The Corner

Politics & Policy

Democrats and Media Clamor for a Background Investigation — But the Wrong One

Supreme Court nominee Judge Brett Kavanaugh testifies during the second day of his confirmation hearing before the Senate Judiciary Committee, September 5, 2018. (Joshua Roberts/Reuters)

Are they doing it by design, consciously mapped out, or is it their Punchdrunkedness — jabbing in desperation, trying to find something that will produce an effect? Or can it be that the Democrats and the media cannot see that the only background check that makes sense at this moment is the one they have conspicuously avoided even mentioning: the need to check the background, the stability, the truthfulness, the integrity of the one making the charges. Hillary Clinton has declared that Professor Ford deserves “the benefit of the doubt.” But on the face of things, why should that be? What do we know of her, in comparison to the record of a life, professional and personal, that has now been documented for Brett Kavanaugh running back more than 30 years? In all strictness, he is not the one who needs to do more “’splaining,” in the haunting words of Ricky Ricardo.

She cannot be subjected to a background check, for she has not been nominated to a federal job. The only ones who could gauge her veracity would be the members and staff of the Judiciary Committee — if they were permitted to engage in the kind of strenuous cross-examination that the gravity of the charges would warrant. But now we hear the argument that it would simply deepen the assault on this woman to ask her to justify her charges and stand up to the kind of interrogation that the Democrats had no qualms about visiting upon Mr. Kavanaugh. What we are hearing, in effect, is the same argument that was projected into the colleges and universities under Title IX by the Obama administration: It would deepen the assault on the woman to make her stand up to any questioning offered by an accused male as he seeks to defend himself against charges that would blight his life. As David French has noted, those arrangements would be radically at odds with the moral premises that are bound up with the very logic of the “rule of law.” The disgrace is that it took the advent of Betsy DeVos at the Department of Education to begin the unraveling, on the campuses, of this ruthlessly anti-legal regime.

But the maddening thing now is that the Republicans, in their fearfulness, find themselves playing along in this charade. Both sides, they proclaim — Kavanaugh and Ford — should be invited in to tell their sides of the story. But in that way, the Republicans treat the two as standing on the same moral plane. No distinction between the long record of a life led in full and an assertion passionately made by a woman feeling aggrieved, but with no evidence to support her claim. And no background check to support her veracity or stability. None of that would establish that she speaks falsely. But it marks differences that must put these two claims on strikingly different moral planes when it comes to the bare obligation, at the threshold, to presume them to be true.

But can this really be lost on the Republicans? Do they earnestly fear that women voters in the suburbs would not recognize these differences; that a large mass of women would think Professor Ford assaulted and denigrated if her unproven charges were not respected? Can the Republicans not see that they are projecting now, onto women throughout the country, the moral sensibility that the Left on the campuses has worked for years to paint as the state of mind that reflects the real Woman, as they would have her? Does that really reflect the state of mind of women who voted for Donald Trump in 2016? Why would Republicans demean their own voters in this way by reducing them to having the moral reflexes trumpeted by the people who have made “gender studies” their vocation?

In a fashion become typical by now, the Republicans are content to see the matter play out by leaning on neutral rules: If Ford does not appear by next Monday or Thursday, we have run out of time. That move shelters the Republicans from the appearance of — gasp! — casting a moral judgment. But it helps to sustain a moral judgment nevertheless: that the charges against Brett Kavanaugh remain unrefuted and therefore plausible. And so he may join the Supreme Court under a cloud of guilt, which the Left will be pleased to preserve on into the next generation, as they have done with Clarence Thomas.

But as ever, cravenness has purchased no gratitude, and it has brought from the other side no answering civility. Neither has it brought any willingness to use the time to consider the evidence in a demanding way. The willingness to delay in the name of fairness has simply elicited a wave of charges ever more untempered and out of scale. As anyone could have anticipated, the delay would simply offer an incentive to be ever more inventive and audacious in bringing forth new claims, ever more fantastic, with a media all too willing to treat them as plausible. It is time to ring the gong and bring the Goon Show to an end.

For the sake of muddling through and getting the confirmation, the Republicans have been willing, as ever, to let their own man be tarnished and carry the stain. And they find in all of this some triumph of practical statecraft. But to my mind, it speaks too much of Edmund Burke’s description of “moderation” for the new Whigs: that it consists in “patiently bearing the suffering of one’s friends.” A party that will not defend its own will soon project a deep want of respect for itself and for the people who have staked their reputations within their circle. And staked it on the assumption, romantic and perhaps foolish, that there is some principle that actually binds them together.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College, the founder of the James Wilson Institute on Natural Rights & the American Founding, and the architect of the Born-Alive Infants Protection Acts.

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