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Hypocrisy in Kavanaugh case enough to set off alarms in DC

Hypocrisy in Kavanaugh case enough to set off alarms in DC
© Greg Nash

Washington is bracing for a showdown over the confirmation of Judge Brett Kavanaugh for the U.S. Supreme Court, following the belated disclosure of a letter alleging an attempted rape when he was a high school student.  Republicans are crying “smear,” while Democrats are crying “coverup.” Neither side is particularly convincing in their outrage, given their positions on earlier scandals. The challenge is to address the serious issues raised by the allegation through the screen of feigned mutual outrage. That leaves only one real option: public hearings.

Dr. Christine Blasey Ford came forward as Kavanaugh’s accuser. She alleges that he attacked her when they were teenagers (he was 17, she was 15) in high school. Ford alleges that Kavanaugh was drunk at a small party in Maryland and forced her into a bedroom. She says he tried to tear off her clothes while holding his hand over her mouth; she further alleges that Kavanaugh’s friend, Mark Judge, witnessed the act, which stopped only when Judge jumped on the two of them. Both Kavanaugh and Judge vehemently deny the allegation.

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What Ford describes is an attempted rape, which should be a serious matter for investigation regardless of when it occurred. Ford has offered little corroboration beyond her discussion of the incident in 2012 during marriage counseling (an account recorded by the therapist without reference to Kavanaugh by name). She has taken a polygraph, which her lawyer claims showed she spoke truthfully about the account.  

While financial scandals have plagued past Court nominees from the earliest days of the Republic, this is the first time that a nominee has been accused of attempted rape. Clarence Thomas was accused of sexual misconduct but not actual sexual assault; ultimately, that matter was left unresolved by the differing accounts, and Thomas was confirmed by a 52-48 vote.

Before any hearing, of course, more political posturing and prevarication must occur. It is a good thing there is not a Doppler radar for hypocrisy, or Washington would be in the midst of a mandatory evacuation.  

The Democrats

During the years of Clinton scandals, many of these same Democratic members and commentators refused to accept the accounts of multiple women who came forward to allege sexual assault and rape by then-President Bill ClintonWilliam (Bill) Jefferson ClintonConservatives bankrolled and dominated Kavanaugh confirmation media campaign Sen. Walter Huddleston was a reminder that immigration used to be a bipartisan issue No, civility isn't optional MORE. All of the members insisting this week that we must believe women such as Ford refused to believe women like Paula Jones, Juanita Broaddrick and others. Democratic members in the House and Senate virtually unanimously opposed both the impeachment and removal of Clinton. They remained silent as the White House and Hillary ClintonHillary Diane Rodham ClintonO'Rourke's rise raises hopes for Texas Dems down ballot Gabbard considering 2020 run: report Claiming 'spousal privilege' to stonewall Congress MORE attacked these women as “bimbos” and losers. Democratic members in both houses ultimately insisted that lying under oath and in public about an affair with a White House intern was a personal, not an impeachable, matter. Even after the Clinton administration, these same people flocked to join Bill Clinton at public events.

Democrats also have not explained the timeline of this controversy. Sen. Dianne FeinsteinDianne Emiel FeinsteinDurbin to Trump: ‘We’re the mob? Give me a break’ Sen. Walter Huddleston was a reminder that immigration used to be a bipartisan issue GOP plays hardball in race to confirm Trump's court picks MORE (D-Calif.) insists she did not release the letter after receiving it in July because Ford stated categorically that, according to Feinstein, “she did not want this information to be public.” However, Democrats proceeded to do precisely the opposite of what the alleged victim requested: They leaked the letter and forced her into a public scandal. The timing proved fortuitous. By waiting until just before the vote, Democrats likely could force a new set of hearings and, if Kavanaugh is defeated or withdraws, would make it unlikely that a new nominee could be confirmed before the midterm elections – precisely what Democrats have been striving to achieve.

The Republicans

With Dr. Ford, Republicans now question why a matter of alleged sexual assault from years earlier should be considered. These are the same members who demanded accountability for Clinton and, later, Sen. Al FrankenAlan (Al) Stuart FrankenGOP lawmaker once belittled sexual harassment: 'How traumatizing was it?' Meet the man poised to battle Dems from the White House Minnesota GOP Senate candidate compared Michelle Obama to a chimp in Facebook post MORE (D-Minn.). Indeed, Kavanaugh himself was previously adamant that such allegations should be addressed publicly and vividly.

When he worked for independent counsel Ken Starr, Kavanaugh wrote a memo entitled “Slack for the President?” The answer was decidedly no, according to Kavanaugh, who wanted Clinton questioned about specific graphic acts that he committed during his affair with Monica Lewinsky. He insisted “our job” is not “to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece.” He insisted: “The idea of going easy on him at the questioning is thus abhorrent to me.”

Kavanaugh now faces calls for public hearings to go into precisely this type of detail. While Republicans may try to force closed hearings for both Ford and Kavanaugh, it would run against the precedent set in the Clarence Thomas hearings, where both parties testified publicly before the Senate committee.  

Kavanaugh’s high school friend, Judge, also is likely to face tough questioning, if he is called. He wrote a 2005 book, "God and Man at Georgetown Prep," that describes a reckless, booze-soaked environment at the prestigious prep school. In his 1997 addiction memoir, "Wasted: Tales of a Gen X Drunk," Judge paints a less-than-flattering portrait of his struggle with alcohol. In these accounts, Judge describes being “completely annihilated” after parties and even waking up with no memory after blacking out. That does not make for a particularly compelling fact witness, and his personal account mirrors the conduct described by Ford.

So where does this leave us? With a tough decision that will come down to a judgment of character.

Both Ford and Kavanaugh should be closely questioned on their accounts and any conflicts that arise in that testimony. No one has a “right” to be believed. They have a right to be heard and fairly considered. Both of them.

So here is an idea: Let’s stop the manipulation and hold a public (rather than a closed) hearing; closed hearings allow testimony to be filtered through these same conflicted politicians. Ford and Kavanaugh have the right to respond to public attacks with public testimony. Otherwise, both will be savaged by leaks and spins in biased third-hand accounts. Given the absence of witnesses, it is unlikely that either account will be proven or disproven. That leaves this as a matter of credibility, a judgment that can only be made by the public if they see the actual testimony of these two individuals.

In the end, 11 Democrats felt that the allegations against Thomas were not sufficiently corroborated to justify a denial by the Senate. It took courage for those Democrats to take that stand. The same may be true with Kavanaugh – or it may not. The only thing that is clear is that we are unlikely to reach any clarity or consensus without a full public hearing.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.