Brett Kavanaugh Is Cursed Either Way

(Bloomberg Opinion) -- One way or another, Brett Kavanaugh will have to pay.

He will not necessarily pay explicitly for whatever it was he did or didn’t do on that contested night long ago. Although if Christine Blasey Ford appears to testify before the Senate Judiciary Committee, and if she acquits herself credibly, then Kavanaugh is unlikely ever to sit on the Supreme Court – no matter what Senate Republican leader Mitch McConnell says.

Kavanaugh can wait to see if Ford’s allegations fall apart under questioning. It’s possible she’ll prove a jumble of contradictions. But from what we know so far, it’s hard to imagine she would. Ford doesn’t have to be sure of the color of paint on the wall 35 years ago. She only needs to be sure of the details of the attack as she has already described it.

Conservatives viewing her actions as a product of Democratic skulduggery fool themselves. Her allegations were problematic for Democratic Senator Dianne Feinstein, who first received them in confidence. If Democrats had plotted to weaponize the allegations for best effect, this late-inning muddle would not have resulted.

If McConnell is correct and Republicans manage to push Kavanaugh through to the high court, no matter what, Kavanaugh won’t be out of the woods.

This is not 1991, when Anita Hill accused soon-to-be Supreme Court Justice Clarence Thomas of sexual harassment. And Kavanaugh, the beneficiary of virtually every privilege that status and education can afford, is not Thomas.

Democrats in 1991 were already the party of feminists. But many of the Democratic men in Congress – Barbara Mikulski was the lone Democratic woman in the Senate – were just as doltish toward a female accuser as Republican senators are today.

That’s no longer the case. Democrats have four women on the Judiciary Committee, and the men are so different from the cast of 1991 that Senator Chris Coons of Delaware has publicly mused that maybe he should cede his committee time to his two female colleagues who are former prosecutors and superior interviewers.

More important, the Republican Party of 1991 is not the party of 2018. The party leader then was George H.W. Bush, a war hero with pronounced social graces. The current leader is a habitual liar and crude demagogue who has been accused of sexual predation by more than a dozen women while continuing to behave as cad-in-chief.

The GOP of 2018 views the Supreme Court differently as well. Republicans were not facing electoral attrition in those days, desperately trying to sabotage the future. Republicans had held the presidency for three terms and were on the verge of a historic victory in the House over a corrupt and complacent Democratic majority.

Now, Republicans are investing in a partisan court to deliver partisan outcomes to advance partisan goals that are insulated from democratic accountability, such as elections and popular opinion, which Republicans increasingly fear.

That’s why they killed the legitimate nomination of Merrick Garland to the court. And it’s why bad faith saturates their every act concerning the court; they view it as an antidemocratic firewall to protect their culturally narrow and politically unpopular agenda.

The Clarence Thomas battle ended when Thomas took his seat on the court. The Kavanaugh war could escalate if he reaches the same height. Trump’s multifaceted attacks on rule of law and his sprawling corruption, ignored, excused or fully embraced by the Republican Congress, have clarified the stakes for Democrats. It’s no longer just about who gets to run things until the other guys take over. David Frum’s ominous insight, that conservatives forced to choose between democracy and conservatism would choose the latter, is now operationalized in every branch of government.

It will be in Democrats’ political interest to delegitimize a partisan Republican court waging war against a Congress and state governments under Democratic control. When Democrats regain sufficient strength in Washington, Kavanaugh will appear to them as a wounded, vulnerable prey.

Democrats can revisit evidence of his misleading testimony. They can pursue documentary corroboration, among the vast trove to which Republicans denied the Democrats and the public access, to buttress potential claims of perjury. And if Ford is bullied out of her moment now, they can give the alleged victim a belated but still-powerful platform, designed to her specifications.  

A public re-vetting of Kavanaugh would take place in a very different context – almost certainly after special counsel Robert Mueller has given an accounting of his investigation into Donald Trump. By the time Kavanaugh’s case would be reopened and relitigated by a Democratic majority, perhaps not until 2021, everything Trump previously touched will likely appear tainted, and suspect.

The Kavanaugh saga is still fluid and its outcome uncertain. Kavanaugh might yet make it to the Supreme Court. But barring the unlikely collapse of Ford’s allegations, questions of Kavanaugh’s legitimacy will not end. Sooner or later the chalice will reveal itself to be poisoned.  

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

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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