Heading into yesterday's extraordinary rollercoaster hearing on Capitol Hill, I was inclined to support Brett Kavanaugh's nomination to the US Supreme Court. His credentials are sterling. His judicial record is lengthy and impressive. He's served on the "second highest court in the land" for a dozen years, during which his legal reasoning was routinely adopted by Supreme Court justices. He struck me as the sort of nominee I was hoping would fill Justice Kennedy's vacant seat: A deeply-qualified, smart, relatively young constitutionalist. Remarkably, nearly all of these considerations have seemingly been reduced to afterthoughts as we await key votes on his pending nomination.
I found the conduct of Democrats on the Senate Judiciary Committee -- long home to some of their party's most shameless smear artists and grandstanders -- characteristically obnoxious during Kavanaugh's initial confirmation hearings. Their subsequent conduct, underscored by their appalling handling of an attempted assault allegation that was strategically and cynically withheld until the confirmation process was nearly complete, was disgraceful. Someone or someones on the Democratic side of the aisle leaked the existence of Dr. Ford's letter to the press after Kavanaugh's hearings, directly betraying the explicit wishes of the alleged victim. They took a serious accusation and weaponized it, attempting to use their own inaction and shabby tactics as a justification to delay and derail the nomination, with Republicans boxed into a corner. A seething Sen. Lindsey Graham said it all yesterday, with a strong assist from Sen. Ben Sasse's recapitulation of the partial timeline:
As Dr. Ford testified, I found her to be deeply sympathetic, intelligent and compelling. She presented as a reasonable and credible person. Her opening statement was searing, and she handled the question-and-answer session with poise and grace. I do not believe she was actively lying; I think she was recounting what she genuinely believes occurred. Even so, some of the shifts in her account, her inability to remember certain information from recent weeks, and her very weak answer about why her own lifelong female friend failed to corroborate her decades-old story (namely, that her friend is dealing with health issues, and privately apologized for the statement she submitted to the Senate, under penalty of perjury) gave me pause.
Other skeptics didn't buy that Ford was able to recall having a single beer at the party, as well as every detail of the alleged assault -- yet couldn't pinpoint where or when it happened with any precision, and couldn't recall how she got to and from the gathering she describes. I don't know about that: It seems plausible that someone would be able to vividly remember a very significant life event, even as other details faded into cloudiness, especially many years later. On the other hand, it is significant that by her own admission, she did not disclose anything about that night to anyone for 30 years. She told nobody at the time who could now confirm that she did so. And the other four individuals she specifically named as attendees at the social event have all either directly contradicted her memory, or have declined to corroborate it. These facts matter.
For his part, Kavanaugh testified with all the fury and emotion of a wrongly-accused man. I do not believe he was actively lying; I think he was saying what he genuinely believes to be true. He righteously raged at the committee Democrats who'd demonized and assailed him from the nanosecond he was announced as the president's choice. He recited his life's record in regards to the treatment of women, choking up at times as he mentioned his family and close friends. Like Ford, Kavanaugh delivered a tour de force. Some skeptics wonder if he inaccurately recounted certain yearbook inside jokes, or underplayed his own youthful drinking habits. They framed his unwillingness to call for an FBI investigation (more on that subject below) as potential fear of the truth coming out.
I don't know about that: The committee could have adjudicated this claim far more thoroughly if it had pursued it in a discreet and timely manner over the summer, rather than engaging in an eleventh-hour, partisan leak. We've learned that the ranking member, Sen. Dianne Feinstein, back-channeled with the accuser and recommended counsel prior to meeting privately with Kavanaugh, and quizzing him under oath -- both in open and closed sessions. She never said one peep about the allegation to him in any of those contexts, waiting to weigh in until the story exploded just before the committee vote. Kavanaugh felt like he'd been deeply wronged by these people (don't forget about the other, far less credible accusations that were flung at him) and might be forgiven for not being eager to pander to their latest calculated demand, thus offering critics more opportunity to torment him and his family. Bad faith begets toxic suspicion.
So after a marathon, emotionally-draining day of powerful and memorable testimony, I found myself right back where I'd begun: Totally unsure of whose account was objectively correct, repulsed by Democrats' machinations, and therefore defaulting back to the evidence -- or lack thereof. As I mentioned, the other allegations against Kavanaugh are not credible. Ford's is the one that mattered. And on this front, there is zero contemporaneous corroboration of the claim, even from the people Ford herself identified as fact witnesses. The incident in question allegedly occurred in mid-1982, several years prior to my birth. I have no idea what did, or did not, occur -- nor does virtually anyone else who's observing this process. So the question boils down to this: Does a highly-qualified, ideologically-acceptable (in my opinion) judge deserve to have his nomination to the Supreme Court jettisoned over an uncorroborated, decades-old allegation? My conclusion is articulated eloquently by David French:
I have the deepest sympathy for Dr. Ford. She was forced forward through leaks — leaks likely motivated more by concern for the political balance of the Supreme Court than regard for Dr. Ford — and she also spoke with great emotion. Her emotion resonated across the nation as well. She should be treated with dignity and respect, but there is still no evidence aside from her own testimony supporting her claim. There is abundant evidence casting doubt on her account. Those are the facts. And it is also a fact that Kavanaugh has been subjected to a series of abhorrent, unsubstantiated allegations culminating in a fantastical and grotesque allegation of gang rape that all too many Serious People took all too seriously...Today, there were conservatives across the nation who choked up — some openly wept — during his testimony. Not because they disrespect women. Not because they excuse sexual assault. But because they also love their sons. Because they are tired of being painted as evil when they are seeking to do what’s right. Because they want to see a man fight with honor. That’s what Brett Kavanaugh did today. He fought with passion, evidence, and compassion. And absent any new, substantiated revelations, he united the conservative movement. Any Republican who abandons him now will abandon the electorate that put them in power.
As for those who may be baffled over why legions of conservatives are furious about this latest, hideous episode in the judicial confirmation wars (in which Democrats have often been the unilateral escalators and aggressors), listen to every word uttered by Sen. Graham earlier today. If you're pressed for time, skip ahead to the last three-and-a-half minutes:
Finally, although I reject Democrats' antics demanding an FBI investigation as a delay tactic, I also believe a sizable number of fair-minded Americans are legitimately torn about what might represent a just outcome on the Kavanaugh nomination. Many of these people might be reassured by some additional FBI involvement, especially as it pertains to Mark Judge, Kavanaugh's friend who is alleged by Ford to have been in the room during the assault she recalls. It's true that Judge has submitted two letters, under penalty of perjury, to the committee in which he states that he has no recollection of any such party and has never seen Kavanaugh do anything like Dr. Ford alleges. It's true that the FBI simply executing a new 302 form may be a substantively useless exercise. Nevertheless, I've floated what I see as an extremely modest compromise:
This would respect Judge’s wishes not to speak publicly, would avoid a lengthy delay & would on some level satisfy Democrats’ insistence that he be subjected to something beyond writing a letter. 2/— Guy Benson (@guypbenson) September 28, 2018
I’m just trying to find some reasonable solution that would at least defuse some of the sky-high rancor, and that would allow each side to feel like it gained something in this ugly process without ‘surrendering’ or getting totally steamrolled. 4/— Guy Benson (@guypbenson) September 28, 2018
As I noted, this idea would almost certainly not delay the trajectory of this process by even one minute. Agents could easily take Judge's statement over the weekend, then enter it into the record well before the final confirmation vote -- which would come late Tuesday at the earliest, as I understand it. If Mr. Judge basically repeats his same assertion, nothing changes. If he radically alters his story in a way that changes the game, which I see as highly unlikely, so be it. I fully recognize that this small step will not placate hardened partisans committed to Kavanaugh's defeat. But it is a simple, minimally-disruptive action that could allow some closure and assuage some modicum of concern for a fair number of people, without altering the likely timeline in any way. Our politics is a venomous pressure cooker. Making a few relatively painless accommodations to mitigate some of that tension and restore some degree of trust and legitimacy in the eyes of undecided observers, and some elements of the 'losing' side, seems like a good and sensible thing to try.
UPDATE - The Judiciary Committee has advanced Kavanaugh's nomination in a party line vote, 11-10. Retiring Republican Sen. Jeff Flake has called for a limited FBI intervention, lasting no more than one week, prior to a final floor vote. In order to accommodate Flake and any wavering Senators, the idea I advanced above merits consideration.