The sequence of events that has unfolded since Friday, when we learned Sen. Dianne Feinstein, D-Calif., had been sitting on a mysterious allegation about Judge Brett Kavanaugh for months, now leaves his confirmation to the Supreme Court looking uncertain. In days, the vote went from being a formality to a serious question. Whispers of an enigmatic #MeToo allegation didn’t initially seem strong enough to derail his nomination until Kavanaugh’s accuser, a woman who says he sexually assaulted her at a party in high school, stepped forward and spoke to the press on Sunday.
The situation is both complicated and politically charged, a combination that does not typically produce good results. Moving forward, there are many questions to answer, and then questions on top of those questions. Confusing as that is, I think the conversation can be organized into three broader questions that, if answered, should clarify the Senate’s decision.
1. Is the allegation true?
2. If so, is the alleged conduct disqualifying?
3. Why did Feinstein sit on the information for months?
The answer to the third question may well be relevant to the first two. The Washington Examiner’s Timothy P. Carney addresses why here. But because we still know little of Feinstein’s reasoning, the question is best left separate from the others for now.
We will likely never have the benefit of complete certainty on the first question. Kavanaugh denies the accusation, as does the other man who was said to be in the room at the time. His accuser, Christine Blasey Ford, has agreed to testify before the Senate Judiciary Committee, which creates an important opportunity for transparency. That being said, even if her performance is convincing, so long as Kavanaugh denies the charge, there is no way of proving or refuting this allegation.
Even if we knew for sure that the accusation was true, we would still be left with the second question. All agree the alleged conduct would have been predatory, abusive, and horrific. But teenage boys can be capable of mistakenly (or drunkenly) committing such behavior, while also being capable of growing into respectful and decent men. Do Democrats really want to set a precedent that high school records of all future Supreme Court nominees are relevant, even if there is no indication they’ve behaved poorly as adults? Maybe they do. Maybe they feel the severity of the alleged behavior is disqualifying. But that’s an argument they will actually have to make, as much for this nomination process as those in the future.
Obtaining a satisfying answer to the first question will be a feat in and of itself, given the challenges of time and competing accounts. Even if we manage to get good information from Blasey Ford and/or Kavanaugh, that will leave us with the second question, which also produces no obvious or easy answers on its own. The third question is of less importance, but still needs to be addressed by Feinstein for the reason Sen. Susan Collins, R-Maine, notes here — the tactic seems to have been unfair both to Kavanaugh and his accuser.
Amid all the confusion and uncertainty, it’s helpful to keep perspective: What’s most important is determining whether the allegation is true, and then whether the alleged conduct is disqualifying.
