The 'Pro-Kavanaugh' Case For Hearings Into The Latest Accusations

Hearings should be held not just for the sake of the accuser, but for the sake of Judge Kavanaugh and the Supreme Court.

Judge Brett M. Kavanaugh (screenshot via YouTube)

As I have made clear in these pages and on Twitter, I have been a strong supporter of Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court up to this point. His qualifications lie beyond question, and many of the attacks against him have been unfounded, unfair, or both.

But now that the previously anonymous woman who accused Kavanaugh of sexual assault, Christine Blasey Ford, has decided to come forward, I believe that we need an investigation and Senate Judiciary Committee hearings into her claims — not just for Ford’s sake, but for the sake of Judge Kavanaugh and the Supreme Court.

If Ford’s claims withstand such scrutiny, then senators should consider them before voting to place Judge Kavanaugh on the highest court in the land. But if Ford’s claims lack sufficient support, then senators should know that too, and Judge Kavanaugh should have a chance to clear his name — before the Senate, and before the nation.

I make this “pro-Kavanaugh” case for hearings in a New York Times op-ed. Here’s the core of my argument:

I respectfully disagree [with opponents of more hearings]. The confirmation should be delayed until there is a full investigation, followed by Senate Judiciary Committee hearings, into Ms. Ford’s accusations.

She passed a polygraph test administered by a former F.B.I. agent, and her therapist provided The Washington Post with notes reflecting that Ms. Ford described the alleged incident in 2012. But her case is far from ironclad.

For example, she can’t remember or remains uncertain about many key details (including the year of the alleged incident); she told nobody contemporaneously (unlike many other alleged victims of sexual assault); and both Mr. Kavanaugh and his friend deny it. There is, as far as we know, no physical evidence. It’s a true “she said, he said” — or, rather, “they said,” since two people deny this incident ever happened.

And that’s not all. I could also have mentioned, for example, the letter from 65 women who knew Kavanaugh in high school and say “he has always treated women with decency and respect” — which, even if it doesn’t speak directly to Ford’s accusations, does constitute relevant character evidence. As we have seen from the #MeToo movement, men who commit sexual harassment or assault often victimize more than just one woman. (For additional analysis of Ford’s claims, see David French, who describes them as “serious but not solid.”)

Sponsored

Returning to the op-ed:

Ms. Ford should at least be heard, and not just because the #MeToo movement has made the importance of hearing out victims of alleged sexual misconduct even more obvious than it already was. The alleged perpetrator and witness should be heard from as well, and everyone involved should be placed under oath and subjected to aggressive questioning….

The object lesson here is the 1991 confirmation for Justice Clarence Thomas. After a former colleague, Anita Hill, raised allegations of multiple instances of sexual harassment against Mr. Thomas, the senators heard from both key parties before the confirmation vote….

This ultimately redounded to Justice Thomas’s benefit. Now, whenever Ms. Hill’s sexual harassment allegations are raised, he or his defenders can at least say they were explored by the senators and ultimately found insufficient to deny Mr. Thomas a seat on the Supreme Court.

So go ahead, bring on the hearings:

It is quite possible — or even likely — that hearings won’t prevent Brett Kavanaugh from being confirmed given the equivocal evidence against him and, perhaps even more importantly, the number of Republicans and red-state Democrats in the Senate. But due process, which ought to matter when it comes to filling the critical seat on the highest court in the land, calls for nothing less.

You can read the complete op-ed — these are just excerpts — here.

Sponsored

It’s not surprising that Kavanaugh opponents want a full investigation into Ford’s allegations. These claims represent their last clear chance to stop his seemingly inevitable SCOTUS confirmation.

But even if you support Judge Kavanaugh, you should still support more hearings. If Ford’s claims lack merit, or even if they just don’t have enough evidentiary support to be clearly established more than 35 years later, then Kavanaugh and his allies deserve the opportunity to make that showing.

Kavanaugh should not have to join the Supreme Court under a cloud, or put up with people mentioning Ford’s accusations every time he’s on the winning side of a 5-4 decision. If full and fair hearings take place, then whenever Ford’s claims are raised at any point in the future, Justice Kavanaugh and his supporters can say, “Sorry — res judicata.”

If and when Judge Kavanaugh becomes Justice Kavanaugh, that should be a joyous occasion for him, his family and friends, and all of his other supporters. And the joy will be so much greater knowing that any and all objections to his confirmation, whether serious or spurious, were thoroughly raised, reviewed, and refuted, convincingly and completely.

Delay the Vote — for Kavanaugh, for His Accuser and for the Court [New York Times]
Weighing the Allegations against Brett Kavanaugh [National Review]


DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.