AT MIDDAY on September 27th Brett Kavanaugh’s prospects of reaching the Supreme Court Bench looked distinctly shaky. Dr Christine Blasey Ford, an academic psychologist who accuses him of sexually assaulting her 36 years ago, had given a moving and credible account of the alleged attack to the Senate Judiciary Committee. Even President Donald Trump, glued to the televised hearing on Air Force One, was reported to have found her plausible. But then Mr Kavanaugh came out swinging and, at least in the view of the committee’s Republican members, most or all of whom will vote to elevate him on September 28th, everything changed.
Ms Blasey (the name she goes by professionally) had appeared nervous and tearful at times, but measured and obliging. The 53-year-old judge, who has been accused of sexual assault by three women, was tearful, too. Yet he was livid with rage and deeply partisan resentfulness. His opening statement, in which he repeated his previous denials of the allegations, blamed them largely on shadowy left-wing forces. “This whole two-week effort has been a calculated and orchestrated political hit fuelled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside, left-wing opposition groups,” he said, in a state of high emotion. He shouted and snarled angrily at the committee’s Democratic senators, frequently pausing to wipe away tears. He said the confirmation process had been badly damaged by the “circus” that his hearings had become. His family, he said, had been “totally and permanently destroyed” by it.
Republican senators of the committee took their cue from this. Mr Kavanaugh, most seemed to agree, was the victim of a vicious Democratic plot to prevent the Supreme Court bench getting a conservative majority. Sweeping aside their designated cross-examiner (Rachel Mitchell, a prosecutor from Arizona who specialises in sex crimes, who interviewed Ms Blasey on their behalf), Lindsey Graham of South Carolina slammed the hearing as “the most unethical sham since I’ve been in politics”. Jabbing his finger at his Democratic colleagues, he yelled: “What you want to do is destroy this guy’s life, hold this seat open, and hope you win in 2020!” No more was heard from Ms Mitchell after that. Instead Mr Graham’s Republicans colleagues also waded in. “This is not advise and consent but search and destroy!” said Thom Tillis of North Carolina. The same military phrase was echoed by other Republicans throughout the day, suggesting it had been pre-rehearsed.
There was some truth to the senators’ claims. Democrats believe the Republicans have no right to the conservative majority that Mr Kavanaugh’s appointment to the court would make. Most Democratic senators are therefore straightforwardly and irreversibly against confirming him. Perhaps, too, Mr Kavanaugh and his Republican admirers are right to be angry at the way Ms Blasey’s allegation has emerged at the 11th hour of his confirmation process. Dianne Feinstein of California, the senior Democrat on the committee, had been sitting on it for weeks, it turned out. The Republicans say she was waiting for an opportunity to cause Mr Kavanaugh maximum embarrassment and damage. Ms Feinstein says, to the contrary, she was bound by Ms Blasey’s request for confidentiality, which the alleged victim dropped only after journalists got hold of her story. And who knows? Perhaps the Republicans are right. But even if they are, it is scarcely relevant.
The real purpose of the day’s hearings, which lasted for eight hours and were watched by millions, was to examine the possible credibility of Ms Blasey’s serious allegations against Mr Kavanaugh. She claims that, when she was 15, he and his high-school pal Mark Judge, while both “extremely inebriated”, locked her in a bedroom during a party, threw her onto a bed and that Mr Kavanaugh then launched himself at her. She says he lay on top of her, groped and tried to undress her, while putting his hand over her mouth to stifle her screams. She has provided hardly any evidence to corroborate that claim. Ms Blasey has medical notes to show that she described the alleged incident to her therapist, on more than one occasion, going back several years. But neither of the other two people she says were present at the party has substantiated any part of her story. Her devastatingly damaging allegation therefore comes down to her word against his.
It is hard to imagine a right-minded jury convicting Mr Kavanaugh on that basis. The judge has impeccable character witnesses and performed years of public service, over the course of which he has been vetted at least thrice by the FBI. But, crucially, the Senate committee was not being asked to reach a verdict on his innocence or guilt. It was being asked to assess whether Ms Blasey’s testimony, and Mr Kavanaugh’s response, raised sufficiently reasonable concerns as to suggest that, absent further investigations, and with apologies to the judge, the senators had better look elsewhere to fill one of the biggest jobs in America. Both testimony and response crossed that bar.
The Republicans had brought in Ms Mitchell in an effort to improve their optics. Having 11 powerful men cross-examine a woman who claims to be the victim of a violent sexual assault would not have been a good look. Yet it was quickly apparent that Ms Mitchell had nonetheless been given a strong prosecutorial brief. Her task was to raise doubt about Ms Blasey’s memory and motives. She failed.
Ms Blasey came across as nervous, likeable and sincere. She was clear and emphatic in describing the alleged assault, sometimes in painful detail. “Indelible in the hippocampus is the laughter,” she said, revealing her neurological expertise. “The uproarious laughter between the two and their having fun at my expense.” There had been suggestions that she might have mistaken Mr Kavanaugh for someone else. No, she said, she was “100%” sure he was her assailant. None of the many details that she could not remember—including precisely when and where the party took place, and how she had travelled home from it—seemed necessarily to invalidate her claim. Ms Mitchell, having failed to cast doubt on any aspect of Ms Blasey’s version of the event, devoted her closing remarks to criticising the stop-start way in which she had been forced to carry out her cross-examination.
In later comments to Mr Kavanaugh, Jeff Flake of Arizona, one of the few Republicans on the committee considered to be open-minded on the matter, described Ms Blasey’s testimony as “compelling”. In fact, it was horrifying. And Mr Kavanaugh’s was troubling.
His partisan rant made a mockery of the polite but necessary fiction that federal judges are above politics. That has always been especially hard to believe of Mr Kavanaugh, given that he was once a highly-partisan legal whizz for Ken Starr’s investigation into Bill Clinton. His hostility towards the left, which is henceforth undeniable, would make him an exceptionally divisive addition to the court. The way he revealed it on the Hill also raises doubts about his judgment. However much Democrats might want Ms Blasey to be believed, she is patently acting independently of them. In her testimony, she had described her frustrated efforts to relay the details of her alleged assault by Mr Kavanaugh to the relevant authorities even before his nomination (and therefore before any Democrat had taken much notice of him). Blaming his situation on the left was at best an expression of Mr Kavanaugh’s bias. Or else it was a tactical ploy to distract attention from Ms Blasey’s claims.
That was not the only way Mr Kavanaugh undermined his case. In response to questions from Democratic senators, he was prickly and evasive on the subject of his past drinking. He had no right to be. There are reasonable allegations that the judge at times drank considerably more than he has admitted to. Having previously presented himself as a clean-living choirboy sort, he now acknowledges that he “likes beer” and has sometimes drunk too much of it. Several witnesses have suggested that may be underdoing it. Given that Ms Blasey describes him as having been so drunk during the alleged assault that he might plausibly not have remembered it, the issue is germane. Yet Mr Kavanaugh’s response to being asked whether he ever drank to excess was self-righteous and aggressive. “You’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before…?” asked Amy Klobuchar of Minnesota. “You’re talking about blackout. I don’t know. Have you?” the judge shot back. This would have been unacceptably rude even if Ms Klobuchar were not, as she had just mentioned to him, the daughter of a lifelong alcoholic. (Mr Kavanaugh later apologised for his remark.) No doubt, he and his family have been under dreadful pressure. But the job he aspires to is a weighty one and his temperamental fitness for it—even setting aside Ms Blasey’s allegations—seems less certain than it did.
Based on the day’s hearings, the justice committee should not vote to support Mr Kavanaugh’s confirmation. Ms Blasey’s testimony was too convincing to ignore. His performance was too intemperate and political. Fortunately for the judge, the committee does not need to vote just yet, however. It could instead ask the administration to order an FBI investigation of Ms Blasey’s claims. It could also summon Mr Kavanaugh’s alleged accomplice, Mr Judge, who has denied the claims but refused to answer questions about them. Several of the Democrats asked Mr Kavanaugh to agree that these would be appropriate measures. How could he not? What prosecutor would refuse to call an alleged eye-witness to a crime to give evidence? What judge would fail to agree to that?
Such an independent process could be completed in a mere 10 days, pleaded Chris Coons of Delaware. In response to these suggestions, Mr Kavanaugh dodged the question, raised doubts about the usefulness of an FBI investigation, said he was a good man, and suggested 10 days was too long a time for him to wait. “Senator, do you know how long the last 10 days have been for us?” he said. “Every day is like an eternity.” Ms Blasey, who none of the Republicans dared say they disbelieve, claims to have been suffering the traumatic effects of a violent sexual assault for over three decades. She provided painful insights into that: she said she insisted that her house have two front-doors, for example, in order to accommodate her post-attack claustrophobia. Mr Kavanaugh’s self-righteous anger seemed all the more ill-judged, and unpleasant, by comparison.
Even more fortunately for the judge, however, most of the Republicans on the committee were not open-minded about Ms Blasey’s testimony. In their remarks to Mr Kavanaugh, they agreed with him that the main problem here was the beastly Democrats. They asked him almost nothing about his accuser’s claims. “This has been one of the most shameful chapters in the history of the United States Senate,” said Ted Cruz of Texas. “I can’t think of a more embarrassing scandal for the United States Senate since the McCarthy hearings”, said John Cornyn, also of Texas.
After the hearing concluded, all Senate Republicans met to ascertain, in effect, whether they had the votes to confirm Mr Kavanaugh. If every Democrat votes against him, the Republicans cannot afford to drop more than a single vote from their own side. Two moderate women, Susan Collins of Maine and Lisa Murkowski of Alaska, are reported to have been wavering. So might Mr Flake be. “I want to give it some thought tonight. I do. So, this is a tough decision. It really is,” he said, before leaving the Senate. Yet the fact that the judiciary committee’s Republican chairman, Chuck Grassley of Iowa, has scheduled a preliminary vote for 9.30am on September 28th suggests he thinks Mr Flake will fall into line. And perhaps then the two Republican women can be dissuaded from causing trouble. It is a bad business altogether.
