Law & the Courts

Yes, Rejecting Kavanaugh Now Would Disgrace Him

Supreme Court Justice nominee Brett Kavanaugh meets with Senator Rob Portman (R, Ohio) in the Russell Senate Office Building in Washington, D.C., July 11, 2018. (Leah Millis/Reuters File Photo)
He would be known forever as a jurist whom the ‘world’s greatest deliberative body’ deemed too likely to have been a monster to confirm.

No one is entitled to spend the remainder of his life in public authority.

That’s true.

Would being rejected by the Senate for the Supreme Court really be so bad for Brett Kavanaugh?

In this context, yes.

A number of people, including friends, from across the political spectrum have analogized the Senate confirmation process to a job interview, saying that perhaps Kavanaugh’s nomination should be withdrawn on grounds of weighing the risks and harms. In light of Christine Blasey Ford’s accusations against him, the potential harm to Kavanaugh is only a lost job opportunity, they say, while the potential harm to the United States is in having a reprobate as a sitting member. Drop him, it’s just a matter of risk management.

Writing at the Huffington Post, Melissa Jeltsen also takes up the job analogy :

We have arrived at the stage where people are hyperbolically lamenting the apparent destruction of a powerful man’s life, while ignoring the potential consequences of the alleged assault on the victim herself. To be clear, Kavanaugh is not facing criminal charges or prison time. No one is saying he should disappear from public life. At most, some are wondering if a person who may have tried to rape a young girl should not get the privilege of a lifetime appointment to one of the country’s most powerful institutions. He is not entitled to a Supreme Court seat; this is, in essence, a job interview.

First, it’s an odd argument. The accusation is so serious that he should be denied the Supreme Court seat, but its not so grave that anything else in his life should otherwise be ruined. No one is asking him to disappear from public life? If Kavanaugh were merely charged with having some of the more common faults of 17-year-old young men, being a crude boor and capable of being fantastically insensitive, callow, and impudent, especially among peers, it would be silly to cast him out of public life now.

But if he did try to forcibly rape Ford, muffling her screams for help, and then lyingly denied it during this vetting of his nomination, then he really should not have a job as a judge on the D.C. Circuit court. It seems like those advancing the above argument are trying to fine-tune it merely to accomplish a desired end, which is delay the ability of Donald Trump to confirm a Supreme Court nominee before the November elections. When they fiddle with the argument this way, the logic of it breaks down.

Job interviews are not normally done on television or conducted across the front pages of all the nation’s most important news publications, in view of a relatively attentive public. Job interviews do not usually attract people who haven’t seen you in decades, accusing you of felonies. Hiring managers are not tasked with deciding what the preponderance of evidence and testimony is or how their expected decision on your hiring is changed by such an accusation.

Although the accuser, Professor Ford, said she wanted to preserve her privacy, the Senate office that had a responsibility and the tools to protect her anonymity while investigating her claims leaked her accusation to the press. By doing so when his nomination seemed likely to pass during the following week, Senator Dianne Feinstein’s office assured that the rejection or approval of Kavanaugh’s nomination would put the weight of the U.S. Senate behind a judgment on the credibility of Ford’s accusations.

So it is very true that the Senate confirmation process will not end in depriving Judge Kavanaugh of his liberty. But denying him confirmation at this point because of these charges is a severe public disgrace. He would go into the history books, back to his current position, and back to his family having been deemed by the “world’s greatest deliberative body” to be too likely to have been a monster to confirm.

This matter of respect also means that if Ford is willing to offer her accusations in a sworn statement, or with sworn testimony, the Senate should do her the courtesy of vetting her claims seriously. If she is not willing to offer this much, the process by which these grave accusations were put into the media should be considered a stunt, and a vote should be held.

There is no sure way of absolutely controlling public opinion. And partisan furies being what they are surely means that, whatever testimony emerges in the next days and weeks, there will always be some people devoted to the idea of Kavanaugh’s innocence or his guilt in this matter. But the Senate should not, after a process so irregular, and as a matter of “risk management,” let itself be used to disgrace anyone’s reputation.

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