Brett Kavanaugh's hasty confirmation is a national embarrassment
If you're looking for a case study in how the Trump Era has tainted just about everything it touches, you could do worse than to look back to the 2018 confirmation of Supreme Court Justice Brett Kavanaugh.
Kavanaugh is back in the news thanks to a new book — excerpted over the weekend in The New York Times — that expands upon and revives allegations of sexual harassment made against him from when he was student at Yale. Let us assume, for the sake of argument, that Kavanaugh is completely innocent of the allegations. Certainly, he maintains his innocence, as do most of his conservative allies.
Even so, it is increasingly clear his confirmation was handled in such hasty, slipshod fashion that the individuals and institutions involved may need years or decades to fully recover their public legitimacy. Indeed, institutions in all three branches of government — executive, legislative, and judicial — have been badly damaged by the Kavanaugh controversy.
Who has suffered the most damage, and why?
The Senate. The upper chamber of the legislative branch bills itself as "the world's greatest deliberative body," but where Republican judges are concerned, the chamber seems to have the need for speed. Just last week, for example, the GOP celebrated that it had confirmed 150 judges to the federal bench in the short time during which President Trump has been in office.
This unwarranted expediency was apparent during the Kavanaugh confirmation, particularly after Christine Blasey Ford's allegations against the nominee became public late in the process. With the 2018 midterm election drawing near, Senate Majority Leader Mitch McConnell (R-Ky.) publicly vowed to "plow right through" the obstacles and obtain Kavanaugh's confirmation to the court.
"In the very near future, Judge Kavanaugh will be on the United States Supreme Court," McConnell vowed in a speech to "values voters."
Ford hadn't even testified before the Senate yet! In other words, McConnell's comments signaled that she wouldn't get a fair hearing. Republicans made up their mind on Kavanaugh even before the evidence was made available.
The FBI. Perhaps the most stunning new revelation about Kavanaugh's confirmation is that the Federal Bureau of Investigation, charged with digging into his background and trying to determine the truth of Ford's allegations, didn't do a complete job.
The New York Times reported Monday that in October, Sen. Chris Coons (D-Del.) sent FBI Director Christopher Wray a letter urging the agency to interview a possible witness to another incident allegedly involving Kavanaugh. The interview apparently never happened.
That is not entirely the agency's fault. When Ford's allegations became public, the agency's background check into Kavanaugh was re-opened — but Senate Republicans limited the new investigation to interviewing just four people, and gave the FBI just a week to complete the task. The list of interviews was later expanded to 10 people; there were reportedly at least 50 people named to the FBI as possible witnesses. Only nine were contacted.
The GOP may be more to blame for the botched investigation than the FBI itself. But it will be more difficult in the future for the FBI to defend its work from charges of political interference by high-ranking officials. The agency's reputation for tough-minded independence has been diminished as a result.
The Supreme Court. As my colleague Damon Linker noted at the time, Ford's accusations against Kavanaugh were nearly impossible to adjudicate fairly. But Kavanaugh offered a snarling, rage-filled defense of himself — quickly immortalized by Matt Damon on Saturday Night Live — that criticized Democrats and prompted many observers to wonder if he had the temperament to serve on the court in fair and unbiased fashion.
"He acted in a manner that might compel a judge to hold a witness in contempt of court," noted Deanna Paul for The Washington Post.
The worst-case scenario is that Kavanaugh is guilty of some or all of the accusations against him, and that nearly a quarter of the justices — including Justice Clarence Thomas — now making critical rulings for the country have been plausibly accused of harassment.
That's bad. But the best-case scenario isn't much better. In that situation, Kavanaugh is innocent of the allegations — but was ill-served by a process that disregarded such critical questions in favor of a speedy confirmation.
The most likely outcome is that, like Thomas, Kavanaugh will sit on the court for a generation or more and that pundits, politicians, and the press will be arguing about his legitimacy for decades. Perhaps that was inevitable once Ford's accusations became public. Unfortunately, we will never know if a slower, more deliberative confirmation process could have produced a better result for all Americans.
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