TAKE TIME TO VET KAVANAUGH ALLEGATIONS
The stakes couldn’t be higher. The next justice to be sworn onto the U.S. Supreme Court will likely serve for decades, providing a pivotal fifth vote on a nine-member court that has been narrowly divided on critical issues. The Affordable Care Act. Marriage equality. Protections for immigrants and visitors from Muslim-majority countries. Regulations of guns, abortion, campaign dollars and free speech.
Filling a vacant seat on the high court is too important a decision to be dictated by partisan tribalism or an election year calendar. With an accuser leveling serious allegations of sexual assault against Supreme Court nominee Brett Kavanaugh, the Senate Judiciary Committee must take the time to properly investigate before the Senate casts its votes on this lifetime appointment.
No doubt the passage of time and lack of physical evidence will make it difficult to prove conclusively what, if anything, happened. Christine Blasey Ford says a drunken Kavanaugh tried to force himself on her at a high school party decades ago, an allegation Kavanaugh vehemently denies.
Both deserve to be heard and treated with respect. Both of them — and the nation at large — deserve a process designed to get at the truth. Even if that takes more than a day.
As the political rhetoric heated up Friday, it remained unclear when or if Ford would testify or what form the hearing would take. But there’s still time for both sides to rise from their partisan crouches and chart a more productive course.
For starters, senators should enlist the help of the FBI to investigate the allegations, as the agency did in 1991 when Anita Hill leveled sexual harassment charges against now-Supreme Court Justice Clarence Thomas. The agency, which has already conducted other background checks on Kavanaugh, can do so expeditiously, if the White House requests it.
Having failed to establish a process for handling such allegations since the Hill/Thomas controversy, the Senate Judiciary Committee also must take care not to repeat the same mistakes of that hearing.
Senators should use a seasoned prosecutor to lead the questioning of Kavanaugh, an appellate court judge, and Ford, a clinical psychology professor. They should also subpoena the potential witnesses Ford has identified, as well as any others Kavanaugh might suggest, and call on experts who can explain how alcohol and trauma can affect memory and why some victims take years to come forward.
Having a trained prosecutor lead the questioning would prevent the hearing from devolving into the partisan food fight we saw during Kavanaugh’s earlier hearings, with senators from both parties posing leading questions as a premise for grandstanding or obtaining juicy soundbites.
An experienced prosecutor knows how to interview witnesses to get at the truth, and understands the proper technique for questioning a person who may have endured the trauma of a sexual harassment or assault — a sensitivity that was sorely lacking in the Hill/ Thomas hearings.
The Senate in 1991 also accepted written statements about Thomas’ conduct from other witnesses but failed to call on them to testify, an investigative blunder the Senate today should not repeat.
Ford has alleged that Mark Judge, a Kavanaugh friend who wrote a book describing the drinking and hookup culture while they were in prep school, was in the room when the alleged assault happened. She named another man as being at the party. While both have issued written statements saying they don’t recall any such incident, they nonetheless should be called to testify in case they have any knowledge that can help senators sort out the competing versions of events.
It’s impossible this could all be done by Monday, which Judiciary Committee Chairman Chuck Grassley had set as the make-or-break deadline for a hearing on the matter. Clinging to this artificial deadline suggests Republicans have made up their minds and want to get the Ford hearing out of the way as soon as possible so they can approve Kavanaugh’s nomination before the high court’s session starts Oct. 1, and before the November elections change the composition of Congress.
But that drive to cement a conservative’s place on the court should not trump the greater need to get at the truth. The reputations of two highly respected professionals are on the line, and if Kavanaugh is confirmed without these allegations being fully addressed now, his credibility on the Supreme Court could remain under a cloud of suspicion for years.
Democrats also shoulder blame for playing politics with the clock, waiting to leak Ford’s allegations just before an imminent vote on Kavanaugh. Their decision to sit for weeks on Ford’s explosive charges, which she provided in late July, triggered a high-stakes game of chicken with Republicans over the seating of a highly consequential Supreme Court justice. This is not the politics or process Americans deserve.
The #MeToo movement has dramatically improved the public space for conversations around sexual misconduct, but we know it’s still a difficult decision for a victim to come forward with allegations of harassment or abuse. The hacking and death threats Ford has received this week underscore the reasons she was reluctant to go public with the allegations she first shared with a counselor in 2012.
Senators and the public should withhold judgment on Ford and Kavanaugh until both testify and investigators bring as much context as possible to light. Senators must also remember this is not a criminal trial, where they must reach a conclusion beyond a reasonable doubt, but a vetting for the Supreme Court, where a weighing of the facts must tilt in favor of the country’s best interests.
It’s worth delaying a vote on a lifetime appointment to make sure Kavanaugh is the right pick.
Judge Brett Kavanaugh is President Donald Trump’s nominee for the Supreme Court.