Oct 14, 2018 6 min read

The different reactions to Brett Kavanaugh’s appointment to the Supreme Court demonstrate the deep partisan divisions in the country. Republicans believe Kavanaugh to be an exemplary man who was ambushed by a fabricated allegation of sexual assault at the very last minute as part of a Democratic plot (funded by George Soros!) to push the appointment past the midterms, which might change the political balance and allow the Democrats to steal a Supreme Court appointment. Sen. Mitch McConnell railed against the “obstructionist Democrats.”

First, given that McConnell refused to allow the Senate to even consider Barack Obama’s appointment (Merrick Garland) to the last open high court seat, delaying the appointment for more than a year, McConnell has a lot of nerve complaining about a delay measured in weeks. And of course, McConnell’s reasoning for his refusal to allow Garland to be considered was that he wanted the electorate to have a say. While 2018 is not a presidential election year, the Senate does have a say in Supreme Court nominations (as we’ve just experienced), and the composition of the Senate will certainly be different after the election. So theoretically, McConnell’s logic would still apply. Unless he didn’t really believe that, and was just using that to justify his naked power grab.

Democrats did not like Kavanaugh even before any allegations of sexual assault for the same reason Republicans liked him (his constitutional “originalism” and his anti-labor, anti-abortion and pro-business rulings). So Republican critics are right that the Democrats were searching for a way to keep him off of the court. Before the allegations of sexual assault, Democrats felt he had not been honest in his Senate confirmation hearings for the D.C. Circuit court. Sen. Patrick Leahy found evidence (including an email Kavanaugh forwarded with the “spying” in the subject header) that suggested he was aware that the confidential information had been stolen, but he stuck by his denial.

When Christine Blasey Ford’s allegations came out, the Democrats felt they had an issue that might derail the nomination. Republicans accused the Democrats of waiting until the last minute to launch this attack, but why would the Democrats purposely wait? Waiting allowed the Republicans to hurry the FBI investigation to meet their own artificially created deadlines. While Ford informed the Democrats earlier in the summer of her charge, she was not ready to come forward; how seriously would Republicans consider anonymous sexual assault charges? Ford could have told the Republicans (and probably should have), but it is unlikely that this would have made a difference (after all, Republicans have an incentive to quash this sort of information, whereas Democrats are incentivized to use it). Ford knew that coming forward with the charge publicly would change her life for the worse, and made the reasonable calculation (which turned out to be correct) that it would not make a difference (she likened it to stepping in front of a train). She only came forward after someone leaked the allegations. Republicans claim that the Democrats attempted to ruin Kavanaugh’s life, but in reality, Ford cannot live in her home because of death threats while Kavanaugh is on the Supreme Court after a few weeks of discomfort.

We may never know what actually happened between Ford and Kavanaugh in 1982, but if you examine the evidence, Ford is much more believable than Kavanaugh. First, if she’s making it up to derail a nomination, why would she place Kavanaugh’s best friend as a witness? If you’re making it up, you find a willing accomplice who is willing to testify that she witnessed the assault. This is supported by the fact that she had talked about this years ago, and she reported it to Dianne Feinstein and the Democrats before Kavanaugh had even been nominated (though he was on the list of potential nominees).

I think it is likely that it happened roughly as Ford described, but Kavanaugh honestly can’t remember it because he was inebriated, and probably never intended to rape Ford (but given his actions, Ford would not know that). Many drunk men make inappropriate aggressive sexual plays, though with Mark Judge present, Kavanaugh may have just been having fun at Ford’s expense, which is another type of common behavior for drunk guys. They would not remember this incident because (in their view) there was nothing memorable.

Republicans (led by President Trump) argued that if Ford’s allegations were believed without proof, almost any man could have his career upended by inappropriate behavior in high school. While sexual assault in high school would probably be disqualifying, all of the other behaviors (the drinking, yearbook comments) were only relevant in that they undermined Kavanaugh’s credibility. So the Republicans have created a strawman argument: Democrats will accuse anyone who drank beer in high school and ever did anything regrettable! Kavanaugh basically argued that he could not have committed this assault because all he did in high school was study, work out, go to church and work on his service projects. Besides, he got into Yale! But this was an attempt to whitewash his high school years.

Kavanaugh claimed that during the summer of 1982, he could not have committed the assault on Ford because he never partied during the week and he was out of town almost every weekend. But the calendar he provided to prove his angelic lifestyle indicated that he attended just such a gathering, with most of the people Ford named. While maybe Ford set it up by creating the calendar and somehow convincing Kavanaugh to bring it forward as evidence, it is more likely that it supports Ford’s allegation. For an incident that few people witnessed and happened long ago, it would be almost impossible to prove either guilt or innocence beyond a reasonable doubt. But usually the side that prefers to limit the efforts to look into the situation (as the Republicans have) is the side that has something to hide.

Ford’s allegation put Kavanaugh under immense pressure (though no more than Ford was under), and it showed a side of Kavanaugh that many people thought disqualified him for the Supreme Court (even without the assault allegations). He was angry, vindictive, and partisan, not only calling the Democrats on the judicial committee “an embarrassment” but threatening them (“what goes around, comes around”).

The danger is not that Kavanaugh will sexually assault someone while he’s on the court. It is that by appointing him in spite of his alleged behavior, and in spite of his documented dishonesty, his partisan world view, and the lack of judicial temperament he demonstrated during the process, his appointment will hurt the stature of the court, which is the foundation of its effectiveness.

Kent James is an East Washington resident and has degrees in history and policy management from Carnegie Mellon University.