Philosophers take particular pleasure in posing questions with no ideal answer — “dilemmas,” as they are known in logic. Often, these are highly artificial. In his criticism of Immanuel Kant, for example, Benjamin Constant maintained that absolute honesty cannot be a rule and proved it with this dilemma: If you were hiding your best friend from a murderer and the madman came to your door, how would you answer when he demanded: “Is your friend here?”
The dilemma facing the Senate next week presents two bad options, but these are painfully real. On Monday, the Judiciary Committee is expected to hear competing testimony from Supreme Court nominee Brett M. Kavanaugh and Christine Blasey Ford, who accuses Kavanaugh of sexually assaulting her when they were teenagers in the 1980s.
He says it didn’t happen; she says it did. You can be sure that Kavanaugh’s opponents will spare no effort in their search for another accuser to tip this balance. But if things remain as they are, the hearing will probably end without proof one way or the other.
We can expect no contemporaneous documentation, because Ford says she told no one of her experience until decades later. Nor can we expect a credible eyewitness, because the third party allegedly present behind the locked bedroom door later wrote a book documenting his blackout drinking as a teenage alcoholic.
The choice — the dilemma — will be whether to block the rise of a widely respected judge based on something he might (or might not) have done as a juvenile, or to promote to the highest court a man accused of trying to rape an underage girl. Either choice presents the acute possibility that a grave injustice will be done.
Making things worse: Either choice is sure to reverberate. A decision to block Kavanaugh would surely add a new, arguably unhealthy, dimension to the ugly judicial wars already disfiguring the Senate. The first high-profile nominee brought down by disputed misconduct in high school would probably not be the last.
I don’t say this because “boys will be boys” — a blithe slander on the character of boys generally. I say it because adolescent boys and girls often address their awkwardness with alcohol, and sexual inexperience plus inebriation is a time-tested recipe for regrets and misunderstandings.
But a decision to confirm Kavanaugh under these circumstances portends further damage to the already battered credibility of the Supreme Court. I happen to believe the nominee when he says Roe v. Wade is an “important precedent” he would be bound to respect. However, should he become the fifth deeply conservative vote on the court, the nation will surely be treated to a parade of cases seeking to narrow the right to abortion. The definition of an “undue burden” on a woman’s most intimate rights would become the province of five men, 40 percent of whom (counting Justice Clarence Thomas) would have been narrowly confirmed after contentious airings of their alleged misogynistic behavior.
How, exactly, are women supposed to feel about that? And how, exactly, did the conservative movement blunder into this demoralizing position?
In 1981, President Ronald Reagan nominated Sandra Day O’Connor to be the first woman on the Supreme Court. Since then, Republican presidents have had eight chances to promote another woman, and they’ve whiffed every time. (George W. Bush made a botched attempt in 2005; dissent from his fellow Republicans caused then-White House counsel Harriet Miers to withdraw from the confirmation process.)
Instead, their idea of a justice seems to be getting narrower rather than more inclusive: If Kavanaugh scrapes by, every Republican justice named in the 21st century will have been a white male judge from a federal appeals court. Half from Harvard Law School, half from Yale Law School. It’s not that there are no conservative women qualified to join the high court. With every vacancy, names of outstanding women are floated on trial balloons, only to burst somewhere inside the Oval Office.
Appointing a woman should have been a natural for President Trump, whose sister was a longtime judge on the U.S. Court of Appeals for the 3rd Circuit. After all, conservative women continue to be a key part of his base constituency. Instead, he went with Kavanaugh, a highly pedigreed, highly experienced, highly vetted darling of the Federalist Society — just like the ones before. But in his case, a disputed skeleton has fallen from his closet.
It’s unimaginable that Kavanaugh would have been the pick if Ford’s accusation had been known last spring. And this suggests a least-bad solution to the Senate’s dilemma. Kavanaugh can put the country ahead of his personal ambitions. While maintaining his innocence, he can withdraw for the sake of the court’s credibility. He can continue his distinguished service on the second-highest court in the land. And Trump can, at last, nominate a woman.
Read more from David Von Drehle’s archive.