We have a closely divided country and a closely divided Senate fighting over a lifetime appointment to a closely divided Supreme Court, and the outcome now rides on decades-old allegations of sexual assault almost certain to defy definitive conclusion.
Wonderful. Just wonderful. The wedges that divide us will be driven deeper; our crumbling faith in our institutions and each other will fall further. But rather than succumb to cynicism and hopelessness, what if we at least try to approach this fairly, a process that begins by asking the right questions.
First, should it matter if back in the mists of time, some 35 years ago -- and it is still very much "if" -- a drunken Brett Kavanaugh and another high school boy tried to rape 15-year-old Christine Blasey? Should Kavanaugh’s subsequent life and career be undermined by that mistake in long-ago adolescence?
One way to answer those questions is to imagine that same set of facts, but with one change: Someone had heard Blasey’s screams for help, and criminal charges had resulted. Today, because of something that had happened 35 years earlier, Kavanaugh would not be the nominee. The conservative judicial machinery that selects, grooms and trains potential judicial nominees would never have put him on the track to the Supreme Court. And if the Trump administration had known of this allegation a few months ago, it would have sidestepped Kavanaugh and given the nod to another candidate.
In short, this allegation would have mattered a great deal to those making the nomination, so it’s hard to argue that it should not now matter to the Senate, which is tasked with confirming him.
The next question is whether events occurred as Christine Ford -- her married name -- now describes them, and on that I have to reserve judgment until I hear the testimony of those involved. (The third person named in this story, Mark Judge, has denied Ford’s story, but Senate leadership has decided that we will not hear from him. That’s probably because Judge has written two books describing in detail the heavy, blackout drinking and partying of his circle of high school friends, which includes Kavanaugh.)
It’s also important to note that the Senate is not sitting as a court of law, Kavanaugh is not facing a felony conviction or 10 years in prison, and the criminal standard of “beyond a reasonable doubt” does not apply. If senators conclude that his accuser’s story is more convincing than Kavanaugh's denial, they have every right if not an obligation to vote against him.
There's also a major irony here. From the beginning, my chief concern with Kavanaugh has been temperament, not ideology. It's a given that this nominee would be a conservative jurist deemed willing to overturn Roe v. Wade and to pursue conservative legal priorities. I may not like it, but under the Constitution, that’s the consequence of having a conservative president and Senate. That’s the way the system works, even if Republicans refused to let it work that way in the Merrick Garland nomination.
Instead, my concern with Kavanaugh has been the role he played as top assistant to Ken Starr in the Clinton investigations. Documents from that era depict Kavanaugh as a moralistic, partisan fanatic, eager to use the powers of the independent counsel to publicize every humiliating detail of Bill Clinton's sordid affair with Monica Lewinsky, even when they had no legal relevance. He now requests the fair treatment that he tried to deny others two decades ago, and despite that record, he should get it.
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