Austin American-Statesman Sunday - - INSIGHT -

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.

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