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December 15, 2018

One way forward: Confirm Kavanaugh now

September 28, 2018
Tie goes to the runner (Pool / Getty Images)

When Professor Christine Blasey Ford’s allegations against Brett Kavanaugh first became public, I thought that, in our toxic political environment, there was no need to reopen the Supreme Court confirmation hearings to consider last-minute claims from the mists of history. Once a new hearing was set, I thought it would be pointless at best and mutually destructive at worst. I was wrong on both counts — not because we have now definitively resolved anything, but because the tie goes to the runner: We simply can’t let unproven claims to destroy careers and lives.

That’s not to say that I don’t believe Ford. She was a remarkably human and relatable witness. Her trauma was palpable. Her testimony was credible. But it wasn’t enough to warrant the ruin for the country that rejecting Kavanaugh on that basis would mean.




Because the nominee was all-too-human too — and perhaps even more emotional than Ford. His passionate defense of his own life and his attack on the “political hit” and “sham” that this process has become. In this culmination of two weeks of denials, the would-be justice who by all previous accounts has led an exemplary life in no uncertain terms reiterated that he had never done “anything like this.”

I wish that Ford’s allegations could’ve been investigated by the FBI as part of its standard background check — the sixth one that Kavanaugh has passed — when her confidential letter first reached the Judiciary Committee soon after Kavanaugh was nominated. But the ranking member, Sen. Dianne Feinstein, sat on the letter, at one point trying to dissuade her colleagues by saying that the allegation was too old and flimsy to be worth considering.

Once everything came to a head, with a Washington Post article that came even after the Judiciary Committee’s private closed-door hearing — when senators ask nominees about sensitive matters like alcoholism, sexual history and gambling debts — it was both too late and pointless to have a confidential FBI check. So the committee investigators took over, dutifully collecting sworn statements from alleged witnesses and holding multiple sworn phone calls with Kavanaugh — in which investigation the Democratic staff declined to participate.

That brings us to a hearing that revealed no new evidence but failed to overcome the presumption of innocence that anyone in Kavanaugh’s shoes must have. Not because his accusers must present proof beyond a reasonable doubt — this isn’t a criminal trial — but because a he-said/she-said situation, when compounded by bad faith and a media circus, inures to the accused.

That’s not to say that all senators are duty-bound to vote for Kavanaugh. To the contrary: Any senator, Democrat or Republican, who thinks that Kavanaugh’s approach to judging does violence to the Constitution or harms the rule of law is duty-bound to vote against him. In that, I disagree with Sen. Lindsey Graham, who defers to the President so long as the nominee is “qualified.” Ideology is and should be a valid consideration here.

But any senator who votes against Brett Kavanaugh because of Dr. Ford’s allegations—let alone the ridiculous ones that have emerged lately—brings shames on his or her office.

For the good of the country, there needs to be a vote on this nomination now. It won’t rehabilitate Kavanaugh’s reputation or heal political divisions, but it will stop the bleeding from this latest wound to the body politic.

Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.




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