The Kavanaugh Conundrum

Initially, the nomination of Brett Kavanaugh seemed to be a mere barometer, a neutral indicator of the growing storm clouds over the Potomac. Judge Kavanaugh was talented, respected within the legal community, and well-liked by those who knew him. In these respects, he was much like Merrick Garland, his colleague on the D.C. Circuit who was nominated to the Supreme Court by President Obama after Justice Antonin Scalia's death. Both Garland and Kavanaugh were the types of nominees who, under different circumstances, might have received Senate vote counts in the high 90s, as did Scalia and his odd-couple friend Ruth Bader Ginsberg. 

Instead, thanks to Senate Majority Leader Mitch McConnell (with an able assist from then-Senator Joe Biden, who in 1992 forcefully argued against any confirmation hearings for Supreme Court nominations in a presidential election year), Garland’s nomination was dead on arrival in 2016. Then the November surprise happened, and President Trump tapped Neil Gorsuch. Only three Democrats voted for Gorsuch, along with 51 Republicans. The Democrats’ intransigence in the face of Gorsuch’s unquestionable qualifications prompted a change in Senate rules:  Filibusters on Supreme Court nominations were eliminated, completing a dismantling process the Democrats had begun in 2013. 

Of course, the problem's roots run into the prior century. Yet even after “Bork” had become a verb, there still remained a waning but significant bipartisan coalition that recognized elections have consequences, and that a president should normally get his or her pick. The Gorsuch vote revealed that such a consensus was essentially dead, at least in this Congress. The Kavanaugh nomination simply seemed to be following suit. 

The Judiciary Committee hearings began with coordinated Democratic theatrics. Then, Senator Diane Feinstein played a card she had been sitting on since July. Ostensibly, this delay was fueled by the senator’s deep concern about maintaining her informant's anonymity. And what better way to honor a victim’s request than to issue a statement about the allegation and release the media hounds! 

Conservatives have been rightly repulsed by Feinstein’s tactics, but they have worked. The accuser was flushed out of hiding and onto the public stage with a Washington Post interview. Kavanaugh, previously the super-duper soccer dad only opposed for policy reasons, was transformed into a pariah for the left and a martyr for the right. 

Social media and our increasingly polarized information sources responded in expected ways. For the left, Kavanaugh was “smug and smarmy,” as Rafia Zakaria put it for The Nation. For Michael Moore, speaking on Democracy Now, Kavanaugh was the epitome of “these ***holes that we’ve had to tolerate and who have made life miserable for us and who were the bullies when we were in school.”

Meanwhile, on the Christian Broadcasting Network, Franklin Graham declared an accusation of attempted rape “not relevant.” Andrew McCarthy said, “It’s a set-up” at National Review. The normally thoughtful Ed Whelan behaved like Barney Fife on Twitter (which again proved to be a dangerous device in the hands of presidents, whether of nation or non-profit). Some on the right even waved Roy Moore's failed candidacy as a bloody shirt. Moore himself declared Republicans should “take a stand” and defend Kavanaugh.  

When credible accusations were leveled against Moore, McConnell declared, “I believe the women.”  Will he now believe Ford, a woman with seemingly little to gain by coming forward but who has done so armed with notes from a therapist, an affirmative polygraph result, and witnesses who tell of multiple corroborating conversations both before and after Kavanaugh was nominated?

The middle of the American electorate is now being asked to choose between competing visions of a railroaded angel and a rubber-stamped demon. They may simply throw up their hands, and the chasm separating our hostile political camps—and marooning those in the center—will only grow wider. That separation will increase if Roe v. Wade is overturned with two of the five votes (Kavanaugh's and Justice Clarence Thomas's) tainted by sexual misconduct allegations that large swaths of the country believe.

Any healing of this cleavage will require real sacrifice from one side to break the cycle of escalation. What might that look like? Senate Republicans could set aside their short-term ability to push this nomination through—a nomination that has not been “rushed” as Democrats claim, but is following a well-trodden path that uses the Court’s summer recess. Republicans could recognize that Dr. Ford's allegation is serious and merits a full investigation.  As with the Garland nomination, they could also subject the decision to the uncertainty of an election. 

Judge Kavanaugh’s unequivocal denial presents a question of character immediately relevant to determining his fitness for the nation’s highest bench. Kavanaugh might have (if it were true), responded by saying that he regularly got drunk in high school and that he could not definitively account for all of his actions during that time; however, he had long left that reckless lifestyle behind. That would have presented the Senate with one question: Do the actions of a since-reformed 17-year-old forever bar him from the Supreme Court? 

But this is not the question they now face, and perhaps for good reason. If Kavanaugh’s quip “What happens at Georgetown Prep, stays at Georgetown Prep” referred to nothing worse than drinking Mountain Dew and playing Dungeons and Dragons, then I would not expect him to do anything but defend his good name. But what if he had more than just a passing knowledge of his friend Mark Judge’s self-documented struggle with alcohol in high school? What if Judge’s “Bart O’Kavanaugh” is not merely an unrelated fictional character? What if the captain of the basketball team imbibed more than his share of the “100 kegs” that his yearbook documents? If, in short, Kavanaugh—after dispassionately considering the evidence as a good judge should—cannot be sure that he never, in a toxic cloud of testosterone and alcohol, did what Dr. Ford alleges, then perhaps he should sacrificially step aside for the good of the country. Such a selfless act might serve as the first stitch in closing our nation’s ever-growing wound.

John Murdock is a law professor who previously worked for over a decade in D.C.

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