I’m not crazy about recycling the gist of a recent series of Facebook exchanges here at RealityChek. But the debate over the Brett Kavanaugh Supreme Court nomination has become so heated as well as so important, and most thinking on both sides so sloppy, that it’s worth laying out comprehensively here the absolutely crucial distinctions that both Kavanaugh supporters and opponents generally keep ignoring or confusing.
>The clear trauma and even shame that Christine Blasey Ford felt during and following her alleged encounter with Kavanaugh at that party during their high school years does not necessarily mean that he committed sexual assault (assuming that she has IDd him accurately). Since she was only 15, it’s entirely possible that she experienced this reaction to an advance that, however clumsy and/or drunken, doesn’t qualify as any type of sex crime.
>The failure of Kavanaugh’s alleged actions to rise to the level of criminality does not necessarily mean that Ford was not psychologically and emotionally devastated, and that this reaction did not last for decades – and even continued to this day.
>As stated in my first Kavanaugh post, Ford’s apparent failure to report the incident to anyone, including the authorities, until 2012 (to a therapist) does not necessarily mean either that nothing like the incident ever happened and that she’s fabricating a story. Sex crimes and – by extension – perceived sex crimes are among the most under-reported of criminal offenses, precisely because of considerations like the above feelings of shock, shame, and humiliation victims so often experience, and their understandable reluctance to keep these wounds open, or to reopen them. Nor should we forget the still all-too-common tendency to blame the victim.
>Even if one of Ford’s motivations, or her main motivation, is to stop Kavanaugh, such partisanship does not necessarily mean that the incident she describes, or something like it, didn’t happen.
>Similarly, Democrats’ clear determination to use Ford’s charges as late-emerging weapons in a campaign to defeat the Kavanaugh nomination that long predates the allegations does not necessarily mean that the incident, or something like it, didn’t happen.
>The same goes for the claims that Democrats have ignored or downplayed similar sexual assault or abuse allegations against figures like former President Bill Clinton or U.S. Congressman and Democratic National Committee Deputy Chair Keith Ellison, who is currently running for Minnesota Attorney General.
>Claims that Kavanaugh has led an exemplary adult life, and even that he was an exemplary teenager, don’t necessarily mean that he didn’t commit the acts claimed by Ford, or something like them.
>Claims that such abusive behavior was commonplace among Kavanaugh’s peers, as made by many graduates of the private girls’ school Ford attended, along with many other colleagues and friends, do not necessarily mean that Kavanaugh himself committed any such actions either on that evening or at any time.
>Claims that Republicans’ opposition to a lengthy investigation of the alleged incident, along with Kavanaugh’s failure to call for one, do not necessarily mean that the former fear that Kavanaugh is guilty, or that he himself knows he is guilty. Both his supporter and the nominee can legitimately wonder how Kavanaugh’s innocence could be proved conclusively to Democrats and other died-in-the-wool Kavanaugh opponents, no matter how long such a probe lasted.
>The lifetime nature of a Supreme Court appointment does not necessarily mean that the current (political, not legal) process of confirmation should deny Kavanaugh some significant presumption of innocence (if not the “beyond a reasonable doubt” standard typically used in criminal trials).
As for me, I’m still undecided on whether Kavanaugh committed the acts alleged, and still deeply skeptical that a lengthy inquiry will shed any meaningful light on the question. That’s why I still believe that the only fair and legitimate way to decide his fate is via politics – with a vote on his nomination by the elected politicians Constitutionally authorized to make such decisions, and who know that, before too long, they may well be held accountable at the ballot box.
The only valid reason I can come up with to block a Senate vote indefinitely would entail a charge that Kavanaugh lied to the Senate Judiciary Committee on other matters during his confirmation hearings. But it’s surely revealing that none of his die-hard Senate opponents has yet brought a formal accusation along these lines.
Interestingly, my brother yesterday advanced an intriguing alternative political path out of the Kavanaugh conundrum: Postpone the vote until after the midterms, on the assumption that the outcome will represent a referendum on the nomination. In other words, if the Republicans retain control of the Senate, the public will have in effect endorsed Kavanaugh (and ensured his accession to the Supreme Court), and if Democrats take over the upper chamber, the public will have acted to ensure Kavanaugh’s defeat.
I’m agnostic on this matter, too, since in both scenarios, the public’s votes for the Senate will surely be influenced by many issues other than the Kavanaugh nomination. In other words, there’s no perfect or perhaps even good way out of the Kavanaugh predicament. And even if there were, everyone should continue feeling free to weigh in. But it would sure help if the thinking surrounding the controversy becomes a lot clearer than what the nation has been reading and hearing so far.