Some Kavanaugh Supporters Question His Accountability For Alleged Assault As A Teen

Some supporters of Supreme Court nominee Brett Kavanaugh are debating whether he should be held accountable for a sexual assault he's been accused of committing in high school more than 30 years ago. Kavanaugh denies the assault took place.

Here & Now's Lisa Mullins speaks with Mark Joseph Stern (@mjs_DC), who has been looking at the issue for Slate.

On the argument being made by some of Kavanaugh's supporters that the allegation against him shouldn't matter because the alleged incident happened when he was a teenager

"The first issue that's important to clarify is that of course Brett Kavanaugh has not admitted to these alleged misdeeds. The nominee denies this completely, and I think that's important to note, because some of his defenders are moving forward as though the accusations might be true and even if they are, they shouldn't matter, because what we do as teenagers shouldn't haunt us for life — and that's a little inconsistent with what Kavanaugh has actually said. He denies this, and so it's a little odd to move forward as though it happened, when he's saying it didn't.

“But putting that aside for a moment, taking [former White House press secretary] Ari Fleischer’s line of defense, that what we do as teenagers shouldn't haunt us forever, a lot of criminal justice advocates agree. There's all kinds of science that shows that our brains are still developing when we're teenagers, that we shouldn't be held fully accountable for the rest of our lives for what we do with that period in our life. But when we talk about expunging juveniles' records, granting them clemency, releasing them early from prison for crimes they committed in their teenage years, we are always talking about individuals who admit to their crimes. We're talking about people who try to rehabilitate themselves."

"There's a real chance if Kavanaugh's nomination is delayed by even just a week, that we will have a Supreme Court term that ends with a bunch of deadlock cases regarding pretty major issues."

Mark Joseph Stern

On how Ford's sexual assault allegation against Kavanaugh might be dealt with legally

"The good news here is that we are not talking about a criminal trial in a court of law. We don't have to find Brett Kavanaugh guilty beyond a reasonable doubt to draw a conclusion in this case. This is a Senate confirmation hearing to the Supreme Court; the constitutional standard is different. The Senate only has to provide advice and consent, and what that means in this context is that each senator has a duty to determine whether they think this incident occurred or not based on the best available evidence before them, and — critically — whether they think the nominee is lying about it today.

"The accuser has requested an FBI investigation, which would at least require private testimony on the part of all parties. If there is a hearing of some sorts, then presumably both the accuser and Kavanaugh would be able to explain their stories and discuss their views under oath before the Senate. … This would not be like a true criminal trial, where there's confrontation on the stand and cross-examination."

On how long an FBI investigation could take if one were to be approved

"The FBI investigation into Anita Hill's claims did not take very long at all, because the FBI agents essentially questioned the individuals who were named and decided they couldn't draw any firm conclusions and left it at that. I think that here an investigation would probably end up taking just a few weeks as well. There's not going to be physical evidence; that takes a lot off the table. They're going to have to talk to witnesses, eyewitnesses and perhaps look into secondhand accounts."

On what it would mean for the Supreme Court if Kavanaugh's nomination fails

“The court actually lined up a series of pretty important cases on its docket in October. There are cases involving the Endangered Species Act, mandatory arbitration, workers' rights, the death penalty, detention of immigrants.

"If Kavanaugh's not confirmed by Oct. 1, which is when the court's term starts, then we could start seeing these stalemates, like we saw after [Justice Antonin] Scalia died, and so there's a real chance if Kavanaugh's nomination is delayed by even just a week, that we will have a Supreme Court term that ends with a bunch of deadlock cases regarding pretty major issues."