In about ten days, this essay could easily become an object of mockery, to be derided from both sides of the political spectrum. If the Senate Judiciary Committee confirms Kavanaugh, the right will dance on the premise as you’d dance on the grave of an enemy. More painfully for me, leftists will scorn it as the latest example of dewy-eyed liberal naivete concerning the true sinister depths of the Republican party.
I do not want to fall victim to that last particular ailment. I wear my cynicism toward the GOP with a wounded pride, and yes, I’ve seen this play before—a handful of senators make sincere-sounding clucks that #resistance types mistake for noble reservations, only to fold comprehensively at the critical moment and march in lockstep with Commandant McConnell. This ceremonial grandstanding, in fact, has become a treasured part of the process, and no loathsome piece of conservative legislation or executive policy can be complete without the theater of false reluctance. It’s not enough to beat ordinary people into submission, apparently; they have to offer the illusion of hope first.
So fine, maybe I’m a sucker for thinking Kavanaugh is dead in the water. Maybe I should realize that senators like Flake, Corker, Murkowski, and Collins are blowing smoke like always when they make cautious forays into questioning the fitness of Trump’s nominee. Maybe the fact that the Judiciary Committee has delayed its Thursday vote in order to hear testimony from Christine Blasey Ford—the woman who accused Kavanaugh of sexual assault in his high school days—is just a way to fool the public into believing they have true “concerns.”
On this last count, you’ll get no argument from me. I believe they are inviting Ford as a way to cover their tails, and that they have every intent of pushing Kavanaugh through, assault be damned. Currently. I’m under no illusion that any congressional Republican wants to do the “right thing.”
I also believe they know that a failure to confirm Kavanaugh would telegraph to the American people yet again that, despite controlling every branch of government, they are a stunningly incompetent political party. And I believe they know this would kill them in the midterms, and I believe they are desperate to avoid another legislative disaster on par with the healthcare debacle…notwithstanding idiots like Megan McCardle who believe bungling the Kavanaugh nomination will somehow fire up Republican voters.
Enough disclaimers? I hope so, because I’m about to get to the point: Brett Kavanaugh finds himself on the wrong side of popular momentum, and a situation that has turned quite dire for him and his allies in government is about to get much worse. His entire candidacy is about to become untenable, and I would bet anything that he’s going to withdraw under Republican pressure before his confirmation ever comes to a vote.
I am not the first, and I will definitely not be the last, to point out the eerie historical parallels to the 1991 Clarence Thomas confirmation hearings. Thomas, a conservative, was accused of sexual harassment by his former assistant Anita Hill, throwing a kink into what looked a sure-thing confirmation. Hearings were held, Republicans attacked her credibility in some incredibly ugly ways (led by Orrin Hatch, whose modus operandi hasn’t changed in 27 years), Hill passed a polygraph, Thomas denied everything. It’s all very, very familiar.
In that case, Judiciary Committee chair Joe Biden struck a deal with Senate Republicans to disallow testimony from four character witnesses for Hill, and Thomas was confirmed by a 52-48 vote, aided by 11 Democrats—most of them from the southeast—who broke ranks.
The video of Thomas’ speech is remarkable to watch today for the way he brazenly lectures Hill, the committee, and anyone who had the temerity to question him.
Suffice it to say, we are living in a very different time.
Let’s try to imagine what will happen next Monday when Christine Blasey Ford sits in front of the Judiciary Committee and a massive television audience. The #MeToo movement has brought the issue of sexual harassment and assault to the forefront, and unlike Anita Hill, who was demonized and harangued with brutal efficiency, Ford will elicit nothing but sympathy from the vast majority of viewers. The men on the committee—and it’s all men on the Republican side, just as it was in 1991—will know this. Or they should, anyway. Chairman Chuck Grassley, Hatch, Lindsey Graham, and the rest of their Republican colleagues are in a no-win situation. Outside of Trump’s base of monsters, America in 2018 is not a place that looks kindly on silencing alleged victims of sexual abuse. A group of old white men trying to cast doubt on someone like Ford is the definition of poor optics, and the Democrats know that and will do everything in their power to cast their opposites as ghouls who are trying to silence women. And that will be easy, because it will be true.
Which brings us to the question of the accusations themselves. I believe they’re legitimate, and that’s not based on some dogmatic #BelieveWomen mindset. I’m saying that in this specific case, Ford’s accusations ring true for me, just as Anita Hill’s rang true in 1991. Accuse me of bias if you will, but I think it’s also clear that most Republicans believe Ford is telling the truth. Why? Because when you look at their recent defenses of Kavanaugh, almost none fall back on the “she’s a liar!” approach, and almost all follow the “well, he was only 17, we shouldn’t judge him!” strategy.
Paste’s Jacob Weindling did a thorough job debunking that line of defense on Monday, but it’s worth noting here that if what Ford says is true, Kavanaugh could easily have spent years in prison.
Just to clarify, it’s not unusual for sexual assault by a 17 year old to be punished by decades in prison. Until recently, kids as young as 13 were sometimes given life in prison without the possibility of parole for sexual assault. See Sullivan v. Florida (SCOTUS 2010).
— David Menschel (@davidminpdx) September 17, 2018
Literally thousands of people go to prison for decades for things they did when they were 17.
We can debate the wisdom of criminal sentencing laws, but treating a 17-year-old’s behavior as “relevant” for the rest of his or her life is not a “new rule.” https://t.co/d7DEEIsdnJ
— Jesse Wegman (@jessewegman) September 17, 2018
If Kavanaugh had served time behind bars, his career would look very different right now, and the GOP wouldn’t even begin to consider him worthy of serving on the Supreme Court.
That said, it’s a moot argument—Kavanaugh is not owning up to anything, or seeking sympathy for mistakes made in his youth. He’s outright denying Ford’s accusation, which means that he and his defenders are not on the same page. By claiming Ford’s accusation is pure fiction, he’s bypassing the “people change!” loophole. If his denial is not true, it would be impossible to argue that he’s learned anything or transformed in any significant way from the time of the assault. Ford’s story is either true or it’s not, and if Kavanaugh’s lying, he’s not qualified.
Finally, there’s the reality of our stark polarization and the obstacles it places in the way of confirmation. It’s amazing to look back at the Clarence Thomas Senate vote and see all the Democrats who voted to confirm him, and the pair of Republicans who voted “nay.” That kind of aisle-crossing seems beyond the realm of possibility today, and indeed you can bet that the Democrats and the independents who caucus with them will form a solid wall against Kavanaugh. That wall is only 49 votes strong, but it still puts the Republicans on the spot: If they’re going to confirm a potential sex offender, they have to stand up and do it themselves, in plain sight, and face the subsequent music.
As I said, it’s an untenable situation. Kavanaugh has placed the entire Republican senate in the most awkward possible position, and it’s going to get worse as the story develops over the next week. Ford’s testimony on Monday will almost certainly be an utter disaster for the GOP, and if she appears credible and they still vote to confirm Kavanaugh, they’ll be sustaining another black eye before the increasingly ominous midterms.
There are already Republican senators who clearly don’t want to support Kavanaugh. Susan Collins is one—there’s an ongoing campaign that has raised $1.1 million, all of which will go to her 2020 opponent if she votes for Kavanaugh—and though her public comments have been tentative thus far, you can bet that she, and others, will start exerting pressure behind the scenes, not least because anyone seen as a “swing” vote will be a constant media target until the Kavanaugh affair is over.
At some point, Chuck Grassley and Mitch McConnell will have to ask themselves a tough question: Is it better to go through the misery of the next week, when more accusers may emerge and when Trump will almost definitely tweet something horrendous that makes their jobs impossible, only to then look like villains in front of an alleged harassment victim, and then, best case scenario, have to vote Kavanaugh through in front of an angry nation, or at worst back down and solidify their two-year reputation for political impotence?
Or is it better to dump Kavanaugh now, let Trump and his biggest Senate allies blame the tricky liberals for their tricky tricks in an attempt to energize the base (“a Supreme Court seat is at stake!”), and avoid certain humiliation? After which, they can regroup, attempt to survive the midterms, and confirm an ideologue who isn’t also an alleged sex criminal?
—Thinks for approximately two seconds—
Brett Kavanaugh is screwed.