Law & the Courts

Call the Roll on Kavanaugh

Judge Brett Kavanaugh testifies before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill in Washington, D.C., September 27, 2018. (Win McNamee/Reuters )
It's time to see where each senator stands.

The Democratic strategy toward Judge Brett Kavanaugh has been apparent since September 4. Within minutes of Chuck Grassley calling the Judiciary Committee to order, Democrats began to interrupt him. They wanted to delay the hearing until their demands for documents had been met. They managed to prolong the hearing for about an hour. Then they retreated.

The objective was clear: Delaying the confirmation would be tantamount to defeating the confirmation. Why? Because if the delay lasted past Election Day, and if Democrats took the Senate, then the empowered minority could pressure two wayward Republicans into voting No. In January the Democratic Senate could block any subsequent Trump nominee — payback for Merrick Garland.

It didn’t seem to work. Emphasis on “seem.” Kavanaugh passed the initial rounds of questioning. What no one knew was that weeks earlier Dianne Feinstein had helped Professor Christine Blasey Ford secure legal counsel, and that Senator Feinstein possessed a letter that would, if leaked, reopen the confirmation process. Creating a new delay. And a much more serious threat to Kavanaugh’s nomination and to the prospects of the conservative legal movement.

Ford’s accusation of sexual assault became public on September 16. She expressed her desire to testify. So too did Kavanaugh — indeed, he was ready to deny her charges before the Senate the following day. Negotiations with Ford’s team, which lasted for more than a week, prevented that from happening. On September 22, Ford expressed her “commitment” to appearing before the committee on September 27. Within 24 hours of that agreement, both The New Yorker and Michael Avenatti surfaced fresh allegations against Kavanaugh, each claim more implausible than the last. Feinstein’s response? Another call for another delay.

This time Grassley said no. The hearing took place as scheduled. And what a hearing — one of the most dramatic in American history. Dr. Ford was a compelling witness. So was Kavanaugh. The eight hours of testimony were emotional, heated, contentious, and gripping. In the end we had learned little from the proceedings that we did not know already. Ford cannot say when the party was, or where, or who the fourth boy was, or how she got there, or how she got home, some 20 minutes away by car.

The individuals named by Ford as attending the party in question have communicated to the committee, under penalty, that they have no recollection of such events. Ford’s good friend, Leland Keyser, says in addition that she does not know Kavanaugh — though she also told the Washington Post that she believes Ford’s story. For his part, Kavanaugh denied the allegations, and provided the committee detailed calendars of the summer in which the attack is said to have taken place. While not dispositive, they show no record of such a gathering.

What to do? Again, the Democrats want to delay the process at least until the FBI has investigated Ford’s story. They have no good answer when it is pointed out that the FBI would merely conduct the same sort of interviews the majority staff of the Judiciary Committee has been conducting — interviews in which the minority staff has not participated. More than three decades after the events in question, with no forensic evidence and so few details, the FBI would be left where all of us are. In the dark. Caught between a woman who is “100 percent” certain Brett Kavanaugh assaulted her, and a man who is “100 percent” certain he did not.

In the end, as the Democrats reminded us, the Senate Judiciary Committee is not a court of law. It is up to the Senate to decide whether Dr. Ford’s charges disqualify Judge Kavanaugh from the Supreme Court. Many senators of both parties seem already to have made up their minds. I can’t tell you where the undecided will fall, or whether Judge Kavanaugh will become Justice Kavanaugh. Events have moved too quickly for predictions. Kavanaugh may still get through. He made a strong case for his innocence.

What is clear is that the Senate must vote, up or down, on Kavanaugh’s nomination. One way or another, the roll must be called. Yeas and Nays must be recorded.

For two reasons. The first is political. If Republicans walk away from Kavanaugh now, especially after Lindsey Graham’s philippic, the conservative grassroots will revolt and the midterm election will be an unmitigated disaster. According to polls, the GOP has already lost the middle. It cannot afford to lose the right. The base is the difference between no wave and a blue wave, between a blue wave and a tsunami. Let each senator say what he or she believes, and record that judgment by vote. Even if the nomination fails because no Democrat votes yes and two Republicans vote no, that is a better outcome for the GOP than no vote at all. Conservatives expect to be disappointed by individual Republicans. No vote? Conservatives walk away.

The other reason to call the roll is more abstract. This story is about more than an allegation of sexual assault. It has become a matter of political precedent. The public deserves to know the Senate’s position on the following question: Are uncorroborated allegations, sometimes made anonymously, from high school and college enough to disqualify men and women from appointed office? Are we prepared to establish a standard by which appointees are judged by comments in a high-school yearbook, statements from classmates 30 or 35 years ago, and attendance at student parties where alcohol was consumed?

If we are to go down this road, then we should know where each of the 100 men and women elected to the United States Senate, including Susan Collins, Lisa Murkowski, and Jeff Flake, stand at the outset. How else will we be able to apportion blame when the three Furies arrive? Because they are on their way.

This piece originally appeared in the Washington Free Beacon.

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