The accusation by Dr. Christine Blasey Ford that a drunken 17-year old Brett Kavanaugh attempted to rape her has imperiled Kavanaugh’s Supreme Court nomination. Here are eight reasons why Judge Kavanaugh’s nomination may fail.
1. Dr. Blasey Ford’s credibility is virtually unassailable. She was reluctant to come forward. She had decided to remain anonymous and let the nomination proceed until reporters learned her identity and forced her to take charge of her story. She knew that telling her story would upend her life in unpleasant and permanent ways, as demonstrated by Anita Hill’s experience. There was simply no reason for her to come forward – particularly in this highly charged context — to tell a lie.
2. Judge Kavanaugh’s credibility has declined through his confirmation performance. He began the process by telling this bald-faced lie in the Rose Garden when Trump announced his nomination: “No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination.” In reality, Trump outsourced the selection process to the Federalist Society and Heritage Foundation and engaged in the process less than any modern president. Kavanaugh’s candor suffered in his hearing from misleading statements about his involvement in the confirmations of Bush judicial nominees, Bush’s warrantless surveillance program and the detainee torture program. He stated falsely that he did not receive confidential memos stolen from the computer files of Democratic senators while working on judicial confirmations in the White House.
3. The Republican majority weakened Kavanaugh’s confirmation chances by insisting on a rushed and corrupt confirmation process. Some 90% of documents from his government service were not produced. Those produced did not come from the National Archives, but through a partisan filter. Of the documents produced, Chair Grassley blocked a large percentage from public release and Trump asserted executive privilege to conceal another 100,000. Democrats were appropriately outraged that they were asked to confirm Kavanaugh without seeing the bulk of his record. But, Republicans were handicapped, as well. Their rush reflected their fears of what might be in those documents. They were caught off guard when Ford’s allegation landed. Because Republicans don’t know what else may be lurking in his record, it is risky for them to offer unmitigated support.
4. Kavanaugh has already simplified the inquiry and made his survival less likely by flatly denying that the incident ever happened. Some reflexive Kavanaugh defenders initially suggested Kavanaugh should not be judged for something that happened when he was 17. But Kavanaugh took that argument off the table with his flat denial that the incident happened. If it did, he lied and cannot be confirmed. His already shaken credibility will make it extremely difficult to convince senators and the public that nothing happened.
5. The Republican Party’s alienation of women will come home to roost if there is a hearing. The Republican side of the committee dais will be occupied by eleven men. The Democratic side will have four women and six men. The optics will be striking. Equally important, the Democratic women are forceful questioners who will ask Kavanaugh hard and potentially embarrassing questions (they have already grilled him) about his drinking, his friends, and his behavior in high school. Meanwhile, the guys on the Republican side will not help their cause and will face enormous political peril if they attack Dr. Blasey Ford’s credibility. The specter of the Committee’s mistreatment of Anita Hill will permeate the committee room. Unfortunately for them, Kavanaugh’s denial that anything happened means they cannot save his nomination unless they show that Ford is lying.
6. Chair Grassley has pressed for a head-to-head confrontation between Kavanaugh and Dr. Blasey Ford without the assistance of an underlying investigation or additional witnesses. Ford understandably has balked at this scenario, demanding some prior investigation. The proper way to address this matter would be to conduct a full investigation before a hearing, which would then include all relevant witnesses. Without factual investigation, a hearing will be untethered and unpredictable theatre. Once again, Republicans’ disdain for process could backfire against them.
7. Confirmation is a political process. Propositions don’t need to be established beyond a reasonable doubt or even be supported by a preponderance of the evidence. Rather, they are evaluated according to the political interests of individual senators. Republicans are facing challenging mid-term elections. Democrats – and particularly Democratic women – are on the march. Republicans cannot afford to alienate further women and allied men by supporting a lifetime Supreme Court appointment for a man who is credibly alleged to have attempted to rape a 15-year old woman. While such support should be morally untenable, it is surely politically toxic.
8. Kavanaugh may be forced to withdraw. Trump cares less about Kavanaugh than he does about delivering a conservative justice to satisfy his base. Republican senators care about locking in a conservative majority. The best thing for Trump and for Republicans in the senate would be for Kavanaugh to withdraw before a hearing. Trump could nominate a replacement. Republican senators would be spared the ordeal of questioning a victim of sexual assault before millions of viewers. A plurality of the public opposed Kavanaugh’s confirmation before Ford’s accusation surfaced. He will be even less popular after a hearing. Pressure will grow in coming days for Kavanaugh to withdraw his nomination. For the sake of the Court and the country, he should.
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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.