The Corner

Law & the Courts

Why Kavanaugh and Not Gorsuch?

A lot of conservatives have said that the attacks against Judge Kavanaugh’s character are a political smear. Often they’ve said it’s a “co-ordinated” attack. A common rejoinder to this claim is that a) it’s implausible that all three of the judge’s accusers are taking part in a co-ordinated strategy to bring him down and b) if the accusations were just motivated by the desire to stop a conservative justice, they would have been deployed against Neil Gorsuch’s nomination. Gorsuch, after all, was nominated for the seat that liberals believe Republicans “stole” from Judge Merrick Garland.

There are, I think, a few differences between the situations that would increase the likelihood of a character-assassination campaign against a nominee now over what it was in early 2017. One is that there’s one fewer Republican senator now, and so it’s easier to defeat a nominee. Another is that this nomination is to replace Justice Anthony Kennedy rather than Justice Antonin Scalia, and thus could have a bigger effect on the Court and especially on the future of abortion law. Still another is that we are now much closer to the midterm elections, so there is a chance to push a confirmation hearing into a lame-duck Senate and then pressure that Senate not to move forward.

But I think the more important rejoinder is that there’s a rather large middle ground between “Kavanaugh’s accusers and everyone giving their accusations credence is playing a cynical political game” and “Kavanaugh and his supporters have no cause to complain he’s being smeared for political reasons.” Let’s say the Blasey Ford accusation is not motivated by politics; I have no strong reason to think it was. I think nonetheless (as I wrote in an article published this morning) that it’s the partisan and ideological opposition to Kavanaugh that have caused that accusation to be treated as though it has a far stronger evidentiary basis than it has.

And I strongly suspect, though I cannot prove, that it took both the political fury surrounding this nomination and the Blasey Ford allegation to prompt Deborah Ramirez’s re-evaluation of her memories and the journalistic credulity that has greeted it. (Which doesn’t preclude the possibility that Ramirez really has convinced herself her story is the truth.) Ditto on dubious accusations three and four.

I don’t believe that these accusations are purely and simply a giant political dirty trick, and I think that what Kavanaugh supporters are better off stressing is that the evidence against him is weak and that it is grossly unfair for senators, or anyone, to demand in effect that he prove himself innocent beyond a reasonable doubt. But of course it is true that politics is supplying a lot of the fuel for this fire.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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