Whether or not Judge Brett M. Kavanaugh gets confirmed to the Supreme Court, there will be plenty of serious questions about the confirmation process that require answers. Assuming Kavanaugh appears at a hearing this week, Democrats can interrogate him. Moreover, all of this could be reviewed next year if Democrats win the majority in either house of Congress (and claim the subpoena power). Democrats may be keen to focus on the apparent skullduggery that transpired. If the inquiry takes place next year, conservative lawyer Ed Whelan, Mark Judge and any other witnesses who should have participated in the process may be called. There is plenty to look into.
The questions will include:
- Who came up with the mistaken-identity scheme?
- Who was aware of it?
- Did someone in the White House approve it?
- Did anyone in the White House or who played any part in the confirmation process discuss the mistaken identity hooey with Kavanaugh?
- Did Kavanaugh know about, condone and/or agree to the plot to blame someone else for the attack on Christine Blasey Ford?
- Did anyone in the White House have any concrete evidence someone else was the attacker?
- Who knew of the intention to falsely identify a classmate of Kavanaugh’s as the perpetrator?
- Did CRC (Creative Response Concepts), the public relations firm or another third party act as a go-between for Ed Whelan and the White House or staff for the Judiciary Committee?
- In days and days of “prep” at the White House with Kavanaugh, did anyone discuss the “blame someone else” gambit?
- Did anyone in the White House, connected to the Senate Judiciary Committee or involved in the confirmation process contact Mark Judge, an alleged witness to the attack, according to Ford?
- Did anyone suggest he not come forward to discuss his recollections?
These questions will not end if Kavanaugh gets on the bench.
Findings of wrongdoing in the confirmation process itself, if serious enough, are grist for impeachment or professional sanctions. (Only one other Supreme Court justice was impeached, Samuel Chase. He escaped removal in 1805.) There may be other crimes (e.g., witness intimidation, obstruction of justice) committed by third parties or Republicans inside the confirmation process. There may be Senate or White House staff whose conduct warrants their termination.
Moreover, what if under oath next year Mark Judge, or someone else, claims Kavanaugh was the perpetrator of the alleged attack, or that they drank to such excess it’s very possible the incident occurred even if they don’t (or choose not to) remember it? What if Ford files charges with Maryland law enforcement who then proceed to investigate a sitting Supreme Court Justice.
If this sounds far-fetched, it is because Republicans took the unbelievable step of pressing forward with a nominee against whom there was a credible claim of sexual assault and decided not to conduct a thorough investigation. What is truly far-fetched is putting Kavanaugh on the court with witnesses out there who haven’t been interviewed and potential avenues to investigate. There is a reason why we should only put on the court individuals about whom there is no ethical questions whatsoever. The way you ensure there are no ethical questions is by completing a thorough investigation. This is a recipe for chaos.
All of this points to the damage that may be done to the Supreme Court if Kavanaugh is seated through a rushed, incomplete and biased process. The potential for wrongdoing to be uncovered after Kavanaugh gets on the bench (either relating to the original alleged incident or to the confirmation process addressing Ford’s claim) is real. The injury to the court’s legitimacy would be substantial, and the embarrassment to the partisan hit-men involved in this cockamamie scheme would not be insignificant.