On Friday, after word surfaced that a letter from an anonymous source alleged that Judge Brett Kavanaugh had sexually assaulted a teenage girl during a drunken episode in high school, I urged an expeditious investigation - with the following caveat: "On a matter as serious as a Supreme Court nomination, one should not allow an accuser to maintain anonymity. It's just not fair, and it's not how our legal system is supposed to function."
Now we know the identity of the accuser, The Washington Post reports:
“Earlier this summer, Christine Blasey Ford wrote a confidential letter to a senior Democratic lawmaker alleging that Supreme Court nominee Brett M. Kavanaugh sexually assaulted her more than three decades ago, when they were high school students in suburban Maryland. Since Wednesday, she has watched as that bare-bones version of her story became public without her name or her consent, drawing a blanket denial from Kavanaugh and roiling a nomination that just days ago seemed all but certain to succeed.”
Certain facts add to her credibility. First, "Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist's notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh's name but say she reported that she was attacked by students 'from an elitist boys' school' who went on to become 'highly respected and high-ranking members of society in Washington.'"
Second, in August she took a polygraph test (not admissible in a legal proceeding, but certainly effective in the court of public opinion) that concluded "Ford was being truthful when she said a statement summarizing her allegations was accurate." Finally, the individual allegedly with Kavanaugh at the time, Mark Judge, who tried to vouch for him has actually undermined his defense. Judge has written about his alcohol problem, The Post reports:
"Judge is a filmmaker and author who has written for the Daily Caller, The Weekly Standard and The Washington Post. He chronicled his recovery from alcoholism in 'Wasted: Tales of a Gen-X Drunk,' which described his own blackout drinking and a culture of partying among students at his high school, renamed in the book 'Loyola Prep.' Kavanaugh is not mentioned in the book, but a passage about partying at the beach one summer makes glancing reference to a 'Bart O'Kavanaugh,' who 'puked in someone's car the other night' and 'passed out on his way back from a party.'"
While Republican senators and the White House can dismiss out of hand decades-old anonymous allegations, they should - and I stress should - not press full steam ahead without investigating the matter now that there are specifics and an accuser.
Let's start with the proposition that if Kavanaugh did what he was accused of and then has lied about it, he cannot be confirmed for the Supreme Court. It is noteworthy he has not denied the allegation under oath. The Senate therefore must bring him back as well as Ford to tell their accounts in public and under oath. If the allegation is true - and at this point, none of us is in a position to assess credibility - he dare not lie under oath, putting at risk his current seat on the bench. (A far more difficult matter presents itself if Kavanaugh issues less than an absolute denial under oath but argues that this episode was decades old and therefore should not be disqualifying. I find it difficult to believe, however, that he'll deviate from his initial, complete denial.)
The nomination fortunately does not hang on whether the White House or the vast majority of Senate Republicans behave responsibly, for surely they will not. Here, the two pro-choice Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, once more are in the driver's seat. If they indicate they will not vote to confirm unless and until the matter is investigated, then the nomination stops in its tracks. Now, it is one thing for a senator to accept the dubious proposition that Kavanaugh won't impair federal protection for women seeking an abortion; it is quite another to refuse to investigate a plausible accusation of sexual assault, no matter how old. It's hard to see how these two moderate Republicans can brush the allegations aside without further inquiry.
To Republicans and the judge himself who may think this is terribly unfair, I have two responses. First, the entire confirmation process has been rushed, incomplete and hampered by the partisan, limited release of relevant documents. Even before we got to this point, the argument for waiting until all documents could be disclosed and reviewed was compelling. Second, it may well be unfair to hear a last-minute allegation, but it would be much more unfair to allow someone who has lied to the American people about an alleged sexual assault to reach the highest court. The analogies to Clarence Thomas' confirmation hearings for the Supreme Court are inapt. While his alleged conduct was far more recent, it involved no physical conduct. Boorishness and sexual harassment can be reprehensible but not illegal; sexual assault is a crime.
As of this writing, it is entirely unclear what path forward the Senate will take. The latest twist in the nomination process, however, likely freezes any Democratic support for Kavanaugh absent a reopening of the hearing. Once more, all eyes turn to Collins, Murkowski and perhaps another brave Republican or two. Will they be dutiful partisans or act like responsible members of an equal branch of government?