Accusation against Kavanaugh calls for full investigation

Accusation against Kavanaugh calls for full investigation
© Greg Nash

If a Supreme Court Justice, laboring under allegations of sexually assaulting a high school girl while also in high school provided the tie-breaking vote to overrule Roe v. Wade and other key precedents that define modern constitutional doctrine, the result would be a nationwide convulsion from which the high court might never recover. That calamity could forever weaken the Supreme Court as  a respected arbiter of divisive disputes and a source of national unity.

On Sunday, Dr. Christine Blasey Ford, who accused Judge Brett Kavanaugh of sexual assault that she alleges occurred in the 1980s, made her identity public. For anyone devoted to the rule of law in America, the question is not only whether to believe that the allegations made by Dr. Ford are true. The question is whether the allegations come with enough indicators of credibility that a substantial portion of the nation will believe them.

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If the allegations are credible enough to be believed, then the consequence of confirming Kavanaugh without a definitive investigation of the charges is that a Supreme Court justice widely believed to have committed sexual assault will be casting votes regarding the right to terminate a pregnancy, equality in the workplace, criminal charges of rape, and sex offender registries.

A court working under such a cloud would face a massive crisis of legitimacy. The institution would be forever weakened.

Anonymous charges may well be true standing alone because survivors of sexual abuse fear coming forward by name. That said, the details that emerged Sunday as Dr. Ford revealed her identity provide additional reasons to take her allegations seriously.

As an academic whose work focuses on statistics, she is trained in a discipline that cares about evidence and truth. She has a lot to lose by coming forward. It would be devastating if she were exposed as dishonest.

Dr. Ford told her counselor about the alleged assault years ago, and his notes reflect the discussion, with differences in one detail — the number of boys at the party versus the number involved in the alleged assault — that could be explained by an error in note taking. Her husband, who was present during the counseling session, confirms that Dr. Ford recounted the events.

Given the trauma and emotional repression so often associated with being assaulted, it seems logical and natural for a victim to first open up about the experience in a counseling session.

Moreover, it’s difficult to imagine a scenario in which the notes were manufactured. Did Dr. Ford, her husband, and her counselor all conspire to make up and memorialize an old conversation after Judge Kavanaugh was nominated to the Supreme Court?

Did Dr. Ford, envisioning that Judge Kavanaugh might one day be picked for the high court, fabricate the alleged assault in the counseling session so that the counselor would make notes to back it up?

These scenarios seem far-fetched and are difficult to accept without a complete investigation into what happened.

On top of this, Dr. Ford’s attorney arranged a polygraph test regarding her account by a former FBI agent. She passed.

To be sure, there are two sides of the story. Judge Kavanaugh vehemently denies the allegations, as does his classmate, whom Dr. Ford says was also involved in the alleged sexual assault. Judge Kavanaugh has passed any number of vettings and background checks over the course of his career in government and the judiciary.

Dr. Ford did not come forward until Judge Kavanaugh’s confirmation appeared imminent, although that could be explained by the desire to keep a painful trauma out of the public glare.

All of this is why a thorough investigation is so critical. True or not, the allegations at minimum come with enough indicators of credibility that they cannot be dismissed without a complete examination. If Dr. Ford’s claims are simply brushed aside, they will linger over Kavanaugh—and, more importantly, over the Supreme Court as an institution.

If Justice Anthony Kennedy is succeeded by someone more conservative than him, a large portion of the country will be outraged by decisions the court will likely hand down in areas including abortion, voting rights, affirmative action, and racial discrimination. But if that shift is to occur, it must occur with the court’s legitimacy intact to the fullest extent possible. The rule of law depends on it.

Without legitimacy, the judiciary has no real power. Unlike the other branches of government, the federal courts’ authority is grounded neither in a popular mandate nor in control of agencies and armies. Their power in our constitutional structure depends on the view that they are legitimate and that their mandates must be followed.

When the Supreme Court decided Bush v. Gore, which ensured a Republican presidency, many people did not like the decision, but no one seriously questioned that it had to be followed.

A string of divisive decisions could weaken the judicial authority on which our democracy depends. A string of such decisions made by a justice under the cloud of an alleged sexual assault — one appointed by a President under the same cloud — could destroy that authority forever.

David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, and a clinical associate professor of law at Northwestern Pritzker School of Law.