The Corner

Law & the Courts

So Now What?

Supreme Court nominee Brett Kavanaugh testifies during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., September 5, 2018. (Chris Wattie/Reuters)

So now what? We have a name and an accusation, which is an improvement over the status quo ante. If you’re going to make an allegation of misconduct, this is how you do it: publicly, and attached to as much information as you have. Eternal shame on those who made specific calls before they knew what was being alleged. Now, not last week, is the time for discussion.

Trouble is, while this is closer to how this is supposed to work, there’s still nothing much to investigate. The accuser has summoned a vague memory of an event from thirty years in the past — a memory she didn’t mention until six years ago, to which she cannot attach a time or place, and that is recorded in notes that neither line up cleanly with her current story nor name Kavanaugh as the perpetrator. The two other parties have both categorically denied it, and nobody else from that era has weighed in. In addition, there are no other accusers, and every thing else we know about the accused is positive. That doesn’t mean the accuser is not telling the truth, of course. But it does mean that there’s no way of preventing a classic he said/she said dispute.

Which is all to say that this has now become a political question. Unfair as it may be, the core calculation now will not be whether the charges are true (we don’t know) or whether the timings and assumptions are fair (they are not), but what the various players consider the least dangerous course politically. Perhaps Republicans will want to make clear that they will not be bulled by eleventh hour half-charges. Or perhaps they will cut their losses lest they help Democrats turn out women in the midterms. Who knows? Either way, this is a low moment in the history of the Senate — and one that has little to do with justice.

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