Proposal: Hold an Expedited, Closed-Door Hearing on the Kavanaugh Accusation -- With All Questions Asked By A Respected Attorney

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Posted: Sep 17, 2018 1:01 PM
Proposal: Hold an Expedited, Closed-Door Hearing on the Kavanaugh Accusation -- With All Questions Asked By A Respected Attorney

If you haven't already, feel free to read my fairly extended thoughts on the allegations against Supreme Court nominee Brett Kavanaugh.  There is essentially no way of discerning whether the accuser is telling the truth, is lying, or is advancing a claim based on hazy memories that have potentially been altered or augmented over the course of three-plus decades.  But here we are.  The accusation is now public, and the dilemma has now become determining the most reasonable, fair, and useful course of action as we forge forward.  

Christine Blasey Ford -- after initially insisting that she wanted to remain anonymous -- now says she's willing to testify before the committee and furnish members with (legally inadmissible) lie detector test results.   The one alleged eyewitness, a high school friend of Kavanaugh's named Mark Judge, has denied Ford's claims completely, reiterating his denial today before (understandably) declining to comment further.  And Judge Kavanaugh released a strong statement of innocence earlier, stating that he will return to address the Senate Judiciary Committee, if need be:


Some Republican Senators firmly believe that rewarding this eleventh-hour allegation in any way, shape or form would be a mistake.  They see it as nothing more than an unverifiable and unfalsifiable dirty trick, and therefore a failure to nip it in the bud -- especially with so little evidence -- would incentivize more weaponized allegations against high-profile nominees in the future.  That's a reasonable fear.  Other Republican Senators want to afford the accuser an opportunity to state her case.  Nevertheless, even the most moderate GOP member sounds rightfully suspicious of Democrats' motives in all of this, and especially Sen. Feinstein's decisions that affected the timeline of events.  Feinstein is now saying that the unsubstantiated allegations from 1982 "bear heavily" on Kavanaugh's character (with some liberals actively pushing back against that notion), which is an interesting change of heart if this is accurate:


She didn't act on this information for nearly two months, with her staff reportedly downplaying the allegations as unworthy of public scrutiny to colleagues...until, that is, the rumors spilled into the public eye (quite possibly with her team's assistance) within one week of a key vote -- at which point, she decided it is all very serious and certainly merits public discussion.  The GOP is absolutely right to be highly skeptical of how this is going down.  They are also right to recognize the difficulty and sensitivity of this situation, which presents a no-win political conundrum: They could move forward with Thursday's vote as scheduled, and risk looking like they're not remotely interested in weighing a serious charge (and possibly even lose the vote).  Or they could postpone the vote and hold a hearing, which very well could whip up more frenzied passions and drama over competing claims, without actually resolving anything.  Again, based on the facts we have, I don't think this situation is 'resolvable.'  It's a 36-year-old he said/he said/she said with zero contemporaneous evidence.

To those Republicans wishing to give Ford her proverbial day in political court, out of respect and thoroughness, but who are also disinclined to green-light an event with a high likelihood of turning into an unseemly spectacle (recall the conduct of Democrats and protesters at the confirmation hearings), may I suggest a possible least-bad option: Conduct an expedited, under-oath hearing on this matter in closed session.  This setting would permit the accuser and the accused to state their respective cases on the record, in sworn testimony.  Senators would have the opportunity to question both individuals, as well as other potentially-relevant witnesses (such as Mr. Judge and various others vouching for character and credibility) without indulging the temptation to play to the bright lights and feverish coverage of a live open hearing.  Alternatively, or in addition, this idea strikes me as a good one.  Let a professional, respected, non-grandstanding attorney ask the questions.

This is a compromise solution that would permit members of the committee to probe this accusation in closed-door hearings, then make the resulting transcripts available to other Senators wishing to consider their contents, before allowing both the panel and full Senate to exercise its 'advice and consent' duty on the nomination. This process would necessarily push back the committee vote a bit, but that trade-off seems reasonable, so long as the postponement is relatively short, discrete, and not open-ended.  This cannot be abused as an indefinite delay tactic, especially as Democrats have every incentive to chew up the calendar ahead of the midterms, hopeful that they'll control the committee in a number of months.  As we await decisions about next steps, I'll reiterate that I'm gravely concerned about the effect on our already-damaged politics if a single, decades-old, unverifiable accusation of questionable credibility is deemed to be sufficient grounds to derail a major nominee.  On that score, read David French's excellent piece about assessing claims like this:


There's a dispute over whether the allegations are serious enough to be disqualifying if true (the woman's lawyer says even she has not taken that position), but now that Kavanaugh has denied it, outright and repeatedly, the alleged act plus the lie would certainly be disqualifying.  If he did it, and if he's lying.  And there's really no way of knowing either way.  That's why French's metric for assessing unknowable scenarios seems sensible: Are there contemporaneous accounts backing up a new claim?  In this case, the answer is no.  Are there multiple alleged victims with similar stories?  In this case, as far as we've seen, the answer is no.  (A liberal WaPo columnist has made roughly the same point about patterns of behavior).  If more women step forward with credible claims that mirror Ford's, Kavanaugh may be cooked.  Republicans would then find themselves in another bind, debating whether they could install another nominee with the clock ticking toward November and beyond.  But that's a total, and currently unfair, hypothetical.  We cannot cut Brett Kavanaugh loose based on what we have, and don't have, in this case.  I'll leave you with this:


I will not be bullied into joining a mob based on a single, thin allegation.  Neither should Republican Senators.  By the way, are Democrats already not cooperating