Last week, Supreme Court confirmation proceedings for Judge Brett Kavanaugh took an unexpected turn: At the eleventh hour, allegations of decades-old sexual misconduct emerged in an effort to derail his confirmation.
As the Washington Post and others have reported, the accuser, Dr. Christine Blasey Ford, wrote a letter to Sen. Dianne Feinstein, D-Calif., as far back as July. Yet the ranking member sat on the information for weeks, perhaps because she doubted the credibility of an allegation more than three decades old.
Indeed, it stretches credulity to say that Feinstein believed these allegations given that she refused to question Kavanaugh about them in a closed session, where the allegations could have been vetted without posturing for the press. Then, on the eve of Kavanaugh’s confirmation, the ranking member changed her mind and went to the press. In doing so, Democrats decided to gamble a good man’s reputation for political gain.
After Ford went public with her story, Chairman Chuck Grassley, R-Iowa, invited both her and Kavanaugh to testify before the Senate Judiciary Committee on Monday, Sept. 24. A public hearing would certainly not have been Republicans’ first choice, and people are right to expect partisan grandstanding. But given the public nature and timing of the accusations, and Kavanaugh’s right to respond, Democrats left us no other choice.
Regardless of how we got here, Republicans have a difficult question to answer: “What now?”
At this point, we don’t know whether the hearing will go forward. Democrats and Ford are demanding that certain preconditions be met. In particular, Ford’s legal team said in a letter to Grassley that they want an FBI investigation to take place before Ford testifies. But as the Justice Department stated earlier this week, the allegations do not involve any potential crime over which the FBI would have jurisdiction, and it is not the role of the FBI during background investigations to judge the credibility of accusations. Rather, the FBI’s role is to evaluate whether a nominee could pose a national security risk. Democrats point to the Anita Hill investigation as an analogue, but Hill was a federal employee alleging misconduct by a superior on federal property. There was a clear federal nexus. No such nexus exists here.
If the hearing does go forward, it will be important to remember that a Senate hearing is not a criminal trial. There is no judge and jury, no pre-defined burden of proof. Senators must decide what standard to apply in deciding whether Kavanaugh should be confirmed, and we need to find actionable facts and evidence.
Here is how I see it: Senators should ask if Judge Kavanaugh is someone other than the well-qualified nominee we have examined in not one but three high-profile confirmation hearings. Our duty is to determine if he is someone other than the outstanding jurist he has shown himself to be during more than 30 hours of public testimony, 12 years on the second-highest court in the land, and a lifetime spent in the public eye. Those voting on his confirmation will have to determine if Ford’s account meets the threshold necessary to declare Brett Kavanaugh unfit to serve on the Supreme Court.
This is a solemn task. If the hearing goes forward, it should be a forum for Ford to share her testimony with an engaged and respectful panel. It should also be a chance for both Ford and Kavanaugh to directly address these allegations.
Kavanaugh will have the opportunity to answer questions about his alleged conduct. It should be noted that both Kavanaugh and the only other named witness have strongly and categorically denied Ford’s accusation. Kavanaugh must answer, under oath, whether he ever engaged in any conduct like that described by Ford.
Likewise, Ford will be called on to fill in her story. Ford has acknowledged that she “does not remember some key details of the incident” from more than 30 years ago. There may be limited corroborating evidence, or no corroborating evidence, given the passage of time and her decision not to talk to anyone about the incident until 2012. Ford may also need to address some of the apparent discrepancies between her therapist’s notes, public statements made by her attorney, and her letter to Feinstein.
No matter the outcome, Democrats should be held responsible for circumventing the very process that protects people like Ford. Their decision to reveal this allegation at the most politically damaging moment reeks of opportunism. Grassley has a strong history of protecting whistleblowers and maintaining confidentiality. Democrats could have worked with him; they chose not to. Instead of raising this issue at the public hearing or in the closed session—which is the usual venue for these kinds of questions—Democrats went straight to the media, knowing full well that the leak would publicly reveal Ford’s identity. They also knew that Kavanaugh’s reputation would be forever tarnished by this allegation, even if it proved to be false. Their reckless behavior will do lasting damage to Dr. Ford, to Judge Kavanaugh, and to the public trust.
I agree with my colleague, Sen. Susan Collins, R-Maine: “By not bringing this out earlier, after having had this information for more than six weeks, [Democrats] have managed to cast a cloud of doubt on both the professor and the judge.” By taking a serious matter and turning it into a political football, my colleagues have done a massive disservice to Dr. Ford and to victims everywhere.
But Democrats can begin to make amends for the cynical way they have handled these allegations by working with Republicans in a bipartisan way, following the established procedures of the Senate Judiciary Committee to get the facts expeditiously. This is their chance to prove that their first priority here is the truth, not politics.
Sen. Orrin Hatch, R-Utah, is a former chair of the Senate Judiciary Committee and a current member. He is also President pro tempore of the Senate.
