Brett Kavanaugh Should Call for a Public Investigation of the Sexual Misconduct Allegations Against Him

Without a full probe, Kavanaugh could, like Justice Thomas, ascend to the Court with a permanent cloud over him

September 17, 2018

He’s not a potted plant. If Supreme Court nominee Brett Kavanaugh doesn't himself call for a halt to his Senate confirmation to get to the bottom of the bombshell sexual assault allegation against him he will be telling us more about what kind of justice he will be than any opinion he ever has written or any dubious answer he has ever given while under oath before the Judiciary Committee. This is his moment. After decades of striving and conniving to get on the Court, he can show in actual deeds what he keeps saying in words: that the integrity of the judiciary matters, if not to politicians then to judges themselves.

For his own sake, if not for ours, President Trump’s nominee should say, today, that he wants a full and complete vetting of the claims against him by Christine Ford, the California professor who identified herself on Sunday as the woman Kavanaugh allegedly sexually assaulted when they both were high school students decades ago. In a statement Monday morning, Kavanaugh said he was willing to appear before the Senate Judiciary Committee but did not call for a full investigation. “I am willing to talk to the Senate Judiciary Committee in any way the Committee deems appropriate to refute this false allegation, from 36 years ago, and defend my integrity,” the statement read.

Ford’s vivid story -- that a besotted Kavanaugh pinned her to a bed, groped her, tried to take off her clothes, and put a hand over her mouth when she tried to scream -- is too detailed to shrug off, as Kavanaugh and his supporters have previously done. It must be fully and publicly heard and evaluated and Kavanaugh should be the one to demand that it be so.

We cannot now evaluate the reliability of Ford’s claim or Kavanaugh’s denial. We could not sit as jurors today based on what is publicly known and decide with any reasonable accuracy what happened that night, if anything, and what it means. Kavanaugh’s most zealous backers, the same ones who support the accused sexual predator in the White House, immediately and predictably turned their scorn on Ford, but that says more about them than it does about her. 

Nor should Ford’s credibility be attacked for only coming forward now. If not now, when? Was she supposed to remain silent forever more, and see the man she believes attacked her sit for the rest of his life in pious judgment on the rest of us? And her motive? Who among us would invite on our family or friends the vitriol she now faces?

We cannot yet render a judgment. But it is not too early to recognize that Ford has established what the law might consider a prima facie case of sexual assault. Her story, as we know it today, has several indicia that police and prosecutors, judges and jurors, look for in assessing the credibility of a witness. She told her husband long ago about what she says happened. She told her therapist, who took contemporaneous notes. She passed a polygraph test. Ask any credible defense attorney and she’ll tell you: The nation’s prisons are filled with sexual assault defendants who have been convicted and sentenced to hard time on evidence flimsier than Ford’s. Even ones who commit their crimes at age 17. Even ones who categorically deny any wrongdoing, like Kavanaugh.

Based on the detail in the allegations, Kavanaugh should be screaming the loudest among GOP operatives for a public vetting of Ford’s claims. That's what an honorable nominee would do in these circumstances. He would say to the world that he doesn't want to join the Supreme Court under this cloud. That he doesn't want to forever be known, as Clarence Thomas is in many circles, as an illegitimate justice who took the coward's way out when confronted during his nomination process by credible allegations. At least Thomas was forced, in a sense, to confront his accuser, Anita Hill, and to have their versions of events evaluated by contemporary political standards. 

Hill, by the way, reminded us Sunday that 27 years after her ordeal the Judiciary Committee has yet to establish “a fair and neutral way for [sexual misconduct] claims to be investigated.” That is inexcusable. So was the reaction of some members of the Senate Judiciary Committee, who reacted to the news Sunday afternoon as though the real scandal here was the timing of Ford’s allegation and not the substance of it. Good for Judiciary Committee member GOP Sen. Jeff Flake, the Hamlet of Arizona who is not running for reelection, for saying he is “not comfortable voting yes” on Kavanaugh until he learns more about Ford’s allegations. And good for Tennessee Republican Sen. Bob Corker, who does not sit on Judiciary, for also pressing for a delay.

To do otherwise, to rush to a Thursday committee vote, to hide behind the institutional defenses and personal attacks on Ford now coming from other Republicans, undermines everything Kavanaugh has said so far about his judicial temperament and the role judges ought to play as neutral arbiters of fact. No trial judge, if faced with such a revelation on the eve of trial, or on the eve of jury deliberations, would ignore this evidence or block its impact on the case. Please don't tell me that Senate Democrats now are precluded from making this argument because they waited so long to bring this up. The FBI has known about this since July, which means the Republicans have known about this since July.  

Kavanaugh shouldn’t wait for Senate Republicans to attempt to paper over this problem in the next few days. He shouldn’t defer to the politicians. The answer manifestly is not, as Judiciary Committee Chair Sen. Charles Grassley (R-Iowa) and ranking minority member Sen. Dianne Feinstein seem to be pitching, a series of private conversations between them and Ford, and then them and Kavanaugh. This cannot be a secret trial of Ford’s credibility or Kavanaugh’s character. It must be public for Kavanaugh to have any legitimacy should he make it onto the Court. If he’s got the mettle a Supreme Court justice ought to have, Kavanaugh should be the first person to recognize this. He should say, simply, that there ought to be no rush to judgment and no rush to a vote.

What a story this now has become. It began with an illegitimate president picking an Establishment choice to further cement the Court's rightward tack. Then it devolved into an abdication of the Senate's role in competently vetting Supreme Court nominees after Grassley blew off the timetable proposed by the nonpartisan National Archives. Next it was the farce that was Kavanaugh's confirmation hearing, where an over-confident and under-prepared nominee offered one feckless answer after another to even the most basic questions, never mind the tough ones about abortion rights.

Now we have a full-blown Greek tragedy. It is no secret that Brett Kavanaugh has groomed himself for years, for decades, for a Supreme Court slot. Year after year he paid his Republican dues, first as a fellow traveler with Kenneth Starr in the fight against President Bill Clinton, then as a true believer in the early days of the Bush administration, and most recently as a dutiful conservative ideologue on the D.C. Circuit Court of Appeals. And now, just when all this groveling is about to pay off, comes this potentially disqualifying turn. A #MeToo moment from a #MeToo nominee at the heart of a national debate over women’s rights. 

If Kavanaugh truly is innocent, he should demand a full and fair hearing to demonstrate so, even if that means his confirmation vote is delayed for weeks or a month or more. As a man now credibly accused of misconduct he should display the same confidence in due process that he has promised to give to other men and women accused of misconduct. That's what a judge who believes in facts and law would do. That's what a nominee truly worthy of the Supreme Court would do. Some nominees get to the Supreme Court before we get to see their judicial character. Kavanaugh’s test is here. And now. 

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

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