The Supreme Court nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit had appeared to be a fait accompli. Until it wasn’t. On Sunday, we moved from the realm of mundane reality to the kind of fantastical twists and turns that seem ripped straight from the pages of an Allen Drury novel. Specifically “Advise and Consent,” his 1959 magnum opus about the torturous battle to confirm the liberal icon Robert Leffingwell as secretary of state. His nomination also appeared to be a done deal until someone from his past surfaced with grave accusations. In Leffingwell’s fictional case, it was an accusation of communist sympathies. In Kavanaugh’s real-life drama, it is an accusation of sexual assault.
Until now, I would have urged a Senate vote in favor of Kavanaugh despite my own disagreements and misgivings with and about him. As I have noted, I don’t buy Kavanaugh’s originalist pose as someone who will not impose his own political views from the bench. I fear that, if confirmed, he would dramatically curb or even overturn the line of abortion cases dating to Roe v. Wade. Just as troubling is his expansive interpretation of executive powers, which could lead him to support President Trump’s attempts to escape justice even as special counsel Robert S. Mueller III gains the cooperation of more of his aides. But there was no doubt that Kavanaugh is superbly qualified for the court, and his views place him solidly in the Republican mainstream. If he is disqualified on ideological grounds, then no conservative could ever sit on the court again.
My sympathy for him only grew with Democrats’ clumsy attempts to distort his words to pander to their left-wing base. Sen. Kamala D. Harris (D.-Calif.), for example, quoted him out of context describing contraceptives as “abortion-inducing drugs.” The Post’s fair-minded fact-checker, Glenn Kessler, dismissed this attack with four Pinocchios because it is clear that Kavanaugh was simply quoting the plaintiffs in an abortion case, not describing his own views.
I was also initially skeptical when word leaked late last week that a woman who had known Kavanaugh in high school had accused him of sexual misconduct. The allegation was old and anonymous. Unless a lot more came out, I thought Kavanaugh still deserved confirmation. But now more has come out, and I am no longer so sure of how this drama will — or should — play out.
A California professor, Christine Blasey Ford, has now told The Post her story of Kavanaugh’s alleged attack on the record: “Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth. ‘I thought he might inadvertently kill me,’ said Ford, now a 51-year-old research psychologist in northern California.”
Her story is amply documented: She told it in couples therapy all the way back in 2012, long before Kavanaugh’s nomination, and the therapist’s notes reflect that, even though they don’t mention Kavanaugh by name. She even passed a polygraph test administered by a former FBI agent in August. That may not be admissible in a court of law, but it has already been admitted into the court of public opinion. That makes Ford a credible witness and renders inadequate the denial issued by Kavanaugh last week: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.” Nor is the non-denial of Mark Judge, Kavanaugh’s friend who Ford alleged was present for the incident, sufficient to put it to rest. He simply said he has “no recollection” of these events.
If Republicans try to muscle Kavanaugh’s nomination through now, without any further investigation, they will be guilty of gross deflection of their duty to “advise and consent.” Given their narrow 51-49 majority, it takes only a few Republicans of conscience — paging Sens. Susan Collins (Maine), Lisa Murkowksi (Alaska), Jeff Flake (Ariz.), Ben Sasse (Neb.) and Bob Corker (Tenn.) — to force the majority to do the right thing. Which is to have the FBI investigate the incident, and, if as appears likely, the accusation is found to be credible, to call both Kavanaugh and Ford to testify under oath.
Will Kavanaugh stick to his blanket denial? Or will he now try to argue, at the risk of revealing his previous words to be “inoperative,” that while something did occur, it was not as bad as Ford remembered it? Perhaps he can make a case that this was a hookup gone wrong rather than an alleged sexual assault. Perhaps. But if Kavanaugh is revealed to have lied last week, that could do more damage to his confirmation chances than anything he did decades ago.
It is also imperative to do a more thorough background investigation to determine if this is an isolated accusation from decades ago or whether Kavanaugh has a record as a sexual predator. While egregious misconduct such as attempted rape should disqualify anyone from the nation’s highest court, we should be careful about interpreting a single ambiguous incident from high school in the worst possible light — lest we create a zero-defect standard that no human being can possibly attain.
I have not reached any conclusion about the Kavanaugh case. Except one: The Senate needs to slow down its pell-mell rush toward confirmation. Lifetime appointments on the nation’s highest court should not come with asterisks attached.
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