Why conservatives should just give up on Kavanaugh

He isn't worth it

Brett Kavanaugh and Republicans.
(Image credit: Chip Somodevilla/Getty Images)

Heaven help us. The libs are at it again, doing that thing they do where they use time machines to travel more than half a decade into the past to prefabricate notes from psychiatrists attesting to the veracity of obviously spurious accusations made against Brett Kavanaugh, the learned doctor of the law and total non-fratboy whom President Trump has nominated to the Supreme Court. No doubt Dianne Feinstein and her fellow members of the anti-American cabal borrowed the space-age device from Joy Reid's hackers.

Seriously, though. At present there is no credible defense that can be made of Kavanaugh. No commentator has enough evidence to argue that the accusation made against him is untrue. A categorical denial from anyone but the man himself — or from Mark Judge, the Washington-based journalist who is accused of having been his co-conspirator before thinking better of the whole thing and throwing Kavanaugh off their alleged 15-year-old victim — is on its face ludicrous. Und wovon man nicht reden kann, darüber muss man schweigen, Wittgenstein wrote, which is German for "You don't know, so shut up, nerds."

A stranger, and far more common, response has involved some variation of the claim that pinning a woman down and attempting to strip off her clothes is normal teenaged behavior. You know how kids are. They goof with their pals, they sneak a few beers from the fridge, they team up on girls, throw them on beds, grab at them, try to force them to get naked. Horseplay. Kids stuff. Boys will be boys. Etc.

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I cannot pronounce upon the general veracity of this claim, in the 1980s or today. I hope that it is false. It certainly does not speak to my own experience of what American not-quite-adults did with their free time in the twilight years of the Bush presidency. But maybe I am outside the middle of the curve.

But really, who cares how common it is or was? It is also increasingly common in this country to take synthetic opioids over and over again until blood comes out of your eye sockets and you fall over dead. Let us politely elide what is common or not unheard of or all but ubiquitous and talk about what is right and wrong. My head tells me that even very young people do very wicked things for which they should later be allowed to repent. My heart asks me whether I can imagine a 17-year-old Nino Scalia or Sam Alito being accused of such a thing — and the answer is no, and that old-fashioned talk about character really does matter, not least of all when it comes to lifetime appointments.

It is impossible to predict what will be revealed on Monday, if both Kavanaugh and his accuser testify in front of the Senate. While it is unlikely, given the amount of time that has elapsed, that enough evidence will emerge to say anything definitive about the alleged incident, it is already the case that the accusations have scandalized the American people. For good or ill, fairly or otherwise, millions of us will think of Kavanaugh as "the sexual assault justice" for decades. It would be better for the Court and the country if his nomination were withdrawn.

"But this is what Democrats do!" supporters of Kavanaugh will shout. Maybe. Certainly Feinstein has not done any favors for her credibility by sitting on the accusations for eight weeks. But this is irrelevant. "But they will do this again in the future!" they moan. "It will create a precedent that people accused of sexual assault have to quit!" Again, maybe they will. They certainly should, if the accusations are credible. Who, after the revelations of #MeToo, thinks that applying less scrutiny to accusations of sexual misconduct involving powerful men is a good idea?

If Kavanaugh is a good man who has been wronged here, he should be able to understand that serving on the high court was not some birthright being denied him by Democrats. Even if the most lurid conspiracy theorists among his supporters are correct — i.e., the whole thing is a fabrication and the psychiatrist's notes made 6 years ago have been dug up at random and interpreted ex post facto to refer to a man who just happened to have moved in the same circles at the same time — he is a victim of partisanship and nothing worse. Maybe he and Merrick Garland can start a Simon and Garfunkel cover band. When precedent, procedure, civility, and a basic sense of fair play are abandoned in favor of an all-or-nothing pro-your-own-party realpolitik, things like this are bound to happen. Too bad, so sad.

There is a very straightforward solution to this problem. Trump should retract his nomination of Kavanaugh and replace him with another candidate. Why not the apparent runner-up, Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals? It is difficult to imagine her being implicated in anything like the present scandal. She was in every imaginable sense a better candidate in the first place. I for one do not relish the prospect of the fifth vote to uphold Roe v. Wade being cast by a would-be rapist appointed by our twice-divorced serial philanderer-in-chief. My sense of humor just isn't that bleak.

In a press conference on Tuesday afternoon, the president accused the Democrats of making light of the accusations against Kavanaugh by waiting to bring them to the public's attention until after the scheduled hearings had concluded. "I don't want to play into their hands," Trump said, after expressing sympathy for his nominee. "There shouldn't even be a little doubt."

Given the passage of time and the paucity of concrete evidence, there will always be doubt here — more than a little. The only way to remove it is by appointing someone else.

Editor's note: A previous version of this article misstated the timing of Ford's therapist's notes. It has since been corrected. We regret the error.

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