Support the news

Sinking Kavanaugh Could Cost Democrats The House

President Donald Trump's Supreme Court nominee Brett Kavanaugh is sworn in before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Sept. 4, 2018, to begin his testimony in his confirmation hearing to replace retired Justice Anthony Kennedy. (Andrew Harnik/AP)
President Donald Trump's Supreme Court nominee Brett Kavanaugh is sworn in before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Sept. 4, 2018, to begin his testimony in his confirmation hearing to replace retired Justice Anthony Kennedy. (Andrew Harnik/AP)
This article is more than 1 year old.

Editor's note: Today, Cognoscenti features two differing points of view about the allegations facing Supreme Court nominee Brett Kavanaugh. A view from the other side of the debate is here.


What will Democrats accomplish if they succeed in derailing Brett Kavanaugh’s appointment to the Supreme Court? The president will pick another right-wing judge from the Federalist Society list to take his place. He or she will be probably be confirmed by the Senate, which is likely to remain in Republican control even in the wake of a blue wave in November.

Indeed, if Kavanaugh goes down, the Republican base will rise up, helping to ensure the party’s hold on the Senate and imperiling Democrats’ chances of taking back the House. Senate Democrats are gambling that independent voters and some moderate Republican women share their outrage at all allegations of sexual misconduct, regardless of context or substance. It’s a high reward, high-risk strategy that could cost Democrats the House. It is the only branch of government clearly up for grabs in November, absent a political miracle, and the only hope for voters who want to hold the president accountable and in check. Democrats should keep their eyes on the prize.

They should also be wary of surrendering to the excesses of the #MeToo movement. The allegations against Kavanaugh are not comparable to the allegations brought by Anita Hill against Clarence Thomas some 25 years ago. He was credibly charged with engaging in sexual harassment in his recent past, as head of the federal agency tasked with enforcing laws against harassment and other forms of workplace discrimination. Kavanaugh is, so far, accused of a single, decades-old instance of youthful sexual misconduct, the only evidence of which are the decades-old memories of his accuser.

Sen. Dianne Feinstein, D-Calif., the ranking member on the Senate Judiciary Committee, flanked by Chairman Chuck Grassley, R-Iowa, left, and Sen. Patrick Leahy, D-Vt., right, makes an opening statement at the confirmation hearing of President Donald Trump's Supreme Court nominee, Brett Kavanaugh, on Capitol Hill in Washington, Tuesday, Sept. 4, 2018. (J. Scott Applewhite/AP)
Sen. Dianne Feinstein, D-Calif., the ranking member on the Senate Judiciary Committee, flanked by Chairman Chuck Grassley, R-Iowa, left, and Sen. Patrick Leahy, D-Vt., right, makes an opening statement at the confirmation hearing of President Donald Trump's Supreme Court nominee, Brett Kavanaugh, on Capitol Hill in Washington, Tuesday, Sept. 4, 2018. (J. Scott Applewhite/AP)

The #MeToo movement would have us assume that her memories represent historical fact. But accusations of abuse should not be believed automatically any more than they should be automatically disbelieved. And you don’t have to disbelieve Christine Blasey Ford to wonder how the Senate can evaluate a 35-year-old allegation of assault by a teenage Brett Kavanaugh. I imagine that Ford believes she’s faithfully recounting the facts (and she has reportedly passed a lie detector test). But how accurate is her memory? How accurate were her perceptions at the time? And how can Kavanaugh defend himself against an accusation dating back to his high school years, involving a party and an alleged incident he may not even remember?

The FBI has declined to investigate. Can the Senate conduct a fair, independent investigation of alleged misconduct by drunken high school boys so many years ago?

Both Ford and Kavanaugh have expressed their willingness to testify, and they’ll both get the chance at a public hearing on Monday, September 24th. Republicans have been treading carefully, for fear of alienating female voters. Kellyanne Conway assured us that Ford will be heard, and with uncharacteristic restraint, the president approved “a little delay” in order to “hear everybody out.” Not surprisingly, “everybody" will include what Politico reports are “dueling ad campaigns" by conservative and liberal groups.

I expect Ford will be quite a credible witness who will have the advantage of a disturbing, emotionally engaging story to tell. Kavanaugh can only repeat the blanket denial he has already issued. I’m skeptical that we’ll learn much from the spectacle, and I doubt it will be free of bias.

Democrats will side with the accuser and Republicans with the accused. Kavanaugh’s reputation will suffer, but he could still be confirmed by angry Republicans wary of their riled up base. Ford will likely be demonized and subject to rape and death threats, which she may soon receive in any case.

I’d love to be proven wrong, but I do believe the Court is lost, even if Brett Kavanaugh drops out.

I hope she gets her life back after this debacle. According to the Washington Post, Ford “had decided not to come forward” after submitting a letter to Democrats describing the alleged assault. She determined that going public “would upend her life and probably would not affect Kavanaugh’s confirmation.” But, not surprisingly, her identity was leaked, so she decided to tell her story herself.

It’s worth noting that Ford initially “expected her story to be kept confidential.” If so, what was the point of recounting it? Some #MeToo movement advocates might expect the Senate simply to believe the self-described victim, to act on an accusation of assault against a Supreme Court nominee without examining it, without identifying the accuser, questioning her and assessing her credibility. But that expectation is unrealistic and grossly unjust. No one should be condemned on the basis of anonymous accusation. No one — in or outside a courtroom — should be denied the chance to confront an accuser and mount a meaningful defense.

Ford’s letter should have been kept confidential, not belatedly turned over to the FBI and used in what is likely to be a futile effort to keep a Trump appointee off the Supreme Court. I’d love to be proven wrong, but I do believe the Court is lost, even if Brett Kavanaugh drops out. Democrats should perhaps hope he’s confirmed instead, without a prolonged sideshow and without arousing the Republican base. Given the Republican grip on the Senate, all that matters now is winning back the House.

Wendy Kaminer Cognoscenti contributor
Wendy Kaminer, a lawyer and social critic, writes about law, liberty, feminism, religion, and popular culture and is currently a correspondent at The Atlantic. Her latest book is "Worst Instincts: Cowardice, Conformity and the ACLU."

More…

+Join the discussion
TwitterfacebookEmail

Support the news