Now that another woman has told the New Yorker about another episode alleging sexually belligerent behavior in the 1980s by Brett Kavanaugh, the White House has put out a statement that inadvertently makes a strong argument for, not against, further examination of Kavanaugh’s background by the FBI.
Responding to the new allegation, a White House spokesman dismissed it as a “smear,” and added:
“This claim is denied by all who were said to be present and is wholly inconsistent with what many women and men who knew Judge Kavanaugh at the time in college say.”
You know who might do a good job verifying that “all who were said to be present” deny the new allegation, and that it is “wholly inconsistent” with what “many” who knew Kavanaugh at the time say? The FBI would, that’s who. And if the FBI did reopen its background check and confirm these things, it would go great lengths toward exonerating him. So why don’t Republicans want this to happen?
It should be stated up front that the new allegations have not been publicly corroborated by anyone. Kavanaugh’s defenders may argue that if the FBI were called in (which President Trump would have to do), this means anyone can far too easily make that happen by concocting a charge against a nominee on his or her own, thus baselessly casting further suspicion over that nominee. This is not an unreasonable objection. I’ll try to address it below.
The woman, Deborah Ramirez, admitted to the New Yorker that she was “inebriated” at the time and that there are “significant gaps” in her memory. Ramirez claims that when she and Kavanaugh were freshmen at Yale, at a dorm party a young man pointed a gag plastic penis at her, and she recalls that man and another man standing near her as she lay on the floor. New Yorker reporters Ronan Farrow and Jane Mayer claim Ramirez identified these two men, but the piece doesn’t name them.
Ramirez then recounts that a third male exposed himself, putting a penis “in front of my face.” Then comes this:
She remembers Kavanaugh standing to her right and laughing, pulling up his pants. “Brett was laughing,” she said. “I can still see his face, and his hips coming forward, like when you pull up your pants.” She recalled another male student shouting about the incident. “Somebody yelled down the hall, ‘Brett Kavanaugh just put his penis in Debbie’s face,’ ” she said. “It was his full name. I don’t think it was just ‘Brett.’ ”
It seems Ramirez is not entirely sure the man who allegedly exposed himself was Kavanaugh, but she claims to remember conduct right afterward by him that strongly suggests this to be the case.
What we still don’t know
The New Yorker piece adds that reporters have “not confirmed with other eyewitnesses that Kavanaugh was present at the party,” despite contacting “several dozen classmates.” What’s unclear is whether this includes the two men whom Ramirez herself identified, and the male who supposedly shouted Kavanaugh’s name. If those two were unwilling to confirm the plastic penis gag or that she lay on the floor after it happened, and if the third male has no recollection of shouting Kavanaugh’s name, it would amount to more than a mere failure to confirm Kavanaugh’s presence. These points will hopefully be clarified in coming days.
More broadly, the story claims that just after Kavanaugh got the nomination, his “college behavior had become a topic of discussion among former Yale students.” One man says Kavanaugh was “frequently, incoherently drunk.” One woman says that Mark Judge — whom Christine Blasey Ford claims was present during Kavanaugh’s alleged assault — is lying when he denies extensive horseplay toward women in the world of Georgetown Prep, Kavanaugh’s alma mater.
An FBI examination could help illuminate such things. It might not pass judgment on Ramirez’s claims, but it would conduct numerous interviews and report their content to lawmakers, giving them more information to work with to better assess the claims themselves. Such interviews could confirm to lawmakers what numerous classmates say about the episode itself — or about it not happening — as well as about Ford’s allegation and about Kavanaugh’s general conduct and the atmospherics at Georgetown Prep and Yale.
Kavanaugh’s burden of proof
Kavanaugh, as an individual, is of course entitled to a presumption of innocence. But this doesn’t settle the tougher question, which is what should be his burden when it comes to addressing charges such as these in the quest to be deemed worthy of being elevated to the Supreme Court for life.
Writing at the Atlantic, Benjamin Wittes suggests the burden is on Kavanaugh to dispel any “asterisk” over his name that such allegations have created, to preserve the court’s legitimacy, and because of the far-reaching influence over public affairs such an appointment brings. But who gets to decide whether that “asterisk” has been sufficiently dispelled, or if it has not, how that should weigh on his confirmation?
The answer is that individual senators get to decide this. They decide whether that asterisk has been dealt with, or whether dispelling it in the eyes of the country should even be a precondition for serving on the court at all. Kavanaugh’s testimony this week might be just persuasive enough to make Susan Collins of Maine or Lisa Murkowski of Alaska — or both — feel politically comfortable enough to back him, getting him to 50 or 51 Senate votes. But even if so, that asterisk could remain for much of the country.
Or here’s another approach: Collins and Murkowski could decide to place a high standard on whether this asterisk has been dispelled. The reality is that the standard Kavanaugh must meet is up to them. (It’s amazing that we take it as unremarkable that 49 Republicans will back Kavanaugh no matter what even under these conditions, but put that aside for now.) Thus, Collins and Murkowski could insist that only an FBI reexamination will meet that asterisk-dispelling standard, and refuse to support him until it is conducted. If they do not, it is they who have chosen to set this standard so low, and they should be asked to defend this.
Is it fair that a single person’s uncorroborated allegation can force an FBI investigation? In certain respects, perhaps not, but in this case two women have now alleged this behavior, and again, Kavanaugh is asking to be granted great influence over society and the rest of us.
And here’s the thing: The #MeToo movement is leaving it inescapable that we will need some kind of improved process for dealing with such charges in the context of Supreme Court confirmation fights. Perhaps we should come to see it as ordinary and necessary to re-involve the FBI when allegations like these reach a certain point. As Quinta Jurecic notes, what that point is must inevitably be contested, because it’s a complicated moral question. And a standard might develop in a case-by-case way over time.
But right now, it seems to have plainly been reached. Besides, even if bringing in the FBI risks being unfair to a candidate ultimately found guilty of no wrongdoing, can anyone reasonably say that doing nothing — and leaving the he-said/she-said question mark hovering over a lifetime appointment — is a better course? If so, that view, too, must be defended.
Right now it is on individual senators to decide the answer to that question — that is, to decide how high the standard in addressing that question mark will be. It is on two of them.