correction: An earlier version of this column misspelled the name of Sen. Lindsey O. Graham (R-S.C.). This version has been updated.
Why does it matter whether a then-17-year-old Brett M. Kavanaugh drunkenly tried to rape a 15 year old, at a house party, 36 years ago?
That question is implicit in all of the Republican defenses of the Supreme Court nominee.
The accusation amounts to “a little hiccup,” says Sen. Dean Heller (R-Nev.); a “drive-by shooting,” says Sen. Lindsey O. Graham (R-S.C.); and, generally speaking, a cheap “smear,” according to many other Kavanaugh enthusiasts.
The accusation is a distraction, such comments suggest, designed to draw attention away from Kavanaugh’s brilliant mind and impeccable legal credentials. It’s not just unreliable; it’s also irrelevant.
Because it is apparently not obvious to everyone, let’s examine why, in fact, it does matter whether Kavanaugh assaulted someone as an inebriated adolescent, why it does matter whether his denials are credible now — and why we should absolutely want an independent, nonpartisan investigation, perhaps led by the FBI, to ferret out the truth as fully as possible.
Some have argued that the accusation matters because confirming Kavanaugh without resolving it would sully the reputation of the Supreme Court, which should be populated by only the most morally upright. Or it matters because it serves to deepen the impression that the Republican Party sees victims of sexual violence as disposable. Apparently, someone accused of sexual assault can get a lifetime appointment to the world’s highest court if only their co-partisans shove the confirmation through aggressively enough.
But in my view, the accusation matters most because of what it implies about Kavanaugh’s general qualities not as a role model, or as a representative of his party, but what he might do as a judge.
Teenagers, particularly drunken teenagers, sometimes commit awful, cruel, even criminal acts — acts that can wound victims for decades. When possible, they should be held appropriately accountable. However, what provides more insight into a person’s moral rectitude is, arguably, not what he did as a minor but how he handles such sins once he has developed into a mature adult. Specifically, whether he takes responsibility and expresses contrition.
And if Kavanaugh is continuing — today, as a 53-year-old man — to deny a crime he in fact did commit as a drunken teenager, that casts doubt not only upon his character as a teen but also on his trustworthiness in other high-stakes matters today.
At present, there are reasons to doubt his credibility on this particular matter. Among them, somewhat ironically, is the improbable extensiveness of his denial, at least as relayed by Sen. Orrin G. Hatch (R-Utah).
Kavanaugh’s public statement thus far has been brief: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.” But Hatch has added another layer of comprehensiveness to Kavanaugh’s denial, saying through a spokesman that Kavanaugh personally told the senator he was “not at a party like the one [accuser Christine Blasey Ford] describes.”
Assuming Hatch is faithfully repeating this conversation, the assertion that Kavanaugh wasn’t at a party like the one described is at best fishy. After all, Ford’s own recollection of the alleged incident is hazy and offers few details — including where the party was — beyond the fact that it was a house with no parents present, where just a few teens were drinking and Kavanaugh’s close friend was present, probably in 1982. Sometimes Kavanaugh’s defenders cite this lack of detail to cast doubt on her credibility, but his denial, given the lack of detail, would seem at least somewhat discrediting of him.
More significantly, his evasiveness in other exchanges with senators — about, for example, receiving stolen information while working in the George W. Bush White House, or getting sexually explicit mass emails from a circuit judge who abruptly retired following sexual harassment accusations — have likewise called his candor into question. Perhaps the explanation is a willful blindness and not any duplicity. But that’s hardly a better quality to seek out in a Supreme Court justice.
The big possible lie we should worry about, in any case — and the one that seems more plausible in light of these other statements — would be his promise to be “a neutral and impartial arbiter who favors no litigant or policy,” who follows the Constitution faithfully and respects precedent.
If Kavanaugh lied to senators about not remembering parties or stolen memos or anything else, why would we believe he isn’t lying about his commitment to impartiality and precedent? Why would we believe him when he told Sen. Susan Collins (R-Maine) that he believes Roe v. Wade is “settled law”?
In a sense, the crux of the matter is not Kavanaugh’s character, or at least, not only Kavanaugh’s character. It’s what Kavanaugh’s character might tell us about how candidly he has characterized his jurisprudence.
Senate Republicans have set an artificial deadline of Monday for Ford to testify. They have also refused to order an FBI investigation in the meantime, or even to subpoena a witness Ford named. Perhaps one reason is that they don’t want to find out what evidence might turn up. And what dots the public might connect as a result.