“So, would you vote to confirm?” a conservative friend emailed me on Thursday. Like me, my friend has been torn over that question, watching fearfully as the rest of the country ripped itself apart over the Supreme Court nomination of Judge Brett M. Kavanaugh.
I didn’t have an answer then, and I’m afraid that a day later, I still didn’t. But Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) found theirs. On Friday afternoon, in a 45-minute speech on the Senate floor, Collins, a moderate Republican, laid out her case.
She berated outside groups and Senate colleagues who had reflexively opposed Kavanaugh before they even knew who the nominee was, and she derided a confirmation process that “looks more like a caricature of a gutter-level political campaign than a solemn occasion.” Collins also tore into “outlandish” gang-rape allegations made by Julie Swetnick. The senator then carefully made her way through Kavanaugh’s rulings and judicial philosophy. Finally, she expressed a hope that “Brett Kavanaugh will work to lessen the divisions on our Supreme Court,” concluding: “Mr. President, I will vote to confirm Judge Kavanaugh.”
Moments later, Manchin’s office announced that he, too, would vote to confirm. Barring a last-minute shift, it looks as though Kavanaugh will be confirmed 51 to 49, with one Democratic vote. And I still don’t know which side is right.
Putting Kavanaugh on the court under these circumstances will outrage the left half of the political spectrum, undermine the already shaky legitimacy of the court, and touch off a political firestorm if Kavanaugh becomes the fifth vote to overturn Roe v. Wade . But keeping him off the court, under these circumstances, would have outraged the right half of the political spectrum, undermined the already shaky legitimacy of the judicial confirmation process and laid out a playbook for derailing future confirmations, possibly escalating the Court Wars to disastrous new heights.
Nor do the horrifying ramifications stop at the Washington city limits. Inevitably, confirming Kavanaugh will send a chilling message to victims of sexual assault: You can come forward, endure a traumatizing public hearing process — complete with death threats and shameful social-media abuse — and find that it is all for naught.
Then again, thanks to the 11th-hour revelation of Christine Blasey Ford’s allegations, through what was almost certainly a strategically timed Democratic leak, Kavanaugh, too, was subjected to an unimaginably humiliating public ordeal. Not just social media, but the regular media, spent weeks strongly suggesting that Kavanaugh was a sex offender. Had his nomination been rejected based on decades-old allegations that could neither be verified nor falsified, it would have radically delegitimized the #MeToo movement on the right.
No, there was no good outcome to be had. The partisan divides will deepen; the nation’s wounds will fester into purulence.
If there is one thin, bright light in all this, it is that the Kavanaugh vote will be bipartisan. Only in the narrowest possible sense, with one Republican senator — Lisa Murkowski of Alaska — likely to vote no, and a lone Democrat voting to confirm. But a straight party-line vote would have been even worse and, these days, we have to count the smallest blessings.
The other thin light, considerably fainter, is the hope expressed by Collins that Kavanaugh might actually work to lessen the deep divides on the court. I don’t expect it. But I do hope.
Regardless of what may or may not have happened more than three decades ago, I do not think Kavanaugh deserved the way the leakers of Ford’s letter stage-managed this process into a public trial. He didn’t deserve to have so many journalists convict him before they had collected evidence — or had even quite settled on the crime. Nor the abuse that partisans lavished on him and his family. It would be only human if Kavanaugh looked on those people and their arguments with an unfriendly eye.
But that would be disastrous for the republic, of which he is now one of the chief stewards. So I hope that when he becomes Justice Kavanaugh, he will remember what the past three weeks revealed: just how much rage is waiting to erupt at a moment’s notice, and just how frayed are the ties that bind us together as a nation. I hope that, having seen how bad things can get, he will be wary of any sweeping action that makes them worse.
And because I am an optimist, I even dare hope for one more thing: that one day, when Justice Kavanaugh finds himself hearing the appeal of some criminal defendant, he’ll think back to his own moment in the dock. And that, remembering how it felt to be facing a hostile jury with his entire world hanging in the balance, he’ll find a little extra room for mercy in the law.