Kavanaugh Round 2 may be endgame
Supreme Court nominee’s accuser agrees to testify this week
Whatever the outcome, the dueling testimony between Supreme Court nominee Brett Kavanaugh and his female accuser — Palo Alto University professor, psychologist and mother of two, Christine Blasey Ford — is likely to represent a sea change in the court’s confirmation process and the over-arching politics.
The epic confrontation begins Monday with Kavanaugh’s return engagement before the Senate Judiciary Committee. He will reiterate his denial of charges leveled by Ford that as teenagers, Kavanaugh assaulted her while drunk, pinned her down on a bed and put his hand over her to mouth to muffle her screaming.
Ford’s appearance was the subject of intense negotiations between her lawyers and Senate Judiciary Committee Chairman Charles Grassley, R-iowa. But Saturday afternoon, Ford’s lawyers, Debra S. Katz and Lisa Banks, emailed an acceptance of “the committee’s request to provide her firsthand knowledge of Brett Kavanaugh’s sexual misconduct next week.”
Their email also criticized the committee’s proposed conditions for her testimony as “fundamentally inconsistent with the committee’s promise of a fair, impartial investigation into her allegations.”
Ford’s testimony is likely to be graphic and detailed — undermining what had been relatively smooth sailing by the 53-year-old Washington, D.C., federal appeals court judge. Whether it’s enough to derail Kavanaugh remains
to be seen.
For Republicans, the high-wire act they must perform to win Senate confirmation is full of peril. Already projected in most polls to lose control of the House, Republicans could lose the Senate as well if they appear to give Ford short shrift in order to ram the Kavanaugh nomination through.
Given the #Metooinspired awakening of women to long-unaddressed abuse by powerful men, the charges could hardly have come at a worse time.
Failure to win confirmation could alienate the Republican base of Trump-supporting conservatives and evangelicals, foot soldiers Republicans need at the polls.
At this point, the Kavanaugh battle “has very little to do with the way legal philosophy has diverged over the past few decades, and everything to do with ideological purity of the parties,” said Michael Dorf, a Cornell University law professor. “This is a phenomenon that started over 50 years ago, but only now are we seeing Senate polarization bleed into the confirmation process.”
For those of a certain age, the Kavanaugh versus Blasey Ford confrontation evokes memories of Anita Hill in 1991 accusing then-nominee Clarence Thomas of lewd sexually oriented discussions while the two worked together. Though Hill’s testimony was gripping, Thomas won confirmation on a Senate vote of 52-48.
But Thomas joined the court as a third solid conservative vote, with the remaining six justices — nominated by Republican and Democratic presidents — representing a mainstream of legal thinking. Now, “there isn’t a single mainstream,” said Dorf.
And that may explain why the Kavanaugh battle to replace Supreme Court Justice Anthony Kennedy, who retired, is as intense as it is. With four solid conservatives and four solid liberals on the court, Kavanaugh’s confirmation likely would tip the court in a conservative direction. Liberals see cherished precedents in jeopardy, including Roe v. Wade, which established abortion rights in 1973.
The very thought of a fifth conservative on the court mobilized Senate Minority Leader Charles Schumer, who much like his Republican counterparts is feeling pressure from his base to deliver the goods — defeat of Kavanaugh, in this case.
On the Republican side, President Donald Trump has not been restrained in his finger-pointing.
Kavanaugh is “under assault by radical leftwing politicians who don’t want to know the answers, they just want to destroy and delay,” Trump tweeted Friday. “Facts don’t matter. I go through this with them every single day in D.C.”
In a separate tweet, Trump also suggested that if the assault was “as bad as she says,” she should bring forth copies of complaints filed with police “so that we can learn date, time, and place!”
Anti-kavanaugh advocates counter that Ford was understandably reticent about coming forward and did so on her own.
“We didn’t come up with it,” said Nan Aron of the Alliance for Justice, one of the leaders of the anti-kavanaugh coalition. “We didn’t bring her forward.”
Democrats insist the political motivation is all on the Republican side.
“What we’re seeking to uncover is the truth and the facts through testimony and an investigation, without any real delay at all,” said Sen. Richard Blumenthal, D-conn., a member of the Judiciary Committee. Republicans “fear her testimony because they fear the truth.”
Undergirding Democratic opposition is the bitter memory of Merrick Garland, nominated by then President Barack Obama in March 2016 to fill the vacancy left by the abrupt death of the court’s leading conservative, Justice Antonin Scalia.
Had Merrick won confirmation, the court’s balance would have tipped 5-4 in a liberal direction. But Senate Majority Leader Mitch Mcconnell, R-KY., halted the nomination on a gamble that Republican victory in the 2016 presidential election would give conservatives breathing room.
Mcconnell’s strategy paid unexpected dividends when Donald Trump defeated Democrat Hillary Clinton, against all odds. In the 20 months since Trump’s inauguration, the Senate confirmed conservative Neil Gorsuch to the court and was on the verge of clinching a conservative majority until Ford stepped forward.
When this week’s crossfire ends, the fate of Kavanaugh’s confirmation will be in the hands of a few Red-state Democratic
and moderate Republican senators.
The cloud over Kavanaugh may give Democrats from states won in 2016 by Trump “more of an out to oppose Kavanaugh than would otherwise have been the case,” said Ronald Schurin, a political scientist at the University of Connecticut.
In addition, Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both prochoice and skittish about Kavanaugh on that issue, may turn against him. A combination of centrist Republicans and Democrats voting “no” likely would seal Kavanaugh’s confirmation tomb for good.
Cornell’s Dorf compares the last-minute drama to former NBA star Shaquille O’neal’s legendary poor performance at the free-throw line.
“I make them when they count,” Shaq said, according to Dorf. But later statistical analysis proved Shaq’s claim untrue, Dorf said. The superstar was no better in the fourth quarter than at any other point in the game.
For Dorf, a successful basketball team shouldn’t have to depend on a last-minute free throw — much like the political parties shouldn’t be depending on a last-minute crisis to keep a crucial fifth vote out of enemy hands. “If your goal is to get majority of likeminded people, you’ve got to fight like hell for every seat,” he said. “The fifth vote is no more important than the prior four.” By contrast, Democrats, need “a time machine to go back and (more vigorously oppose previous Republican nominees) and get the millennials to turn out and vote,” he said.