Republicans got their guy on the Supreme Court. But no one in Washington is satisfied with the way Brett M. Kavanaugh’s confirmation process played out.
That’s because Congress was forced to deal with something it was extremely ill-equipped to deal with: A sexual assault allegation that ran into one party’s desire to control the court for perhaps a generation.
Everything went wrong from the start. A constituent with a serious concern about Kavanaugh who wanted to remain anonymous could never have hoped to remain anonymous for long in that environment. Rumors of Christine Blasey Ford’s allegation that Kavanaugh sexually assaulted her when they were in high school circulated among Senate Democrats, but they could not prevent Kavanaugh’s nomination from moving out of the Senate Judiciary Committee.
A week before the committee’s vote on advancing Kavanaugh’s nomination, Sen. Dianne Feinstein (D-Calif.) appeared to have her hand forced by Democratic colleagues who wanted her to do something with the letter she had received. She made a cryptic public statement that she had handed something over to the FBI regarding Kavanaugh’s past, essentially confirming the existence of the allegation.
From there, the chase was on to find out who made the allegation. By that Sunday, Ford decided to go public as reporters invaded her classroom and her home.
Feinstein denies that her staff leaked Ford’s name. But the leak did send the potentially career-ending allegations against Kavanaugh into the public sphere at the last minute. Her fellow Democrats have said that Feinstein was in an impossible situation, and they’re right. There is no rule book in Congress for how to handle an explosive letter like that from a constituent. Where is the nexus between respect for a sexual assault victim, civic duty and politics? It arguably doesn’t exist.
After Ford said she wanted to testify, it was Republicans' turn to fail to grasp the sensitivity of the situation. Republican leaders said they were moving forward with Kavanaugh’s confirmation no matter what Ford said. Actually, it wasn’t even clear that they were going to hear her out in the first place. Sen. Jeff Flake (R-Ariz.), a swing vote, said he pressured fellow Republicans on the Senate Judiciary Committee to hold a hearing for Ford.
If the aim was to get to the truth, the hearing was a disaster. Republican senators wouldn’t even question Ford, hiring a prosecutor who had to question her in five-minute increments, punctuated by Democrats asking their own, partisan-tinted questions. “Was this a trial?” I wrote at the time. “A committee hearing? A spectacle? It felt like all three rolled into one.”
Polls showed that more Americans believed Ford than Kavanaugh. Yet politicians — mostly Republican, all male — couldn’t seem to stop saying egregious things about Ford. More accusers came forward with less-corroborated stories, and Congress had no idea how to approach those. What, outside of a careful law enforcement investigation, should determine whether an accusation against a Supreme Court nominee is credible?
The accusations handed Republicans a potent argument that Democrats were just making these up to tank Kavanaugh’s bid.
Ford rejected that in her testimony, saying that “I am no one’s pawn” and that she was “100 percent” certain Kavanaugh was her attacker. But Republicans, including Senate Majority Leader Mitch McConnell (Ky.), repeated it anyway. A Supreme Court seat, weeks before the midterm elections, was on the line.
Finally, as protesters tearfully confronted senators in elevators on live television and conservative men complained that an attack on Kavanaugh was an attack on them all, Congress asked for outside help. The vast majority of senators on both sides were too entrenched to make sense of a last-minute FBI background check related to Ford’s and one other accuser’s story.
In the end, Kavanaugh was confirmed by a razor-thin margin. We don’t need polls to tell us that irrespective of whether you wanted him on the court or not, the nation feels deeply divided.
“I urged the president to nominate a woman,” Sen. Ben Sasse (R-Neb.) said days before the final vote as he tearfully and hopelessly pleaded for America to separate the gender debate from Kavanaugh’s nomination. “Part of my argument then was that the very important #MeToo movement was also very new and that this Senate is not at all well prepared to handle allegations of sexual harassment and assault that might have come forward.”
He was so right. Kavanaugh’s confirmation process started off reflexively partisan. It morphed into something much more unwieldy: perhaps the biggest test yet in the #MeToo era of how much burden of proof to put on the accused, rather than the accuser. Congress, already torn and tired and entrenched in partisanship, was quite possibly the worst possible place to deal with this. And it showed.