Why the Kavanaugh Battle Is at a Tipping Point

(Bloomberg Opinion) -- The Senate Judiciary Committee hearing Thursday, when Supreme Court nominee Brett Kavanaugh and his accuser Christine Blasey Ford will both face questions about her accusations of assault, is going to be hard to watch for different reasons for different people. The cognitive dissonance stems from the fact that the hearing is functioning on two levels that coexist uncomfortably.

On one level, the hearing will be a televised capsule of the #MeToo moment, considering allegations of sexual assault against a significant public figure. On another level, the hearing will be pure political theater, one act of many in these hyperpartisan times.

In that political dimension, the relevant question isn’t what happened decades ago or who should be held accountable for it. Rather, Republican senators will be seeking the cover they need to do what party activists desperately want them to do: confirm Judge Kavanaugh and consolidate a conservative majority on the U.S. Supreme Court for decades to come.

The disjunction between these two paradigms for the hearing can already be seen in the run-up. Consider the announcement by the committee’s Republican majority that its members — all men — won’t be questioning Ford directly. Instead they have hired Rachel Mitchell, an Arizona prosecutor who specializes in sex-crimes cases, to ask the questions.

There is no problem of formal legal authority here. Senators can delegate question-asking to staff members if they so choose, and in some specialized hearings it might even be described as ordinary practice. But when television cameras are watching, modern senators almost always do the questioning themselves.

Seen from the standpoint of a #MeToo investigation, the decision to outsource the questioning to a woman who is not a senator seems at least a bit condescending. It looks as though the committee Republicans are so predetermined not to believe Ford that they need a buffer between them and her. A similar possibility is that the committee Republicans want to express skepticism about Ford’s account but don’t want to do it themselves on camera.

Understood politically, however, the decision not to question Ford directly has a certain logic to it. The Republicans remember the terrible optics when male Judiciary Committee members went after Anita Hill for her sexual harassment claims during Justice Clarence Thomas’s confirmation hearings in 1991. They don’t want to create the same visual again — because it would raise the cost of voting to confirm Kavanaugh.

The political aspects of the coming hearing also help explain why Kavanaugh has adopted a strategy of outright denial of all allegations, rather than offering apologies for drunken behavior and saying he doesn’t remember the incidents alleged to have happened. Kavanaugh is not seeking #MeToo absolution. He’s seeking to get confirmed to the Supreme Court.

Voting to confirm Kavanaugh is much easier for Senate Republicans if the nominee gives a straightforward denial. It allows senators to say that the facts are disputed and, given the doubt that creates, that they will vote to confirm an accomplished jurist with an otherwise strong record.

Throughout his earlier hearings before the committee, Kavanaugh skillfully deployed the idea of precedent. He said that there was precedent about precedent, and in an original twist, he invoked the precedent of earlier justices in their confirmation hearings.

There is a precedent for Kavanaugh’s strategy of denial as well: Thomas’s approach. Thomas didn’t apologize for making Hill feel harassed, nor did he say there had been a misunderstanding between them. He flatly denied her allegations. And the Senate confirmed him, at least in part because the disagreement about the facts allowed them to say they believed Thomas.

The one way in which the two paradigms of #MeToo and the political theater of confirmation might come together is in the reaction to the allegations of sexual abuse that lawyer Michael Avenatti released Wednesday.

It has become a familiar part of the #MeToo script that initial allegations come to form part of a repeated pattern. In almost no instance has a prominent harasser or abuser been held accountable for isolated or individual acts.

Taken on their own, allegations from Ford and from Yale classmate Deborah Ramirez that Kavanaugh exposed himself to her at a college party, do not form a pattern as clear and repeated as we have come to expect in well-publicized #MeToo cases.

The question is whether the sworn affidavit revealed by Avanatti has the substance that is enough to count as a pattern of sexual abuse in the public mind. His client, Julie Swetnick, said she was present at high school parties with Kavanaugh where he participated in efforts to get girls drunk so that a group of boys could have sex with them. Swetnick says in the affidavit that she was raped at one such party.

The existence of such a pattern might change the political calculus for Republican senators. It’s one (political) thing for senators to accept Kavanaugh’s account of the Ford and Ramirez allegations, neither of which has been specifically confirmed on the record by named witnesses to the events. It would be quite another to dismiss allegations supported by third-party witnesses. Swetnick says she knows of such witnesses.

Anything can happen before Friday, when the Senate committee has scheduled a vote, of course. Until the new allegations, it seemed most probable that the political dimension of the hearings will outweigh the #MeToo dimension. Ultimately, senators are politicians more than they are cultural actors. If that’s right, Kavanaugh is likely to be confirmed. The consequences will be profound culturally, politically and constitutionally.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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