WASHINGTON – What should happen now that the woman who accuses Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her has come – or, rather, has been dragged – forward?
The first part is easy: There must be a full investigation, beginning with FBI interviews of both Christine Blasey Ford, who made the accusation, and Kavanaugh himself, likely followed by some form of hearing. Though I would put nothing past the people who stole a Supreme Court seat from Merrick Garland, even this crew of Senate Republicans cannot muscle through the nomination, bleating about the unfairness of 11th-hour complaints.
The urgency is to investigate, not to rush to confirm a lifetime appointment. Surely a few Republican senators retain enough sense of institutional responsibility to insist on that – if not because it is clearly the right thing to do, because in the era of #MeToo, their female constituents will not tolerate such rug-sweeping.
Then comes the hard – or what seems to be, now, the harder – part: What happens if, as the nation saw 27 years ago with Anita Hill and Clarence Thomas, the two accounts continue to diametrically diverge? Ford says a “stumbling drunk” Kavanaugh and a friend grabbed her at a high school party, when she was 15 and Kavanaugh 17; that Kavanaugh pinned her to a bed and groped her; that he put his hand over her mouth when she tried to scream.
These allegations, if true, constitute some form of criminal sexual assault, which makes them, as my colleague Jennifer Rubin has pointed out, inherently more serious than the sexual harassment allegations, which were horrifying in their own way, involving Thomas. Yes, it was high school, but if you do something bad enough in high school, it can lose you your seat on the Supreme Court. And this, to me, constitutes bad enough even if she managed to get away before worse happened.
But. Actually, many buts. One is that Kavanaugh, like Thomas, has vigorously denied the allegations. Not that there was a misunderstanding among inebriated high school students, not that it is a dumb episode he regrets – as with Thomas and Hill, Kavanaugh’s position, or at least his position before Ford went public with her account, is that nothing happened. “I did not do this back in high school or at any time,” Kavanaugh said.
Which raises the question of what corroboration exists. I don’t doubt that Ford is telling the truth as best she recalls it, but her recollection is fuzzy. She told The Washington Post’s Emma Brown that she did not remember where the incident took place or how she got home. How well did she know Kavanaugh? Is it possible that she misidentified him? She told no one about it at the time – understandable, but less than ideal. Hill confided in friends at the time about Thomas’s behavior. Ford did not describe the incident to others until 2012, some three decades afterward.
So what to do if Ford tells her story and Kavanaugh sticks to his with the same ferocity as Thomas? And if the second boy Ford says was present, Mark Judge, continues to back up Kavanaugh’s account?
Such a swearing contest would raise questions about both the standard of proof the Senate should require in such a case – preponderance of evidence? Clear and convincing? – and who bears the burden of proof – Ford or Kavanaugh? How sure should the Senate be before it would take the extraordinary step of denying someone confirmation on these grounds?
Perhaps factual development will make this an easier call. One witness could come off as more credible than the other. Additional evidence could be unearthed that tips the balance.
And, of course, if you think that Kavanaugh should fail on other grounds – I have suggested that he should be rejected unless he agrees to recuse himself from cases involving President Trump and special counsel Robert S. Mueller III – then you are not going to agonize too much over these niceties. But if you are, say, Sen. Susan Collins, R-Maine, or Sen. Lisa Murkowski, R-Alaska? Either way, there is a risk of fundamental unfairness.
Here, the words of then-Sen. Robert C. Byrd, D-W.Va., are relevant. Byrd took to the Senate floor in October 1991 to explain why he was withdrawing his initial support for Thomas and would vote against him.
“No individual has a particular right to a Supreme Court seat,” Byrd said. “… If we are going to give the benefit of the doubt, let us give it to the court. Let us give it to the country.”
As this mess plays out, the Byrd test seems like the right one for honest senators to keep in mind.