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Opinion Muscling through Kavanaugh’s confirmation isn’t an option

As Supreme Court nominee Brett Kavanaugh faces a sexual misconduct allegation, columnist Ruth Marcus asks, who's responsible for the burden of proof? (Video: Gillian Brockell/The Washington Post)

When the person accusing Judge Brett M. Kavanaugh of sexual assault was anonymous, Republicans’ immediate reaction was to insist that there be no delay in the Senate Judiciary Committee vote on his Supreme Court nomination. Well, a person with a credible story came forward. Republicans then put out a meandering statement complaining about the process by which the accusation came to light. (“It raises a lot of questions about Democrats’ tactics and motives to bring this to the rest of the committee’s attention only now rather than during these many steps along the way.”) That shouldn’t matter now that the allegation is out there with a person behind it. The question is whether the Senate should vote to put Kavanaugh on the court not knowing whether his flat denial is truthful.

When news of Christine Blasey Ford’s identity broke, Democrats swiftly called for an investigation. Senate Minority Leader Charles E. Schumer (D-N.Y.) put out a written statement insisting that Republicans “postpone the vote until, at a very minimum, these serious and credible allegations are thoroughly investigated.”

Max Boot: Republicans can’t try to strong-arm Kavanaugh’s confirmation anymore

Sen. Richard Blumenthal (D-Conn.) put out his own statement making clear the political perils of denying Ford an opportunity to be heard. (“I am committed to ensuring that she is heard, that her safety is protected, and that she is treated with respect. Over the last several days, I have been dismayed by my Republican colleagues’ callous dismissals of a sexual assault and the denigration of a survivor. Intimating that an assault is a mere political ploy not only offensively maligns Ms. Ford’s experience, it reinforces dangerous preconceptions that shame survivors into silence.”)

Sen. Sheldon Whitehouse (D-R.I.) said in his statement, “I admire the courage Ms. Ford has shown in coming forward with her story. … Kavanaugh’s blanket denial cannot be reconciled with her specific recollections, and the FBI needs time to take proper witness statements.”

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Then one voice of Republican sanity spoke up. The Post reports:

In an interview with The Post, [Sen. Jeff] Flake [R-Ariz.] said that Ford “must be heard” before a committee vote.
“I’ve made it clear that I’m not comfortable moving ahead with the vote on Thursday if we have not heard her side of the story or explored this further,” said Flake, who is one of the committee’s 21 members. Republicans hold an 11-to-10 majority on the panel and Flake’s opposition to a vote could stall the nomination.
Flake would not specify what form the communication with Ford should take or how he would vote at this point. But he emphasized the significance of the allegations.

Soon Sen. Bob Corker (R-Tenn.) joined the call to hear from Ford. By Monday, even White House counselor Kellyanne Conway declared: “This woman should not be insulted and should not be ignored. … She should be heard.” And so within 24 hours from the time her name was revealed, whatever plans the Republicans might have had (to ignore Ford or dare her to testify with the thought that she wouldn’t have the nerve to come forward) crumbled.

The notion that Republicans would play “hardball” with Ford was idiotic from the get-go. The politics of not investigating would be terrible for Republicans. They would risk Ford going public, running a media campaign against the nominee and transforming this into yet another miserable midterm issue for Republicans. Worse, if evidence were to come to light confirming her story after Kavanaugh is on the court, the prospect of impeachment of a Supreme Court justice would loom.

Without a full investigation, Democrats could simply say, “They didn’t even want to find out whether the allegation was true.” One can imagine, for example, the ads that Rep. Beto O’Rourke (D-Tex.) would run against Sen. Ted Cruz (R-Tex.), who sits on the Judiciary Committee. (The two have three planned debates.)

This is not to say that reopening the hearing is without risk for Republicans. Kavanaugh would have to answer tricky questions. (Is it possible this occurred because there were times you drank to excess?) Kavanaugh would not be able to do what he did time and again in the prior days’ hearings — evade, refuse to answer hypotheticals, claim lack of memory. Republicans — because they haven’t bothered to find out — don’t know whether Ford will be a compelling witness. Moreover, the kind of aggressive questioning Anita Hill underwent in the Supreme Court confirmation hearings of Clarence Thomas might, in the #MeToo era, come across as bullying, cruel and just plan anti-woman. (Republicans would be wise to designate one member or committee staffer to conduct questions, but chances are that they won’t, and at least one Republican will come across as a bully.)

Remember that Kavanaugh would be under oath, should he come back to testify. Statements in response to a whole slew of questions (Did he know Ford? Did he attend parties with drinking? Did he ever lose consciousness?) will be flyspecked. Any statements that are contradicted by other reliable evidence would be disastrous, both for his nomination and for his continued service on the U.S. Court of Appeals for the District of Columbia Circuit.

Throughout the hearings, Kavanaugh has had the ability to overrule his minders and offer to be more forthcoming, to put more information out there to satisfy critics. He could have called for the release of all of his White House documents. He could have been more candid about his views on everything from executive power to abortion. He could have offered to recuse himself from matters related to the Russia probe. It would have been big of him and would have helped to defuse the destructive partisanship that has overtaken the court. Instead, he showed himself to be willing to hide behind Republicans’ skirts. He might consider whether that is best for him, the Supreme Court and the country. Indeed, you’d think he would be anxious to step before the cameras to clear his name. In any case, increasingly it looks as though he’ll have no choice but to respond in public.

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