Law & the Courts

Brett Kavanaugh’s Kafkaesque Nightmare

Supreme Court nominee Judge Brett Kavanaugh is sworn in at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Chris Wattie/Reuters)
His exemplary reputation should outweigh a charge that is unproven and, as far we know, unprovable.

If Franz Kafka had written about confirmation hearings, he couldn’t have come up with a better scenario than the one now unfolding in the U.S. Senate. 

Brett Kavanaugh, who the day before yesterday was an unimpeachable pillar of the legal establishment, stands accused of a heinous offense that is almost impossible to definitively rebut.

Even if he is completely innocent of the charge that he sexually assaulted a teenage girl at a high school party 35 years ago, he will be forever considered guilty of it by some portion of the public. This is not due process, or any kind of decent process at all, but how the Senate conducts its business, especially if you are a conservative jurist on the cusp of confirmation to the Supreme Court.

A 51-year-old research psychologist named Christine Blasey Ford went public with the accusation in a Washington Post interview over the weekend, saying she feared for her life when the teenage Kavanaugh attacked her. 

The charge was inevitably viewed through the prism of #MeToo. But it lacks the credibility of allegations that have felled powerful men over the past two years. There is no contemporaneous corroboration. There is no pattern of conduct on the part of Kavanaugh. There is no weaselly, “Well, I don’t remember it that way, but I’m sorry if she was offended” denial; Kavanaugh rejects the charge categorically.  

Contrast the allegations against, to take a Republican from another moral universe, the Alabama Senate candidate Roy Moore. A key accuser from decades ago told friends about her relationship with Moore at the time. There was more than one allegation — indeed, Moore had a reputation for unsavory interest in teenage girls. When he first reacted to the stories, Moore gave a mealy-mouthed denial. 

Ford’s memory is so fuzzy that there is very little in her story that can be corroborated or debunked. She doesn’t know what year it happened, although she thinks 1982. She doesn’t know who owned the house where the party took place, or how she got there or how she got home. 

It is impossible to disentangle with certainty what may or may not have happened in the early 1980s. Maybe Ford fabricated the entire story, although she told a therapist in 2012 about such an incident. Maybe her memory is faulty, as happens more than we realize. Maybe there was a drunken encounter that she only later came to consider a trauma. Or maybe what she alleges really took place. 

What Ford describes is monstrous behavior, by any account. She says that Kavanaugh pushed her into a bedroom and onto a bed, held her down and tried to rape her, and put his hand over her mouth to muffle her screams. He and a friend were laughing, before his friend stopped Kavanaugh (the friend denies the incident took place). This is not a drunken escapade but a callous, calculated criminal assault. 

If someone is capable of such a thing, even as a teenager, it is a black mark against his character. And character is usually destiny. It is no accident that the men taken down by #MeToo are invariably repeat offenders. 

Not only is there no other allegation against Kavanaugh, the assault charge runs against everything we know about his personal and professional life, as attested by everyone who has known him. His exemplary reputation, earned over the course of decades and a matter of public record, should outweigh a charge that is unproven and, as far we know, unprovable. 

The confirmation process for the Supreme Court has long been badly broken, a forum for sheer blood sport. If, based on what we know now, this accusation keeps Kavanaugh from the Court, it will be a new low. The Senate will have embraced a new world where the existence of an allegation, regardless of whether it can be proven, is enough to stop a nominee and destroy his good name.

© 2018 by King Features Syndicate

 

Rich Lowry — Rich Lowry is the editor of National Review. He can be reached via email: comments.lowry@nationalreview.com. 

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