In many ways, Judge Brett Kavanaugh is the perfect Supreme Court nominee. For a dozen years, he has served with distinction on the United States Court of Appeals for the D.C. Circuit, the nation’s second most-powerful court. Before that, he held top legal jobs in the federal government, including the White House Counsel’s Office, and was a partner at a leading law firm.
He’s almost universally praised by his former clerks, who are Republicans, Democrats and independents. He’s a devoted husband and father of two daughters who is celebrated as a leader in the federal judiciary when it comes to hiring and mentoring women.
During and after his confirmation hearings, many unfair and unfounded charges were made against him. Democratic senators accused Judge Kavanaugh of committing perjury at his two prior confirmation hearings — charges that do not withstand scrutiny. Abortion rights activists attacked him for referring to certain forms of contraception as “abortion-inducing drugs” — but when he uttered those words, he was simply describing the litigation position of a religious group, not stating his own views.
But now Mr. Kavanaugh faces new allegations, brought by a woman named Christine Blasey Ford. Her disturbing claims deserve further investigation by the Senate Judiciary Committee, even if it means delaying his confirmation vote. A delay wouldn’t just be for her sake, but for the sake of Judge Kavanaugh and the Supreme Court itself.
The story began last week, when Senator Dianne Feinstein forwarded to the F.B.I. a letter in which a woman claimed that Mr. Kavanaugh sexually assaulted her when they were both in high school. Initially it seemed that nothing would happen, since the accuser was unwilling to come forward. The F.B.I. declined to open an investigation and the information was simply added to Kavanaugh’s background file for senators to consider or ignore as they saw fit.
But on Sunday, Ms. Ford, who wrote the letter, broke her silence. In an interview with The Washington Post, the 51-year-old research psychologist claimed that at a summer party in the early 1980s, when she was around 15 and he was around 17, a drunken Mr. Kavanaugh pinned her to a bed, groped her and attempted to remove her clothes. When she tried to scream, she says he put his hand over her mouth. “I thought he might inadvertently kill me,” she told The Post.
According to Ms. Ford, at some point Mark Judge, a friend of Mr. Kavanaugh’s who was also drunk, jumped on top of them — causing them all to fall to the floor, and allowing her to escape.
Mr. Kavanaugh, now 53, has strongly denied her claims: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.” Mr. Judge has also denied the claims.
Based on these denials, many supporters of Mr. Kavanaugh view Ms. Ford’s claims, raised after the conclusion of his confirmation hearings and just days before the Senate Judiciary Committee vote, as eleventh-hour character assassination. They argue that his confirmation should move forward, full speed ahead.
I respectfully disagree. The confirmation should be delayed until there is a full investigation, followed by Senate Judiciary Committee hearings, into Ms. Ford’s accusations.
She passed a polygraph test administered by a former F.B.I. agent, and her therapist provided The Washington Post with notes reflecting that Ms. Ford described the alleged incident in 2012. But her case is far from ironclad.
For example, she can’t remember or remains uncertain about many key details (including the year of the alleged incident); she told nobody contemporaneously (unlike many other alleged victims of sexual assault); and both Mr. Kavanaugh and his friend deny it. There is, as far as we know, no physical evidence. It’s a true “she said, he said” — or, rather, “they said,” since two people deny this incident ever happened.
But Ms. Ford should at least be heard, and not just because the #MeToo movement has made the importance of hearing out victims of alleged sexual misconduct even more obvious than it already was. The alleged perpetrator and witness should be heard from as well, and everyone involved should be placed under oath and subjected to aggressive questioning. (At least three Republican senators — Jeff Flake of Arizona, Lindsey Graham of South Carolina and Bob Corker of Tennessee — have expressed interest in hearing more about Ms. Ford's account, but there's no consensus yet on the preferred process.)
The object lesson here is the 1991 confirmation for Justice Clarence Thomas. After a former colleague, Anita Hill, raised allegations of multiple instances of sexual harassment against Mr. Thomas, the senators heard from both key parties before the confirmation vote.
The hearings had their flaws. Most notably, several witnesses on Ms. Hill’s side never got to testify. But the core claims were placed before the Senate before the vote.
This ultimately redounded to Justice Thomas’s benefit. Now, whenever Ms. Hill’s sexual harassment allegations are raised, he or his defenders can at least say they were explored by the senators and ultimately found insufficient to deny Mr. Thomas a seat on the Supreme Court.
If Mr. Kavanaugh is confirmed without further investigation of Ms. Ford’s charges, he and his defenders will not even be able to claim what Mr. Thomas’s defenders can. Judge Kavanaugh will be dogged by these accusations throughout his entire, likely decades-long service on the court. And that will lead some to question the legitimacy not just of his appointment but of the court as an institution — especially when it decides knotty social and political issues by a 5-4 vote.
Considering the small number of witnesses involved — perhaps Ms. Ford, Mr. Kavanaugh, Mr. Judge, Ms. Ford’s husband and her therapist — an F.B.I. investigation followed by hearings wouldn’t take very long. The process might not be complete before the start of the Supreme Court’s new term on Oct. 1, but it should easily be able to be done before the midterm elections, if that’s the concern of Senate Republicans.
The way in which Ms. Ford’s allegations came to light was, to put it charitably, deeply unfortunate. These claims should have been thoroughly and discreetly investigated weeks ago, by nonpartisan F.B.I. agents and bipartisan Senate investigators, in a way that protected Christine Ford’s privacy and Brett Kavanaugh’s good name. But here we are.
It is quite possible — or even likely — that hearings won’t prevent Brett Kavanaugh from being confirmed given the equivocal evidence against him and, perhaps even more important, the number of Republicans and red-state Democrats in the Senate. But due process, which ought to matter when it comes to filling the critical seat on the highest court in the land, calls for nothing less.
