Politics

Why the GOP Is Better Off Pulling Kavanaugh’s Nomination

Having Kavanaugh go down is probably the Republican Party’s best hope for actually getting a seated Supreme Court justice.

Brett Kavanaugh.
Brett Kavanaugh. Photo illustration by Slate. Photo by Drew Angerer/Getty Images.

The nomination of Brett Kavanaugh, President Donald Trump’s pick to replace Justice Anthony Kennedy on the Supreme Court, faces uncertainty this week after more details were revealed about accusations of attempted rape that were made by a former high school acquaintance, Christine Blasey Ford.

Ford is a California-based professor. She says that as a high school student in the suburbs of Washington in the early 1980s, she was forcibly restrained by Kavanaugh and a friend of his, Mark Judge, who is now a conservative writer. Ford claims they held her down, turned up music so that other people would not hear her resistance, and attempted to remove her clothes and assault her, although they did not succeed.

In a special bonus episode of Slate’s Political Gabfest recorded on Monday, before it was announced Kavanaugh and Ford would be testifying next week, Emily Bazelon and David Plotz discuss the allegations facing Kavanaugh, what it might mean for the November midterm elections, and the future of the Supreme Court. Below you’ll find a transcript of their conversation, which has been edited and condensed for clarity. You can find Slate’s Political Gabfest via Apple Podcasts, Spotify, Google Play, Stitcher, or wherever you listen.

Emily Bazelon: The big thing that changed between last week and Sunday was that Ford came forward. Previously, the accusation had been anonymous. And when it was anonymous, it seemed impossible for the Judiciary Committee to act on it. I would agree that we can’t live in a world in which anonymous, unverified accusations derail anyone from anything. But now we know who this person is, we have the details she’s alleging, and the question is: What happens next? Do the Republicans ram through this confirmation vote this week, or do they try to get to the bottom of this accusation and find out how credible it is?

David Plotz: Before we get into the fight that I expect you and I are about to have, let’s talk about what needs to happen. As currently constituted, the Judiciary Committee has more or less finished its hearing. They finished the hearings and scheduled a vote for Thursday, which would then advance Kavanaugh to the full Senate for confirmation, presuming he gets through the Judiciary Committee, which has an 11-to-10 Republican advantage. If one Republican senator decided not to go ahead with this vote or vote against it, or say we don’t want this vote yet, the committee might not be able to have its vote yet.

And of course, there’s only a two senator advantage for the GOP in the full Senate, so if two senators decided they wouldn’t vote for Kavanaugh, that would imperil his nomination, assuming all Democrats went along with it. As we stand, Emily, it seems like a couple of Republican senators have expressed the desire to have hearings—that the vote should be delayed until we hear more from Ford and Kavanaugh. Is that right?

Bazelon: I think so. I could be a little behind, but my sense was that Jeff Flake from Arizona, who is retiring, was the first person to come forward with a pretty strong statement about delaying the vote. Bob Corker, a little less strong, but said, Yeah, we should look into this. And then Lisa Murkowski from Alaska was the third person, with a much more equivocal statement by Lindsey Graham of South Carolina saying, If she wants to speak to us, I’ll listen to what she has to say. But by the way, here is the Republican official response about how suspicious the timing of her coming forward is.

Plotz: And I think [Susan] Collins may have also expressed, in principle, a desire to hear more from her, as well as three of the Democrats who are most likely to vote for Kavanaugh—they have all said that they should hear from her. And even Kellyanne Conway at the White House has said she should be taken seriously and heard from, although what that actually means in practical terms, I don’t know.

We could have a situation where she comes forth and testifies, and Kavanaugh and perhaps [the other man Ford other accused Mark] Judge come forth and testify about this, which would be a remarkable and unprecedented spectacle, and probably would have one person asserting one version of events and two people denying it, or asserting that they don’t remember it, or that she’s telling a falsehood.

Bazelon: Right. And from the perspective of procedural fairness and truth seeking, isn’t that kind of testimony what we should hope would happen? I’m really not sure it’s going to happen, and I am worried about the spectacle of the Clarence Thomas hearings and the treatment of Anita Hill by the Senate Judiciary Committee at the time. That’s the cloud hanging over this whole prospect. But just in terms of whether it’s fair to Kavanaugh to get to the bottom of these allegations, what do you think about the idea of Ford and Kavanaugh and Judge publicly testifying?

Plotz: I am absolutely confused and muddled about this, Emily. I am really confused. Do you think that on its face, if this is true, that Kavanaugh is disqualified from being a Justice of the Supreme Court?

Bazelon: If this is true—let’s be in the “if this is true universe.” If this is true, I don’t think that this allegation against him when he was 17 on its own is disqualifying. And the reason I say that is not to condone the behavior. If it’s true, it’s awful. But he was 17, and that means he was not legally an adult. Now, there are lots of states who, for the purposes of an attempted rape charge, would treat a 17-year-old as an adult. And [there’s] lots of irony, I guess, or hypocrisy about the notion of conservatives defending Kavanaugh, saying there’s no need to look into any of this, while very happily going along with sentencing lots of poor people, especially people of color, to prison on similar charges. So let’s just establish that that is problematic.

But 17-year-olds, their brains are still developing. They’re, on average, not great at impulse control, and there are reasons to be concerned about holding people accountable forever for transgressions when they were teenagers. That said, I don’t think that’s why Kavanaugh’s nomination would go down. It would go down because if this is true, then he is lying or denying it, and not taking any sort of responsibility or having any recognition of the immorality and the wrong he did to someone here. And that seems to me the act of a 53-year-old, which we very much can hold him responsible for.

Plotz: Right. I think I agree with everything you just said, unfortunately. It is certainly the case that a 17-year-old who acts in this way—it’s a disgusting way, it is deplorable, it is criminal. It’s a criminal act as described if he did this.

Bazelon: Right. And if our sons did this, we would be really horrified. We don’t mean to condone this at all.

Plotz: And also, I think your point that this is a kind of thing which, if you’re a poor black kid who gets caught doing something like this—especially to a white, teenage girl—you’re undoubtedly facing criminal charges, and they’re going to charge you as an adult, and everyone’s going to make a big deal about how you were 17, you ought to know better, you’re an adult. And the fact that Kavanaugh was rich, white, privileged undoubtedly means that he would have been treated more leniently had this been brought up at the time.

Mark Judge has written about how much partying [he did], and how drunk he was, and his own drinking, so we should expect that he was a riotous teenager. It seems to me entirely possible that the events as described took place, and that they were part of a kind of a culture of drunkenness and fratty, dumb, boy school bad behavior.

Bazelon: And does that make them better or worse?

Plotz: No, of course it doesn’t make it—

Bazelon: Or is it just irrelevant? The fact that he was underage is mitigating, right? He’s still culpable, but it makes him less culpable.

Plotz: If there’s no pattern of him as an adult behaving this way, if he has been above-board and behaved honorably in all of his interactions with women, sexually and otherwise, since then, then we should count that very heavily in his favor, that it didn’t precede a lifetime of being a sexual assaulter and harasser and would-be rapist. But your point that if he doesn’t own up to it, if he doesn’t make any admission about it, it does suggest that he’s willing to lie and not bear more responsibility for his actions if this is true.

Bazelon: And there’s a lot of victim-trashing that is going to be unleashed by that because his defenders have every incentive to go after this woman and call her a liar. It’s already starting. And so if this is true, he is responsible for all of that, and that’s disqualifying.

Plotz: But this is not the same as what Clarence Thomas did. Clarence Thomas was an adult with a pattern of sexually harassing behavior towards women who worked for him as a man in his 40s, and I don’t think these are the same cases at all. It’s very clear to me that Thomas, under today’s circumstances, would not get confirmed, did not deserve to be confirmed, and should not be on the court for the reasons that we know now about, and we knew about then.

Bazelon: Well, I’m not sure. It’s hard to redo the Thomas hearings because he denied it all. We have to say that. He said this was a “high-tech lynching.” He absolutely said Anita Hill was lying. And if the Republican senators voting on his nomination believed him, then he would have been confirmed. I think when we look back at the Thomas hearings—all the composition of the Senate Judiciary Committee is really different. There would not be this row of white men sitting in judgment of Anita Hill. There are four strong Democratic women on that committee. There are men who are feminists on that committee.

Plotz:  Aren’t the Republicans basically just white guys? I’m not sure. There’s probably a woman among them.

Bazelon: No, all the women are Democrats. I think this testimony of Ford’s, if it happens, is going to have some really ugly parts to it, but she would also have her defenders in the room, which Anita Hill didn’t have, [or not any defender] with a microphone in front of them.

The other thing about Anita Hill, which has to be said, is there was another woman who had come forward with similar harassment allegations against Thomas who was never called as a witness. And there were also a couple of people who were what we call “contemporaneous witnesses”—people Hill had told about the harassment at the time. They were never called to back her up. And so Anita Hill stood there alone at a moment when actually there were other women who should have been called to stand in solidarity with her.

We have no idea if there is anyone else out there who’s going to show up to back up Christine Ford, and obviously if he or she did, that would change the conversation. But you don’t have to have multiple accounts of assault to hold someone responsible, especially in a situation like this where, in our hypothetical universe where we think Kavanaugh did indeed do this, then he’s lying and he’s unleashed the powerful forces defending him against this victim.

Plotz: I just want to point out that you and I have both staked a position, which is this is not disqualifying for Kavanaugh if he concedes it. But that’s slightly ridiculous for us to say that because if he concedes it, then he won’t be confirmed. Then people will say he’s a would-be rapist, and therefore, he can’t be confirmed. Can you imagine him admitting any of it, and then for Senate Republicans to come out and say we’re voting for him? They can’t. He has to deny it all, so we’ve set up an impossible situation where there’s nothing that he could do that could satisfy.

Bazelon: Too bad. We should also say that it is different to get to ascend to the Supreme Court than it is to go to jail. We’re talking about an enormous honorific with a great deal of power versus criminal punishment. Too bad if he’s in a predicament. And I also think that the door is closed now because his denials have been so vehement and he’s clearly not going to back down, but there was a way forward and it had to do with Mark Judge’s account of high school, which was full of blackout episodes of being drunk. And so there was a world in which Kavanaugh, knowing in his heart that this happened or something like this happened, or very plausibly could have happened, could have said, “Look, I did stuff in high school I don’t remember, and I really hope I didn’t do this. But it’s possible.” That door closed sometime over the weekend. It’s not coming back.

Plotz: Do you think we’re now going to have testimony where he’s going to have to talk about his high school drinking habits?

Bazelon: Why shouldn’t he?

Plotz: Is it going to get at that level?

Bazelon: Look, either this testimony happens and there’s a full questioning, because the Democrats on the committee are going to ask questions of him and Judge to try to assess whether they’re telling the truth in the same way that people assess whether Ford is telling the truth. That happens and everybody testifies—that’s Door 1. Door 2 is President Trump withdraws his nomination because it’s hard to imagine those hearings playing out in a way that’s more favorable to Kavanaugh, and they just cut their losses and move on to the next nominee. Door 3 is that the Republicans just ram this vote through, but it does seem like there are enough senators who hold the key votes.

Plotz: That sounds like you think there’s a reasonable possibility they pull the nomination?

Bazelon: I do. Because when you start imagining this testimony and this hearing in this moment, it’s going to be a mess. It could be a mess for Kavanaugh, it could be a mess for Ford. Although to me she’s looking credible. And it could be a real mess for the Republican Party in November. Right? The political ramifications of going after this woman with—let’s imagine a moment in which she testifies, and she comes across as credible and sympathetic. What more do the women of America [need] to vote against Republicans in Congress than seeing that person raked over the coals for the sake of this nominee? They can find someone else to fill these shoes.

Plotz: The politics of it is, for Republicans thinking about the midterms, it’s much better for them if Kavanaugh goes down than if he’s approved. If he’s approved, especially after allegations like this, Democrats will be absolutely exorcized. Any Democrat who had any ambiguity, especially any woman [who] was thinking of voting for Democrats, will have yet another reason, and Republicans won’t have that same reason to get out and vote for the court.

If this nomination goes down and we’re in November without a full complement on the court, then I think there will be a lot of animated Republican voters who will come out and say, You know, I’ve got to get out and vote because even [though I’m] holding my nose around Trump, even holding my nose for the stupidity that this Republican Congress, it’s very important that we get the Supreme Court justice approved. And that’s going to be great news for Republican turnout, I would think. Having the nomination go down is probably their best hope.

Bazelon: Fast, too. If you’re Mitch McConnell and you’re ruthless about this, politically speaking, you pull Kavanaugh right away, you pick someone else who hopefully has no skeleton in his or her closet, and then you get that nomination moving, but not all the way through by Nov. 4. And so if you absolutely need to confirm that person in a lame-duck session if Republicans lose control of the Senate, you could still do that, but you have it dangling out there for your voters.

By the way, I do not think that Amy Coney Barrett, who is a lot of conservative Christians’ favorite choice, is easily confirmable. Someone in the Federalist Society told me this week that the second choice, the runner-up back when they chose Kavanaugh was Thomas Hardiman, who’s a judge on the 3rd Circuit Court of Appeals.

Plotz: Before we leave, let’s talk about the credibility of Ford. She did not come forward with this allegation at the time it happened. She didn’t bring charges against Kavanaugh. She made no accusation against him. It first seems to have appeared in her life, or she seems to have been talking about it, in 2012. And she appears to have talked about it to a therapist.

Bazelon: Yeah, and I think her husband was there because it was couples therapy.

Plotz: [Her statements then] didn’t seem to have come with Kavanaugh’s name. But she has passed a lie detector test for what that’s worth, which I would say zero. And she has made what is clearly a very conscious decision to upend her life and expose herself to a significant amount of humiliation and attack. I think that actually weighs in her favor, the fact that she would be willing to expose herself after not being willing to. She said I’ll do this anonymously and then realized, You know what, I have a responsibility to be public about it because otherwise it won’t get a fair hearing. I think the fact that she, knowing what happened to Anita Hill, the fact that she was willing to be public about it is an enormous checkmark in her favor.

Bazelon: I will just say it straight up. I had a lot of reasons to wonder about Kavanaugh’s nomination before this happened, and also reasons to err on the side of believing people who come forward in situations like this, so you can take everything that follows with that grain of salt.

That said, to me there are some real reasons to think that this is a credible accusation, or reasons to discount the things that might push in the other direction. To me, it’s totally believable that a high school girl in the 1980s would not have talked to anyone or made an accusation like this about what had happened because of the shame and the fear that she would have felt. I’ve felt that from my own personal experience. I know that there are lots of women who went to high school in the 1980s and after who had bad things happen to them with boys, drunk boys, asshole boys, and didn’t tell anyone, and certainly didn’t think of this as something that you could go to the police about. So I feel supersympathetic to her about that.

I also feel really sympathetic about why it took her a long time to decide that she could really come forward, because of the price that Anita Hill paid and that other women pay. Even in this moment of #MeToo when some men are toppling, it is a risky, risky thing to do. I’m sure Christine Blasey Ford has lots of other things that she’s done that she would like to be remembered for, and now her moment on the public stage is this one, and that is tough. That is a tough thing to decide to do.

There are all kinds of disincentives for coming forward, so add that to her credibility. If other people come forward and there is proof that this didn’t happen, I’m open to that. I don’t think the case is closed, but I think it’s really important to think about the reasons why she didn’t tell anyone at the time, and the reasons why she hasn’t come forward until now.

Plotz: Knowing the behavior that young men at private schools around Washington indulged in at that time, and knowing the culture of the time, I think it’s very credible. It sounds a lot like things that I saw or heard about happening among people I knew. And the idea that she wouldn’t mention it seems 100 percent congruent with what I would expect from a girl at that time. The culture was not welcoming to it. She wouldn’t have been taken too seriously, and it would have been dismissed as just “boys being boys,” and it would have been a “he said–she said” at best. There’s no reason to think she would have been able to come forward successfully and gotten anywhere, especially given that there was no—as she describes it, it wasn’t a rape. It was an attempted rape.

Bazelon: Right, which meant that she didn’t have any physical evidence. As soon as it was over, she wouldn’t have had that.

Plotz: It’s certainly the case if there’s some other story about some gross misbehavior relating to women that comes out about him, especially one where he’s an adult, I think that is unsurvivable. That is a problem.

Bazelon: Yeah, but let’s not decide that we need a second accuser. Let’s not step that far.