With Lindsay Graham playing the part of Casablanca’s Captain Louis Renault — “I’m shocked, shocked, to find there is politics going on here” — we are likely days away from Republicans being handed their winnings in the fight over the nomination of Judge Brett Kavanaugh to fill the seat left behind by now-retired Supreme Court Justice Anthony Kennedy.
The losers in this sordid affair won’t just be the Democrats; it will be the entire country, and we can thank both political parties, the president and Kavanaugh himself for that result.
Make no mistake, each side wants you to believe that it was the other one that brought things so low. Democrats will point to Merrick Garland, the judge from the same D.C. Court of Appeals as Kavanaugh whose nomination by then-
President Barack Obama to replace deceased Justice Antonin Scalia was scuttled for months by Republicans betting on a turn of events in the presidential election. Republicans, in turn, will point to sexual harassment charges leveled by law professor Anita Hill at Clarence Thomas during that justice’s confirmation hearings in the 1990s.
But long before “bork” became a verb — when President Ronald Reagan’s Supreme Court nominee, Judge Robert Bork, was dramatically defeated by a Democratic-controlled Senate — it was a Democratic president’s nominee who was the first Supreme Court candidate to face the innuendo of sexual impropriety.
In 1968, then-Associate Justice Abe Fortas, who was nominated by President Lyndon Johnson to fill the seat being left vacant by retiring Chief Justice Earl Warren, saw his nomination implode when Sen. Strom Thurmond (R-S.C.) decided to screen a pornographic film for the benefit of other senators — a political stunt that came to be called the Fortas Film Festival.
Arch-conservative Pat Buchanan, who was working for future President Richard Nixon at the time and credits the maneuver with costing Fortas the nomination, explained years later that it made sense to draw attention to the film because it was Fortas, “alone among the nine justices, [who] had deemed [the film] acceptable for public viewing.”
That’s not exactly true. When the film’s producers were charged with criminal obscenity by the state of New York and found guilty, Fortas indicated, although without releasing an opinion, that he would have reversed the lower court’s ruling. (The conviction was later overturned by the New York state Supreme Court, thus proving Fortas’ unexplained stance to be the correct one.)
The unified opposition by Republicans and Dixiecrats — southern Democrats who were in the process of switching parties because of the Civil Rights movement — to the Jewish Fortas even had shades of anti-Semitism, as documented by historian David Dalin in Jewish Justices of the Supreme Court, which was released last year. What Buchanan terms a principled stand against a “conspiracy against Richard Nixon” was in fact a bare-knuckled fight that marked the turning point in Supreme Court nominations, the echoes of which we can hear today.
Which brings us back to Kavanaugh. It’s a sorry state of affairs when a common question heard around the Kiddush table at synagogue, as indeed happened this past Shabbat, is, “So do you believe her?” As a matter of fact, I do believe California professor Christine Blasey Ford. More to the point, I do not have any legitimate reason to disbelieve her, and I believe that at the very least, she believes in the veracity of her testimony to the Senate Judiciary Committee.
Does that mean that Kavanaugh is guilty of sexual assault? Absolutely not. For one thing, Senate confirmation hearings are not criminal proceedings. For another, I believe that Kavanaugh firmly believes that he did not pin Ford down during a high school party decades ago and drunkenly try to remove her clothing.
But just as the Fortas hearings weren’t really about free speech and obscenity, the Kavanaugh affair isn’t really about the borderline-criminal hijinks of a prep school jock. It could have easily been, and had it been so, our country would have been much better off.
When you look at the totality of the evidence out there — from Kavanaugh’s performance Sept. 27 to his calendar entries, to his friend’s portrayal of life at their school, to what we all know about teenage behavior and alcohol abuse — it is quite clear that the 17-year-old Kavanaugh was far from the studious choir boy he wanted all of those watching Fox News to believe was his former self.
From the time Ford’s accusation surfaced to today, Kavanaugh had every opportunity to own up to his likely wayward ways thusly: “I honestly do not recall ever having done anything remotely like what Christine is accusing me of, but I do know that I did drink a lot during high school. We all know that people do stupid things when drunk, and kids most of all are in danger of falling into that trap. While I vigorously maintain my innocence, I do apologize to Christine for any harm I may have unconsciously caused her.”
He then could have turned the discussion to the dangers of alcohol use among children, and used it as an opportunity to highlight the necessity to treat minors differently from adults in criminal cases — a key concern among many Democrats.
Kavanaugh didn’t do that. Instead he decided to root his innocence in his being a virgin in high school — a fact that, if true, wouldn’t prove that he didn’t assault or attempt to assault Ford, and a fact that I would have been perfectly happy not knowing.
What this whole episode has demonstrated is the horribly damaging double standard that our society places on women who choose to come forward with stories of their abuse. If they wait, they’re branded as liars. If they can’t remember all the details, they’re branded as liars. If they’re calm when testifying, they’re branded as cool and calculating. If they’re emotional, they’re regarded as shrill.
Men on the other hand — well, just look at the scores of men accusing Catholic priests of abusing them decades ago when they were children. I don’t hear too many people questioning them. And when a man snarls for the television cameras, supporters hold him up as possessing a demeanor fit for the Supreme Court.
While I would never say this about Ford, whom I regard as a woman who has lived with the pain of suffering an assault for all of her adult life, I can say confidently that everything else about the Kavanaugh nomination has been about politics and politics only. That’s about as surprising as gambling going on in Rick’s Café Américain, but it’s sad nevertheless.
Our country deserves better.
Joshua Runyan is the editor-in-chief of the Jewish Exponent. He can be reached at email@example.com.