As the maelstrom around the Kavanaugh nomination may perhaps be starting to draw to a close, a few impressions at the intersection of politics and policy:
- As indicated earlier, I submit that Judge Kavanaugh’s nomination should be denied because no one has brought forth a tenable reason why Dr. Ford would make up a claim — of which she has testified she is “100%” certain – when she knew that she would provoke the whirlwind which will now forever mark her life and impact the lives of her family. As far as I can tell, even Republican Senators don’t – as I understand Sen. Orrin Hatch said – find her “uncredible.” I ask my conservative women friends: If the roles were reversed, and you knew in high school a now-liberal male judge nominated to the Supreme Court by a Democratic President, would you make up an alleged assault, purely to prevent your former classmate from being elevated to the Supreme Court? And: how likely is it that even after 30 years, you would be mistaken about the identity of your assailant?
- To parrot a point admittedly made by numerous talking heads: While, subject to the outcome of the FBI investigation, a “He Said, She Said” situation appears to exist, this is not a criminal investigation; it’s a job interview. The “beyond a reasonable doubt” standard that would be appropriately required to convict Judge Kavanaugh of sexual assault isn’t required to withhold consent to his ascension to the Supreme Court; what’s required are sufficient grounds to conclude that we as a people should look elsewhere for our next Supreme Court Justice. That standard has – in my view – been easily met.
- I have been and continue to be disappointed at the majority of Republicans’ response to this controversy. Too many seemed obsessed by the timing of the presentation of the allegations. I consider the timing of the presentation of the allegations irrelevant – a red herring to stir up the conservative partisan base. I would have expected that the reaction of any Senator of either party to these allegations would have been: Is Dr. Ford telling the truth, or not? The truth, as well as it can be determined, is what matters – whether the allegations were brought forth months ago or minutes before the final confirmation vote. Sen. McConnell is already saying that the Senate will vote “this week.” Clearly, what he cares about is winning this fight, not truth or right – a shameful dereliction of duty on par with his failure to allow the Senate to consider President Obama’s nomination of Judge Merrick Garland. Virtually no commentators think Democrats will take control of the Senate in January, so presumably, if there is sufficient evidence of questionable behavior on Judge Kavanaugh’s part to dissuade a couple of Republican Senators from consenting to the Judge’s nomination, there are plenty of other conservative judges President Trump can nominate that will receive Senate confirmation in either this or the next Congress. Sen. McConnell nonetheless clearly believes that he can’t take the chance – which says to me (if we needed further evidence, which I didn’t) that he prioritizes partisanship over truth and fair process.
- I found Judge Kavanaugh’s testimony on September 27 disqualifying in two additional respects not evident in the earlier proceedings. First, conceding (as just about everybody that reads these pages is well aware) that the poster of these notes can be subject to his own Irish eruptions, and that those of us with vitriolic natures sometimes need a bit of tolerant understanding when we erupt, Judge Kavanaugh’s opening statement, in which he stated that the concerns regarding Dr. Ford’s allegations involved: “… a calculated and orchestrated political hit,” “apparent pent-up anger about President Trump and the 2016 election;” “Revenge on behalf of the Clintons”; and “millions of dollars in money from outside left-wing opposition groups,” was … unseemly and unsettling. This display of rank partisanship, no matter the provocation, is unfitting for a Supreme Court nominee and sullies the standing of the Court. His elevation will cause doubt throughout his tenure whether any litigant with a position contrary to his natural inclination will get a fair hearing. Second, and as important to me: although Judge Kavanaugh apologized thereafter, his response to Sen. Amy Klobuchar’s respectful question (given the circumstances) whether he had ever drunk so much that he didn’t remember what he had done the next morning was purely … bullying. He bullied her.
- Nevertheless, unless Mark Judge, the only person Dr. Ford places in the room with her and Judge Kavanaugh at the time of the alleged assault, substantially confirms Dr. Ford’s account, I’d consider it highly likely that Judge Kavanaugh will be confirmed. Mr. Judge’s concern if he untruthfully supports Judge Kavanaugh’s account: if Democrats assume a majority in the House of Representatives next January, they are very likely to commission a more thorough investigation of Dr. Ford’s allegations, which will certainly include checking with anyone that Mr. Judge might have talked to about the Kavanaugh-Ford incident. Any material discrepancy uncovered between Mr. Judge’s informal exchanges and his account to the FBI could well ultimately have serious repercussions for Mr. Judge … and then-Justice Kavanaugh.
- I find it ironic that Republican Sen. Jeff Flake – sufficiently a pariah in some circles within his own state’s Republican party that he chose not to seek reelection – has, despite Sen. McConnell’s myopic preoccupation with Judge Kavanaugh’s confirmation, perhaps saved a number of Republican seats in the upcoming midterms by forcing the FBI investigation of the sexual allegations against Judge Kavanaugh. We have been on the road, but even out in the great southwest, we sensed the paroxysm that would have resulted had the Republicans slammed through Judge Kavanaugh’s confirmation without investigation of or regard to, and perhaps in disregard of, Dr. Ford’s claims. Although the partisan skirmishing is continuing, some of the partisan steam seems to have been let out of the pot. Unless the FBI comes up with credible evidence to support Dr. Ford’s claim, not only will Judge Kavanaugh be confirmed, but Republican candidates in close races may escape the wrath that I submit might have been visited on them for a Republican process deemed partisan and incomplete by a substantial number of Americans.
If I were President Trump and Judge Kavanaugh’s nomination fails, I’d immediately nominate Judge Amy Coney Barrett, a conservative favorite. Unless there is anything disqualifying in Judge Barrett’s background that has so far been unreported, a rejection of Judge Kavanaugh will sufficiently vent liberals’ furor while stoking conservatives’ anger that Judge Barrett’s nomination will sail through.