On Thursday night, a conservative legal scholar took to Twitter to suggest a man who looked like Brett Kavanaugh, rather than Kavanaugh himself, might have sexually assaulted Christine Blasey Ford 36 years ago. The scholar, Ed Whelan, even named the man and provided a recent picture. He specified that he wasn’t accusing the man of anything, but Whelan’s implication was unmistakable.
On Friday morning Whelan apologized for outing the man (but not his broader theory). But not before “Fox and Friends” aired his theory as a plausible one, and not before it had furthered the emerging suggestion by Kavanaugh supporters that this is a case of mistaken identity. You can’t totally un-ring that bell — either for the man Whelan shoved into the national spotlight or for conservative voters anxious to latch on to a Kavanaugh alibi. It’s not unreasonable to think the whole thing will help Kavanaugh.
It also epitomizes how the Kavanaugh imbroglio has become extremely ugly — and is likely to get even uglier.
For one, the stakes are so high that it’s easy for partisans to justify pretty much anything to themselves, including prejudging the outcome and putting nonpublic figures through the wringer. This is the man, after all, who could shift the power of the U.S. Supreme Court for years to come, at a time when the Supreme Court is increasingly more consequential than Congress.
The second thing that makes all of this so ripe for overextension is the lack of evidence. It’s almost certain we’ll never know 100 percent whether this happened 36 years ago, which makes politicians less concerned about overreach. If they know they’ll never have to eat their words — and that they’ll always have some plausible deniability built in — they have less reason to be careful.
And the third thing is timing. All of this is severely complicated by the November election. Republicans know they could lose the Senate, and while they could probably confirm someone else in the lame-duck session if the Kavanaugh nomination falls through, that’s a big risk for them — and provides Democrats with a ready-made talking point, given that Republicans said in 2016 that Merrick Garland shouldn’t be confirmed until the voters had spoken.
The result is what we saw Thursday night.
“It is regrettable that private citizens are being drawn into this,” Whelan said Thursday night, mid-tweetstorm, in a tweet that was somehow both self-aware and extremely un-self-aware. “But that is the product of [Senate Judiciary Committee’s top Democrat Dianne] Feinstein’s shockingly shoddy handling of the whole matter.”
In other words: She made me do it. The fact that a politician didn’t bring this forward sooner means I had to do this thing that I’ll admit is really desperate.
You can see this on a smaller scale when it comes to prejudging of the outcome. Senate Majority Leader Mitch McConnell (R-Ky.) said at a religious conservatives conference Friday morning that, “In the very near future, Judge Kavanaugh will be on the United States Supreme Court.” The chief counsel for Republicans on the Senate Judiciary Committee also tweeted that the staff was “unfazed” and “determined” (he later backed off that). All of this comes despite Republicans saying for days that Ford needs and deserves to be heard, and the fact that she hasn’t yet been heard.
On an even smaller scale, we’ve seen opponents of Kavanaugh’s nomination suggest that both him hiring a lawyer and not asking for an investigation of himself suggest he’s guilty. “Is that the reaction of an innocent person?” Sen. Kirsten Gillibrand (D-N.Y.) said of the latter development. “It is not.”
With the stakes so high, the facts so fungible and the clock ticking louder, it’s almost a perfect storm for ugliness. And it’s hardly over.