COMMENTARY: Kavanaugh flap may have lasting effect on Supreme Court

It’s too early to know what will become of the nomination of Brett Kavanaugh. But we should fear for the future of the U.S. Supreme Court.

On the one hand, the testimony of women who make accusations of sexual misconduct often are credible simply because of how difficult it is for such women to go public, especially if they are alone.

On the other hand, there is no evidence that Judge Kavanaugh has ever done anything like what he is accused of for the rest of his life. Often, those accused of such behavior do it over and over again. We then label them predators. Dozens of women who have worked for or with Kavanaugh over the years praise him to the skies and refute any idea that he ever approached them romantically or sexually.

Reid K. Beveridge

So we just don’t know although many of us know what we believe, or whom to believe. The current situation parallels in some ways what occurred in 1991 to now-Justice Clarence Thomas. He was nominated by President Bush and confirmation hearings had been completed. Then Anita Hill came forward.

Two differences. One is that no election was imminent at the time of the Thomas nomination. The second is that the Senate had a substantial Democratic majority, with our own U.S. Sen. Joe Biden chairing the Judiciary Committee. However, the Thomas appointment was somewhat popular in a bipartisan way.

Then, of course, there is the #MeToo movement. Sexual misconduct allegations were taken less seriously in 1991 than they are now. Today, the assumption is that such accusations are true. This allows Kavanaugh’s opponents to demand delay and defeat. It allows the accuser to demur from appearing before the Judiciary Committee until her demands are met, beginning with an FBI investigation.

The FBI would do this, of course, if ordered to. Otherwise, probably not simply because it is neither a federal criminal matter nor a national security matter, the usual and almost only reasons why the FBI investigates anything. Not to mention that the allegation is of something that allegedly occurred 36 years between and among a bunch of drunk teenagers. The likelihood of agents turning up any new information that is dispositive is remote to non-existent.

Can you remember where you were and what you did on a specific date 36 years ago, especially if you were in high school?

Even with such an investigation, it most likely would end up being what it is at the moment: Some variation of “he said, she said.” She says he pinned her on a bed, covered her mouth so she couldn’t scream, and tried to take off her blouse.

He says he wasn’t even at the party she references, not to mention the fact she can’t remember exactly when or where the party occurred. Which, of course, makes it difficult for Kavanaugh to respond or defend himself.

If Kavanaugh is ultimately confirmed and joins the high court next month, things will remain much as they are, deeply divided politically, but with the system intact.

However, if Kavanaugh is rejected, all bets are off.

It may, and likely will mean that no Supreme Court nomination from either a Democrat or Republican can be confirmed — ever. No nominee President Trump would put forward could ever be confirmed by this Senate, especially if Democrats gain a majority in the November election. And Trump will not nominate anyone the Democrats would support. Further, no nominee from a future Democratic president can be confirmed if the Senate has a Republican majority.

The grim point here, though, is that if the previously anonymous letter from Dr. Christine Ford is allowed to be the criteria for derailing a Supreme Court nominee, both sides or all sides can use this, or some similar technique, for defeating any future nominee they don’t like. That’s a lot of nominees.

Hence, any future nominee, therefore, could only be confirmed on a party-line vote, with more than a bare majority needed because of defections.

Good luck with that, Chief Justice Roberts. He could be operating with eight justices for long periods, perhaps even as few as seven.

Reid Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C.

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