voting majority, even a handful of shifting seats could put Mr. Kavanaugh’s confirmation in serious jeopardy, and a “blue wave” would certainly sink it. It is therefore in the Democrats’ interest to delay the confirmation vote until the new Congress takes their seats in January 2019 and in the Republicans’ to wrap it up as quickly as possible and bring the matter to a vote. This, more than anything else, will likely guide the behavior of our Senators in the coming weeks and as the situation further develops.