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Don’t Let The Kavanaugh Confirmation Turn Into A Title IX Kangaroo Court


“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” So begins Franz Kafka’s “The Trial,” a story about a man caught up in an inscrutable bureaucratic nightmare, prosecuted and ultimately executed by an unknown authority for an unknown crime.

Senate Democrats and Christine Blasey Ford, have tried—and so far failed—to turn Brett Kavanaugh’s Supreme Court confirmation into a Kafkaesque version of a Title IX tribunal, in which the accused is presumed guilty, may not know the identity of the accuser, and is not permitted to mount a defense.

“The Trial” is a dark satire of modern bureaucracy, but a century later it bears a striking resemblance to the kangaroo courts on college campuses that can ruin the lives male students accused of sexual misconduct.

But the Senate Judiciary Committee isn’t a campus tribunal, and Senate Republicans, to their credit, have thus far refused to turn the confirmation process into one. By setting a public hearing for Monday, and inviting both Ford and Kavanaugh to speak to the accusations, Senate Majority Leader Mitch McConnell and Committee Chairman Chuck Grassley have masterfully called Democrats’ hand.

Right now, it looks like they’re not holding much. Ford and the Democrats, along with a pliant media, are insisting on an FBI investigation before any hearing, which is nothing more than a stalling tactic. It is also a tacit admission that their attempt to turn the Kavanaugh confirmation into a Title IX kangaroo court has failed.

A Brief Reconstruction Of Ford’s Accusation

Ford, a professor and research psychologist at Palo Alto University in California (and a registered Democrat), began all this in much the same way a female college student might accuse a male student of sexual assault: with an anonymous accusation.

She contacted the Washington Post through a tip line in early July when it became clear that Kavanaugh was on a short list of nominees to replace the retiring Justice Anthony Kennedy. But the Post, which has a rather rigorous process for vetting claims of sexual assault, declined to act on the tip when Ford refused to speak on the record about the alleged assault.

So Ford tried something different: in late July she contacted her congresswoman, Democrat Anna G. Eshoo, and sent a letter via Eshoo’s office to Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee. She signed her name to the letter, but indicated that she expected her story to be kept confidential.

Many Republicans are now criticizing Feinstein for sitting on the letter for months and only bringing it to light after Kavanaugh’s confirmation hearings. But it’s more likely that Feinstein was suppressing the letter, not sitting on it. Although Feinstein and other Democratic Senate leaders would never admit it, they must have known that an anonymous and unverified—and likely unverifiable—accusation like Ford’s would not withstand scrutiny because, after all, this is the U.S. Senate, not a campus kangaroo court.

Ford retained a Washington lawyer in early August, took a polygraph test, and eventually shared the results with the Post, which reported that the test concluded Ford was being truthful about her accusation against Kavanaugh. Still, she didn’t come forward. According to an interview with the Post, Ford had decided by late August not to come forward because it would upend her life and might not affect Kavanaugh’s confirmation.

But then the existence of Ford’s letter to Feinstein was leaked to the Intercept last week, and Feinstein was put in the unenviable position of having to acknowledge that she had had the letter for weeks, had done nothing about it, and would respect the accuser’s anonymity even as she “referred the matter to federal investigative authorities.”

To be clear, Feinstein did not at this time call for an FBI probe, as Senate Democrats are now doing, she simply informed federal authorities as a matter of protocol. Because no federal crime was being alleged, the FBI simply redacted Ford’s name and sent the letter to the White House to be included in Kavanaugh’s background file. The Justice Department has since said in a statement that it is not the FBI’s role to “make any judgment about the credibility or significance of any allegation.”

At this point, the story was snowballing. Ford was being approached by reporters and she was forced to come forward. With scant details about the alleged assault (Ford does not remember the exact time or place, among other things), and unequivocal denials by Kavanaugh and another man Ford said particpated, we are left with a he-said she-said scenario that a Senate hearing is unlikely to clarify or illuminate in any way.

Why Democrats Didn’t Want This To Happen

This can’t be what senior Democratic senators had in mind. So far, this entire affair has exposed nothing so much as Democrats’ hostility to due process and the left’s willingness to destroy a man’s career and reputation—and alter the course of American history—on the basis of an unsubstantiated and uncorroborated allegation.

Perhaps Senate Democrats expected their Republicans colleagues to fold and Kavanaugh to withdraw his nomination. Given Republicans’ track record, one can certainly understand why they might have expected that. Instead, Republicans have doubled down, insisted on a Monday hearing, and given Ford the opportunity to testify any way she chooses, in an open or closed setting. Even senators Susan Collins and Lisa Murkowski look like they’ll vote to confirm if Ford refuses to testify.

But it’s likely that Senate Democratic leadership never wanted it to come to this. On Tuesday, Feinstein said that Ford “is a woman that has been, I think, profoundly impacted, on this… I can’t say that everything is truthful. I don’t know.” Those are not the words of a politician who likes her odds, and they should be understood in light of Feinstein’s failure to act on the letter when she had it in hand.

Indeed, there is only one scenario in which the Democrats could win this: if it is proved that Kavanaugh is lying about any detail connected to the allegation.

Let’s Not Manufacture a Kafkaesque Nightmare

But the Democrats know, as they have known all along, that they have only a slim chance of derailing Kavanaugh’s confirmation. The question is, how far will they debase themselves for that slim chance?

From the moment President Trump nominated Kavanaugh, nearly every Democratic senator vowed to oppose his confirmation—not because Kavanaugh is unqualified, but because he is Trump’s nominee. It was maximum tribal politics from the outset.

In the first moments of Kavanaugh’s confirmation hearing a few weeks back, before Grassley could utter the first sentence of his opening remarks, the younger Democratic senators, especially Corey Booker and Kamala Harris, turned the process into an appalling spectacle as they grandstanded on demands for White House documents they knew they had no chance of ever getting. Now, with Ford refusing to testify until the FBI conducts a “full investigation,” whatever that means, Democrats have been reduced to repeating this talking point, which is nothing but a thinly veiled stalling tactic.

Perhaps the younger senators think these stunts will strengthen their hand going into the November midterm elections. But with Republicans holding the line, and McConnell determined to have a vote on Kavanaugh as planned, Feinstein and other senior Democrats must on some level be aware that they are coming off very badly in all of this.

They must know how this looks to many Americans: it looks like Democrats, who are lurching to the left as November approaches, are treating a Supreme Court nomination like a campus rape tribunal—an echo of Kafka’s nightmarish world, in which a man “should be condemned not only in innocence but also in ignorance.”