Law & the Courts

An Eleventh-Hour Ambush 

Supreme Court nominee Judge Brett Kavanaugh listens at his Senate Judiciary Committee confirmation hearing on Capitol Hill, September 4, 2018. (Joshua Roberts/Reuters)

Brett Kavanaugh’s confirmation has, like that of Clarence Thomas before him, been thrown into chaos with an eleventh-hour allegation of sexual misconduct. Christine Blasey Ford, now a California professor of psychology, told the Washington Post over the weekend that Brett Kavanaugh sexually assaulted her at a high-school party in the 1980s. According to Ford, Kavanaugh and his Georgetown Prep classmate Mark Judge, both drunk, threw her in a room before Kavanaugh tried to take her clothes off and force himself on her. She says she escaped, hid in a bathroom, and left the party. He strenuously denies the allegation, as does Judge.

This is obviously a serious charge, but the evidence so far provided leaves us with grave doubts. She tells the Post she kept it a secret for years, meaning there is no contemporaneous evidence to support her account. She is unable to say exactly where or when the party was held, only that she believes it happened in the summer of 1982 somewhere in Montgomery County. She can’t recall how she got home afterward and her lawyer now says there was a fifth guest at the party who was not counted in Ford’s initial account. With so many missing details, her claims are impossible to independently evaluate.

That Ford’s memory of something that supposedly happened 36 years ago is fuzzy does not, in itself, disprove her story. But the stakes are high enough to require corroborating evidence. As our David French points out, the only evidence she has marshaled so far reveals a contradiction. Ford says she told her therapist about the incident in 2012, and she provided the Post with portions of her therapist’s notes. Though they describe an attempted rape, they do not name Kavanaugh or Judge, instead referring to four perpetrators “from an elitist boys’ school” who went on to high-ranking positions in D.C. Ford attributes the discrepancy to an error on her therapist’s part, and her husband says her description of the incident has remained consistent since 2012. Suffice it to say this is far from dispositive proof.

Now Democrats are demanding an FBI investigation, and invoking the specter of the Me Too movement. But there is no possible federal charge here, and the high-profile men who have been accused of predation over the last several months have generally been repeat offenders whose culpability was established by thorough investigative reporting. This is an isolated allegation that was kept under wraps for months until public pressure forced it to the fore, and there is extensive testimony as to Kavanaugh’s exemplary character.

There is a clear public interest in resolving this matter as quickly and thoroughly as possible, even if Democrats obviously want to delay past the November election. Senator Chuck Grassley has announced that Kavanaugh and Ford will testify under oath before the Judiciary Committee on Monday, delaying the confirmation vote that was scheduled for this Thursday. The committee should also determine what, if anything, Senator Dianne Feinstein was able to glean about the allegation since July, when she was forwarded a letter Ford wrote to Representative Anna Eshoo (D., Calif.) about the allegation. What was Feinstein’s rationale for keeping the allegation under wraps until the eleventh hour?

The hearing will probably degenerate into a political circus, given the theatrics at the first round of hearings even before a charge of sexual assault was on the table. The Democrats have conducted themselves disgracefully throughout this process, with their handling of this charge a new low and new depths sure to follow. But a public airing was unavoidable, certainly once both Kavanaugh and his accuser said they were willing to testify. We hope Republicans don’t blink from asking Ford tough questions about her account, even though such due diligence will be portrayed as rank sexism by Democrats and the media.

Absent any compelling new evidence that backs up the charge, we continue to strongly support Kavanaugh’s confirmation. We believe he’d make an excellent justice. In such a case, when emotions are high, a healthy republic should hew to basic principles of fairness. A good man and deserving judge should not be barred from the high court because of an unproven and almost certainly unprovable accusation of wrongdoing.

The Editors — The Editors comprise the senior editorial staff of the National Review magazine and website.

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