Extending the Kavanaugh Hearings Is a Losing Game

By | 2018-09-18T22:52:32+00:00 September 19th, 2018|
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A last minute accusation threatens to torpedo Brett Kavanaugh’s Supreme Court nomination. Before the Senate Judiciary committee, Kavanaugh thus far has appeared intelligent, a well-reputed jurist, as well as a doting father and husband. His colleagues, and even his adversaries, spoke highly of him. In contrast, the impotent rage of his Democratic inquisitors was vulgar and embarrassing. Now it appears the Republicans have fallen into a “no win” trap.

Through the machinations of such friends as the flakey Jeff Flake, they have agreed to delay a vote on the nomination in order to conduct a day-long kangaroo court complete with dueling testimonies by Kavanaugh and his accuser, Professor Christine Ford. Whether Kavanaugh ultimately is confirmed or not, conceding to this hearing will prove to be a mistake.

This Hearing Will Not Be a Truth-Finding Process
The hearing will be a blow to basic principles of due process and fairness. The allegations that Senator Dianne Feinstein held in reserve were not aired during the regular hearings and relate to events alleged to have occurred some 35 years ago between high school students. If this had ever resulted in a criminal conviction, it would be forgiven and expunged, a testament to the immaturity of youth and the possibility of redemption.

And supposing such a thing had happened after Kavanaugh was an adult: the sheer lapse of time is important. Ordinary criminal and civil cases are rightly bound by statutes of limitations. Memories fade, evidence disappears, and witnesses become impossible to identify. Professor Ford apparently has said she cannot even remember where the attack took place. Further, there is little corroboration: no statements to friends, family, doctors, police, or anyone else in the aftermath of the event.

Even absent corroboration, the allegations, such as they are, are vague and indistinct, possibly a dressed up memory of what was only an awkward and failed attempt to make out. The letter she wrote—you can read it here—paints a dark picture, but a lot is missing considering that the accuser is trying to tank a Supreme Court nomination.

I won’t say this definitely did not happen. I wasn’t there. It’s not beyond the realm of possibility. But this lack of direct knowledge applies with equal force to the entire Senate Judiciary Committee. They should have many doubts ranging from concern about motive (the accuser is apparently a partisan Democrat), to her credibility (she only revealed this to a therapist in 2012), to plausibility (it sounds like the “evil frat boys” stereotype we saw collapse in the Duke lacrosse and University of Virginia witch hunts), to the most obvious: this event and this accuser stand alone. We are supposed to believe that Kavanaugh, who has lived a sterling and careful life, acted badly with a young lady . . . but only once.

While we can never know for sure what happened, we can be sure that the scheduled hearings will bring us no closer to the truth.  She will say something terrible happened, and he will deny it. The other person supposedly present may also show up to deny it.

This will be typical of congressional hearings, and quite unlike our entire civil and criminal justice system, which is premised on burdens of proof and procedural rules that protect the accused. The entire spectacle will instead become a barometer for the audience’s and inquisitors’ virtue: do you believe women or not? In other words, are you on the side of truth, justice, feminism, and the American way, or are you on the side of the sexist, retrograde America of Trump and yesteryear? The ordinary concerns for due process, the presumption of innocence, and common sense will have little weight. By having the hearing, Republicans will accept implicitly the leftist premises about the new feminist model of “believing women,” while rejecting the old American principle of presuming innocence. Worse than this moral and political failing, they also naively believe that they can win the game on the merits, when the result is already foreordained.

The Hearings Will Look Terrible for Republicans
Not only will the hearings do little to bring the Senate or the country closer to truth, additional hearings will prove to be a political loss for Republicans, especially for Trump. In general, people do not approach the world solely or even primarily through the realm of ideology. They have other sources of identity and concern.

The image of mostly male, powerful Republican Senators at times aggressively questioning an otherwise-accomplished woman will likely cause many viewers to feel sympathy for Ford. After all, Republican or Democrat, there is a broad coalition of professional women who are sympathetic to the dictates of feminism. Even beyond that, many have dealt with jerks in their dating lives and professionally. Recent stories from the #MeToo movement strike a chord because such things do happen. And for those to whom they have happened, the instinct is to be sympathetic when another complains of it.

For them, the hearings will evoke the imagery of David versus Goliath. The accuser’s victimhood will be reinforced by her subordinate posture at the hearings. The senators all will profess their desire to treat her with respect and dignity, but any search for truth sometimes has to get aggressive. It can be uncomfortable. Of course, it would be hard for anyone this time around to top the obtuseness of Alabama Senator Howard Heflin asking Anita Hill if she was a “scorned woman.”  It is likely, though, that some senators will be aggressive enough to turn off sympathizers while failing to be aggressive enough to follow through and get at the truth.

There will also be no pivot to any broader political concerns, because no one will question the seriousness of what a drunk 17-year-old may or may not have done at a party 35 years ago. Feminism, with its contradictory puritanism and liberation of female sexuality, will not be on trial.

Of course, this could backfire for the anti-Kavanaugh crew. Ford may come across as obviously partisan or otherwise unbelievable. But that’s a long shot. More likely, I suspect she will claim the mantle of righteous victimhood and portray herself as sacrificing her privacy for the public good and the need for this never to happen again. We’ll all conveniently forget that she will soon have a lucrative book deal and will become a hero to the ideological left.

Anita Hill Hearings Did Not Help Republicans
I remember the 1991 Anita Hill episode vividly, but a lot of voters, and certain process-minded Republicans, may not. The Anita Hill hearings damaged Republicans and enthroned feminism. They ushered in the “year of the woman.” One reason Clarence Thomas was confirmed was that he had a counterattack; he suggested the entire charge of sexual harassment was a “high tech lynching.” In other words, he charged racism in response to the Democrats’ and Hill’s charge of sexism. Kavanaugh has no such weapon. The polite and sometimes anti-Trump Senators do not either. And, unlike Trump, they do not have the balls to question the whole premise of this investigation as both irrelevant and unfair under the circumstances.

Looking back at the Anita Hill testimony, it’s not obvious that she was lying. She appeared sincere and was a likeable enough witness. We also know Clarence Thomas has been a tremendous Supreme Court justice. But Hill’s charges placed a cloud over him; one can never fully restore his reputation after such allegations, whether they are true or false.

I suspect Anti-Trump Republicans somehow think they can thread the needle, separating themselves from the president, getting the justice they want, while achieving their own goals of self-promotion through these hearings. But this is a funny time to do so. Until now, almost the entire Senate had achieved a modus vivendi with Trump on judges. Getting sucked into this pointless drama shows how little they actually care about results and that they have never understood the stakes. For years, they have insisted that judges and the courts were a  source of Republican unity. But they become weak-kneed and irresolute at the least bit of pushback.

Republicans are going to lose either way next week, because the game is rigged. Either Kavanaugh will be deep sixed by fence-sitters like Senator Collins and Senator Flake, and this may drag the process out past the midterms—or he will be confirmed, but Democrats will use it as a rallying cry during the midterms suggesting Republicans don’t care about sexism and don’t believe women. A horrible precedent will be set, allowing last-minute, unprovable, salacious allegations to block well-reputed judges to the higher courts.

In other words, by treating this as a serious allegation and the process as a serious means to explore it, the Republican leadership are granting their political enemies a tool with which to destroy anyone whom they disfavor.

Senate Republicans would all be better off taking a page from Trump’s book, refusing to bend, rejecting the premise, and attacking this whole Kafkaesque regime, whereby unprovable allegations can destroy a worthy man’s career simply by being uttered. That, of course, would take courage and clear thinking. Needless to say, both are in short supply among Republicans in the Senate—and everywhere else.

Photo Credit: Aaron P. Bernstein/Getty Images

About the Author:

Christopher Roach
Christopher Roach is an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.