Commentary Law and Policy

The Attempted Rape Allegations Against Brett Kavanaugh Won’t Doom His Nomination

Jessica Mason Pieklo

I wish I believed the allegations against Judge Brett Kavanaugh would matter enough to end his nomination. I don't think they will.

UPDATE, September 16, 3:45 p.m.: On Sunday, a Palo Alto University professor named Christine Blasey Ford came forward as the author of the letter, saying that Kavanaugh “pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.”

On Thursday, Senator Dianne Feinstein (D-CA) confirmed media reports that she had referred a complaint against U.S. Supreme Court nominee Brett Kavanaugh to the FBI for investigation. Speculation whipped up immediately that the matter involved allegations of sexual misconduct against Kavanaugh. A piece published Friday morning by Ronan Farrow and Jane Mayer confirmed that speculation. President Donald Trump’s choice to replace the now-retired Justice Anthony Kennedy stands accused of attempting to rape a classmate.

I wish I thought these accusations would change a damn thing and that Kavanaugh’s nomination would be swept into the dustbin of history, along with those of Robert Bork and Harriet Miers. But it won’t.

Farrow and Mayer’s piece offers important new rage-inducing details of the allegations that had swirled around Kavanaugh. According to their reporting, the allegation against Kavanaugh dates back to the early 1980s, when Kavanaugh was a high school student at Georgetown Preparatory School, in those mean streets of Bethesda, Maryland. The woman accusing Kavanaugh of assault reportedly attended a nearby high school. In the letter detailing the allegations—which some Democratic lawmakers have apparently known about since July—the woman claims “Kavanaugh held her down, and that he attempted to force himself on her.” The allegations continue:

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She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand. She was able to free herself. Although the alleged incident took place decades ago and the three individuals involved were minors, the woman said that the memory had been a source of ongoing distress for her, and that she had sought psychological treatment as a result.

There is so much to be furious about it’s hard to pick a spot to start.

There is the fact that when asked under oath whether he had ever been accused of sexual misconduct by Sen. Mazie Hirono (D-HI) Kavanaugh said no. That might have been the only direct response to a Senate Democrat’s question during the entirety of his confirmation hearings. Now, Hirono’s question to Kavanaugh was if he had even been accused of harassment or abuse as a legal adult. Kavanaugh told the truth to that very specific question. Some conservatives have suggested this means that Hirono’s question acknowledges that “teenagers will be teenagers.” I think it shows that after decades in and around litigation, Kavanaugh knows how to answer a dangerous question carefully.

Then there is the fact that Kavanaugh and Republicans spent SO MUCH TIME parading around ALL THE LADIES who love Kavanaugh during his Senate hearings as proof his confirmation will be the best thing ever for women. After all, how could a guy who coaches girls’ youth basketball be an abuser, right?

What about the fact that when pressed for details about his time clerking for Ninth Circuit Court of Appeals Judge Alex Kozinski—notoriously accused of sexual harassment by more than a dozen women—Republicans accused Democrats of engaging in “character assassination” against Kavanaugh?

By the way, Kavanaugh has yet to provide any real clarity on what he knew and when he knew it while working for Kozinski.

I haven’t even gotten to the actual allegations against Kavanaugh yet. This isn’t a clerk complaining of inappropriate emails or of Kavanaugh getting handsy at a Federalist Society event, which would be bad enough. This is an accusation of forcible assault with evidence to suggest Kavanaugh knew it was wrong. He allegedly turned up the music so she couldn’t be heard and tried to cover her mouth. This isn’t an allegation of “confusion” around consent. It’s an allegation of an attempted rape.

Kavanaugh has denied the allegations outright. Senate Judiciary Committee Chair Charles Grassley (R-IA), who is doing his absolute best to ram Kavanaugh’s nomination through to confirmation before the November midterm elections, was ready with a letter from other women who knew Kavanaugh in high school to say that Kavanaugh “behaved honorably and treated women with respect.” The insinuation, of course, being that the accuser is lying.

Smearing the accuser is the standard defense when a Supreme Court nominee stands accused of sexual misconduct. After all, just look at the confirmation process for Supreme Court Justice Clarence Thomas. Undermining Anita Hill is exactly how Thomas’ supporters responded to allegations of sexual harassment against Thomas. The entire focus of the hearings shifted away from Thomas and his culpability to Hill and her believability. Days of testimony detailed how Thomas, while an attorney at the Equal Employment Opportunity Commission, would openly discuss his tastes in pornography with female staff and how he would comment on their bodies. Hill also testified that Thomas bragged about the size of his genitals and asked her once if she had placed a pubic hair on his can of Coke. Thomas denied all the allegations and very likely committed perjury to do so.

The Senate confirmed Thomas anyway.

In a way, it should be absolutely no surprise that Trump’s choice to the Supreme Court is himself an accused abuser. Birds of a feather and all that jazz. But I think it’s worth repeating that Brett Kavanaugh has been accused of attempted rape by a classmate, and Republicans all but certainly knew about it and advanced his nomination anyway.

In a world where our institutions still functioned properly, Kavanaugh’s nomination would already be dead in the water. The fact that Senate Republicans have engaged in an unprecedented secrecy campaign surrounding all of Kavanaugh’s time in public service should have at a minimum slowed this process. The idea that Senate Republicans defeated on party lines every attempt by Senate Democrats to access that information, even by subpoena, alone speaks to the irreversibly broken process of the Kavanaugh nomination. The fact that Kavanaugh appears to have been caught in a couple perjury trapsDoesn’t matter.  These allegations? Nope. They likely won’t stop Kavanaugh from being confirmed—maybe even in time to start hearing cases when the Court’s term opens October 1.

Advocacy groups are already calling for Kavanaugh to withdraw his nomination in light of these assault allegations. I wish I believed he would. But why should he? History shows that powerful men who abuse women and lie about it usually don’t face public repercussions.

Often, like Justice Thomas, they get promoted.

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