Are the charges against Judge Kavanaugh true? And does EITHER side even care?
I should make it clear that I start from a place of skepticism regarding the charges made against Judge Brett Kavanaugh by Dr. Christine Blasey Ford and now, by Deborah Ramirez. That skepticism is not born of a reluctance to "believe the victim," but rather of an awareness of how easily unsubstantiated charges can be made, how fiercely determined the left is to continue to maintain its stranglehold on the Supreme Court, and how slight the regard either side is apt to display for due process or fairness.
This time, I'm on Donald Trump's side. I want Brett Kavanaugh (or some originalist) to take Justice Anthony Kennedy's place on the Supreme Court because the Court was never intended to be what it has become and has remained for several decades: an unchecked juggernaut unimpaired by the separation of powers and able at a whim to ignore the actual words of the Constitution and instead give legal force to the personal values and wishes of the men and women who sit on it. And yet once again I'm impressed by the president's political ineptitude and genius for shooting himself- and us- in the foot.
The Kavanaugh nomination is about a great deal more than Brett Kavanaugh. It's about whether, after decades of a Supreme Court willing to impose the vision of a majority of its members upon the Constitution, effectively sitting as a permanent and unelected constitutional convention, it is going to return to its traditional role of interpreting it rather than amending it by judicial fiat.
Roe v. Wade is not going to be reversed- although, should Judge Kavanaugh or another originalist be confirmed, it will likely be modified, brought into conformity with what (leftist propaganda to the contrary) a majority of the American people have believed ever since the decision was first handed down that it the law on abortion ought to be: permitting it under some specific circumstances, but not under others and certainly not under all. Neither is Obergefell v, Hodges going to be overturned, though it's possible that it will be rolled back to a requirement that gay and lesbian couples be recognized as having the same legal standing and rights as married heterosexual couples, rather than redefining marriage itself.
The right of religious Americans not to act in ways which would violate their convictions regarding their own behavior as regards gay weddings and other celebrations may well be protected, but almost certainly not simply on the ground that bakers and florists and photographers and wedding planners and others simply disapprove of them. The sky will not fall, there will be no revolution in American law or mores, and the only noticeable difference will likely be that the Court will become what it has not been for many years: an arbiter of the law as it is written rather than the third house of Congress, able to legislate and even in practice to nullify or extend or otherwise modify the Constitution itself to conform to the preferences of a majority of its members.
But that would be an unacceptable outcome for the American left, whose self-righteousness knows no bounds and whose determination to compel agreement with its program rather than convince others of its wisdom is armored in a conviction that it is only proper that it should do so, since it is right and its opponents wrong, and since it represents truth, justice, and the American way, while those who disagree with it are not simply mistaken, but evil.
The Democrats in the Senate and beyond are fighting for the deck to continue to be stacked in favor of their own values and viewpoint. And that is the bottom line in the firestorm over the nomination of Brett Kavanaugh.
Two women have come forward to accuse Kavanaugh of sexual misconduct. The allegation of a drunken attempted rape when the judge and Professor Christine Blasey Ford were kids has now been augmented by a second allegation of drunken sexual misconduct when Judge Kavanaugh was a freshman at Yale. Supposedly Deborah Ramirez remembers a penis being thrust into her face and overhearing a cry that its owner was "Brett." She admits that she herself was intoxicated and that there are holes in her memory.
Democrats are coming right out and saying that they have no doubt that the accusations are true. Republicans are dismissing them as by their very nature unprovable. Both sides are being irresponsible beyond belief.
Contrary to President Trump (and Sen. Grassley, the chair of the Senate Judiciary Committee) FBI investigations of Supreme Court nominees are common and even standard practice. The allegations are serious and, if true, disqualifying. Both Prof. Ford and Ms. Ramirez deserve to have their stories investigated by the FBI and to have the opportunity to tell their stories to the Senate Judiciary Committee. The fact is that such investigations could be completed within days.
They should be. A smarter White House would be insisting that the investigations by the FBI be done, be done promptly, and be done in a timely enough manner for a vote to go forward both by the committee and by the full Senate in the next few weeks. Instead, the Trump White House and the Senate Republican leadership are playing into the Democrats' hands by stalling.
Of course, if they didn't, the Democrats would. We already have Dr. Ford's bizarre insistence on only telling her story to the committee her story on her terms.That's not the way it works. Witnesses before congressional committees don't make up the rules regarding their own testimony; the committees themselves do. But if the Republicans suddenly got smart and ordered that prompt investigation and acceded to Dr. Ford's demands, some reason would unquestionably be found to delay the matter further. The emergence of a second accuser has already complicated things, although even now both allegations could be thoroughly investigated by the FBI and both the committee and the Senate could move on to prompt consideration of both the charges and Judge Kavanaugh's nominations. Except that it's hard to believe that a thorough vetting of the accusations is really what the Democrats want.
When the late, great Justice Antonin Scalia died, President Obama promptly nominated Judge Merrick Garland, the Chief Federal Circuit Court Judge for the District of Columbia, to take his place. The nomination was made on March 16, 2016. Mr. Obama's successor would be elected less than nine months later. The political stakes were high. Judge Garland's confirmation would have replaced a conservative justice with a liberal one and solidified the left's hold on the Court. An incoming Republican president, if one were to be elected, would have found it much harder to change the complexion of a Court whose very character would have fundamentally changed. Although at least on social issues the Court already had a definite liberal cast (however much the media loved to talk about socially liberal Justice Anthony Kennedy, who was conservative on other issues, as the Court's "swing vote"), the replacement of Justice Scalia by Judge Garland would have ended any credible pretence of an ideologically balanced Court.
President Obama did not pick the date of Justice Scalia's death, but its proximity to a presidential election raised a question as to whether a lame duck president ought to be making the appointment. The argument to the contrary was a clearly partisan one. But the Republicans controlled the Senate and had it within their power to scuttle the Garland nomination without it ever even being considered.
They did. And so it was Donald Trump rather than Barack Obama who nominated Justice Scalia's successor, and it was Neil Gorsuch rather than Merrick Garland. The complexion of the Court remained what it had been philosophically, and the stage was set for the Kavanaugh nomination upon the retirement of Justice Kennedy.
Since the Democrats are doing a lot of posturing on the matter, it should be pointed out that their record of obstructing the nominations of conservative candidates to the Court dates all the way back to President Reagan's nomination of Solicitor General Robert Bork, who was rejected on frankly ideological grounds. Other than the nominations of David Souter and Kennedy, both of whom were rightly suspected of harboring philosophical convictions at least on many issues not dissimilar to the Democratic party line, Democrats have been far more apt than Republicans in recent years to obstruct nominations to the Court on ideological grounds. The Garland case had several precedents in the behavior of Senate Democrats, although admittedly in each of those cases the nominations were allowed to actually be considered. In retrospect, holding hearings on Judge Garland and "borking" him, to use the term Democrats themselves employed for their ideological obstruction of conservative nominees, might have been a smarter course for the Republican Senate majority. Instead, the nomination was never acted upon at all.
One particular instance of Democratic resistance to a conservative nomination was the case of Clarence Thomas. Justice Thomas was confirmed in circumstances uncomfortably similar to those facing Judge Kavanaugh today. Anita Hill, who had been a subordinate of Justice Thomas at the United States Department of Education and the U.S. Equal Opportunity Commission, came forward to accuse him of sexual harassment.
The accusations did not rise to the level of those against Judge Kavanaugh, but then as now the sides aligned along partisan lines. Democrats believed Ms. Hill; Republicans did not. The fact was, however, that it was a matter of her word against his. There is no question of Ms. Hill's allegations having been proven; they had simply been made- though it should be said that she took and passed a lie detector test on the allegations. But such tests are not conclusive, which is the reason why they are not admissible in court. And since anyone can come forward at any time to make unsubstantiated accusations against anyone else, the result was insufficient to cause the Senate to refuse to confirm Thomas.
The smart move would be for the Trump administration and the Republicans in the Senate to bend over backward to give every reasonable consideration to both Dr. Ford and Ms. Ramirez, readily authorizing the FBI investigation and being seen to be in every way reasonable and even-handed. But this is not a smart administration, and its domination of the Republican party is such that the President felt comfortable after a brief period of observing the discretion which Sen. McConnell and other party leaders advised in abusively attacking Dr. Ford, not only giving credence to Democratic claims of Republican misogyny but generating a considerable amount of sympathy for Dr. Ford and a greater willingness to believe her than might otherwise have been the case.
The matter seems, after all, to be a replay of the Thomas-Hill affair, a matter of "he said, she said," incapable of the kind of proof which might constitute reasonable grounds for rejecting the Kavanaugh nomination. There seem to have been witnesses to the alleged incident involving Ms. Ramirez, and their identities are known. But that very fact makes it all the more imperative that the matter be investigated and their testimony is given. If it is not, a reasonable shadow will hang over Judge Kavanaugh's nomination, and there is a very good chance that the mere handful of Republican senators the Democrats need to defeat the nomination may feel compelled to vote against it.
But this is the first president in recent memory to refuse to release his income tax returns and a man whose record in the business world was not exactly a model of transparency. His instinct seems to be to defy and to obstruct. In this case, the outcome will likely be the defeat of Brett Kavanaugh.
But there is also another side to the coin. Some Democrats are openly calling for the vote to be delayed until after the November election. The Republican majority in the Senate is at risk in that election, and even though the odds at this point make it more likely that the Democrats will take control of the House than of the Senate the slightest shift in the balance between the parties in the upper chamber probably would be enough to defeat Judge Kavanaugh. And make no mistake: should the Democrats actually gain control of the Senate- and while unlikely, it is certainly possible- no candidate President Trump would be likely to nominate will ever be confirmed by that Senate. In fact, it seems likely that only by nominating Judge Garland or someone very much like him would it be possible for Mr. Trump to fill the vacancy at all.
The same lack of political savvy which has made Donald Trump a diplomatic disaster as president, has caused him to give credibility to the notion that he has something to hide with regard to his dealings with Russia by attacking the FBI and Special Prosecutor Mueller and trying to cut short an investigation which an innocent man would more likely hope to clear him would encourage, and has consistently moved him to instinctively attack critics rather than seek to win them over makes it unlikely that he and the Senate Republican leadership that is so completely under his control will do the smart thing and seek as thorough and prompt an investigation of the Ford and Ramirez charges as possible. They control the Senate, even if narrowly; if only they exercise discretion, Brett Kavanaugh's best chance of confirmation is that the charges be promptly and thoroughly investigated and be seen to have been given the most careful investigation possible.
It is possible, of course, that Dr. Ford has collaborating evidence we don't know about. Although after reading her statement it seems to me that Ms. Ramirez stops short of actually stating that she remembers Judge Kavanaugh exposing himself to her (although she says that she is convinced that it happened), it is possible that those two unnamed witnesses might collaborate her claim. If that is the case, Judge Kavanaugh's nomination ought to be defeated, and it almost certainly will be if Mr. Trump is seen to take the same approach to the investigation of the claims of Dr. Ford and Ms. Ramirez that he has to the Mueller investigation.
Donald Trump is not a smart man, cunning though he may be in certain ways. In this matter, he is his own worst enemy- and Judge Kavanaugh's. Instead of adopting the posture the first President Bush and the Republican leadership in the Senate did in getting Clarence Thomas confirmed despite Anita Hill's accusations, he seems determined to do what he has done in the matter of his income tax returns and the Mueller investigation and create the impression of trying to hide something even if there is nothing to hide.
And if the worst happens, and the charges against Judge Kavanaugh are shown to be true, then the sooner his nomination is withdrawn and a new nomination sent to the Senate the better. If a replacement for Justice Kennedy hasn't been confirmed by Election Day, and the Democrats do gain control of the Senate, the window for asserting an originalist control of the Supreme Court at long last will have closed and the Kennedy vacancy will be filled by the Democrat who succeeds Mr. Trump.
And let's be blunt about this: whether or not the accusations against Judge Kavanaugh are true, as things stand I have absolutely no doubt that the next time Mr. Trump or any Republican nominates an originalist to the Court, somebody is going to come forward with similar accusations whether they are true or not. This is not merely a matter of Brett Kavanaugh's character or his behavior when he was a student. This is a no-holds-barred, bare-knuckle fight for the continued ability of the left to use the Supreme Court as a weapon for deforming the Constitution and giving its agenda the force of law without recourse to the voters, and whether Dr. Ford or Ms. Ramirez is telling the truth or not, there will be no shortage of politically-motivated women willing to come forward and make the same kind of claim about future nominees in order to keep the Court under leftist control.
And to no small extent, the willingness of the American people to give future nominees the benefit of the doubt and insist on actual proof rather than mere accusations as a basis for refusing to confirm them will depend on the Trump administration and the Republican leadership in the Senate being seen to give Dr. Ford and Ms. Ramirez every courtesy and every opportunity to make their case, including a prompt and thorough investigation of the charges by the FBI.
The ultimate objective of the left is to either defeat Brett Kavanaugh now on whatever grounds possible or- and let's be clear about this- to delay the vote until they control the Senate and can be certain of doing it later. Perhaps the Republicans will retain the Senate this November, but even the loss of a seat or two could be crucial. So would alienating Sen. Collins, Sen. Murkowski, and a handful of other Republicans who are apt to insist on the charges being investigated.
The smart move would be to give Judge Kavanaugh's accusers every opportunity to make their case and to take pains to be seen to do so. But it will be to make very sure that the nomination reaches the Senate floor before the new Congress takes office and if possible before Election Day.
That can still be done, but time is running out. Yet the lesson of the Thomas-Hill affair seems to be that if- and only if- Senate Republicans are seen to do the former, the American people will accept the latter.
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