My Bottom Line on the Kavanaugh Situation
My last post on this subject for the weekend (I think).
As I have noted before, I think that the SCOTUS nominations of the Trump administration have been perhaps the most normal aspect of his presidency. He has nominated strict conservatives of the Federalist Society pedigree than one would have expected from any Generic Conservative Republican President. He has not, as I once though might be the case, nominated cronies or the highly unqualified (unlike, say, any number of his cabinet picks). Likewise, the drama and politics surrounding his nominees have been fairly standard (until to the allegations that have thrown the whole thing into turmoil). Of course, the specter of Garland haunts any Trump nomination making none of this fully normal.
In general, then, it has been my assumption that Trump would get the seat filled, but recognized that it was always possible that any given nominee might be derailed. So, from a macro-level approach my expectation has been since Kennedy retired that there would be a solidly conservative 5-4 majority on the Supreme Court. I believe this still to be the case. The question is whether that fifth seat will be Brett Kavanaugh or someone else.
I recognize the problem associated with denying Kavanaugh the seat solely on an allegation. Hence, my preference would be for the FBI to take this new information and engage in a thorough investigation. I don’t think that press accounts about what Mark Judge or anyone else has said constitutes an investigation. I just don’t think that potential witnesses will behave the same in the context of the FBI than they have in informal press contacts. An investigation, by definition, should be able to take disparate pieces of information and see if there are connections to determine if more is to be discovered. Just having dueling testimony by Kavanaugh and Ford strike me as wholly inadequate.
Ah, but then there’s the clock. The clock does not allow enough time to investigate before the mid-terms. The clock is political. Since there is no time to conduct an appropriate investigation, I am opposed to confirmation to such an important and powerful position. I think, in fact, that the right move is for the administration to withdraw the nomination and to name someone else. The macro level outcome that I noted above remains in place.
Yes, this is perhaps personally unfair to Kavanaugh. But, he has no personal right to the seat.
The bottom line is: either do an adequate investigation, however long that takes, or if the political clock is too unfavorable to the White House, withdraw and send up a new nomination. This is not an unreasonable position given that we are talking here about 1/9th of one three major constitutional institutions that form our basic system of government.
This has been my thought process much if the week, and the Ed Whelan nonsense only increased the intensity of my view. At a minimum, I think Kavanaugh needs to answer questions, under oath, about that stratagem in terms of what he knew about it (I still find it damning that he did not, to my knowledge, disavow that attempt to cast doubt on the attack by impugning a former classmate). I also remain curious as to how it was possible to so quickly have 65 women lined up to defend him.
Further, Ben Wittes’ essay in The Atlantic (Kavanaugh Bears the Burden of Proof) has just reinforced my view:
The manner in which Senate Republicans and Brett Kavanaugh’s supposed allies are championing the judge’s innocence should sting as the ultimate humiliation. They apparently don’t have sufficient confidence in the nominee to let a routine investigation take place before holding a hearing. They apparently don’t believe in him enough to make minor accommodations on the date of a hearing to a woman who is receiving death threats. They are publicly floating theories naming an alternative perpetrator—and then removing them and apologizing after those theories are picked up by Fox & Friends. Having held up Merrick Garland’s nomination for the better part of a year to get past one election, they are apparently so fearful of further erosion of support for their nominee that they feel the need to rush this matter to a vote just weeks before another one. In the era of #MeToo, their actions bespeak the fear of et tu. Their solution is haste—and not the sort of haste that suggests faith. It is the sort of haste that that has one eye on the midterms and the other eye cast downward.
If Kavanaugh were to ask my advice today—and to be clear, he hasn’t done so—I would tell him he almost certainly should have his nomination withdrawn. The circumstances in which he should fight this out are, in my view, extremely limited. I would advise him against letting Senate Republicans ram his nomination through in a fashion that will forever attach an asterisk to his service on the Supreme Court. Assuming she is not impugning him maliciously, Kavanaugh’s accuser, Christine Blasey Ford, deserves better than that. The Court deserves better than that. And Kavanaugh himself, if he is telling the truth about his conduct in high school, deserves better than to be confirmed under circumstances which tens of millions of people will regard, with good reason, as tainted.
I think Wittes gets the basic dynamic of what are going to see this week, assuming testimony does take place.
in this endeavor, Kavanaugh himself bears the burden of proof. This sounds like unjust ground to stake out in a society in which the accused is innocent until proven guilty. But in practical terms, Kavanaugh is the one who has to persuade the marginal senator to vote for him. He is the one who has to give Susan Collins and Lisa Murkowski enough confidence in him that they can vote to confirm believing they can defend their actions to a legion of angry voters. It is he, not Ford, who needs to count to 50.
At this point, this is accurate: will the allegations be enough to change Collins’ mind? I suspect it has already given red state Democrats enough of a reason to vote “no.”
And in regards to the effects on Kavanaugh, Wittes and I concur:
The injustice, in fact, is largely optical. The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.
Note that Wittes knows Kavanaugh personally, and even decided to basically give up interacting on Twitter just last week because he was being attacked for supporting Kavanaugh’s nomination.