Opinion | This is the Kavanaugh mess we feared



Justice Brett M. Kavanaugh at his ceremonial swearing-in in the White House in October 2018. (Susan Walsh/AP)

In September 2018, I warned about the abbreviated FBI investigation into allegations that Brett M. Kavanaugh engaged in sexually aggressive behavior: “If Democrats retake one or both houses in November, they will be able to investigate, subpoena witnesses and conduct their own inquiry. The result will be a cloud over the Supreme Court and possible impeachment hearings … Kavanaugh has not cleared himself but rather undermined faith in the judicial system that presumes that facts matter.”

And sure enough, two New York Times reporters have found multiple witnesses to the allegations from Deborah Ramirez that Kavanaugh exposed himself during a dorm party at Yale. One newly discovered witness had information concerning yet another, similar event. That witness, Max Stier, is the chief executive of Partnership for Public Service, a nonpartisan group that, among other things, tracks nominations and confirmations. According to the Times report, he brought the information to the Senate Judiciary Committee (Who? Who knew about this?) and to the FBI. (I have relied on him for expertise about the federal government and found him to be scrupulously nonpartisan and honest.) He might have been a compelling witness. The New York Times now reports that the woman involved in the incident Stier witnessed does not remember it.

Democratic candidates Sens. Elizabeth Warren (D-Mass.) and Kamala D. Harris (D-Calif.), as well as Julián Castro, are arguing for impeachment on the theory that Kavanaugh lied about his past conduct and engaged in sexually abusive behavior. There is certainly merit in the idea that regardless of the Senate’s unwillingness to remove him, the American people should understand just who this justice is, how the investigation of him was rigged and how his elevation to the Supreme Court has sullied the institution. That might figure prominently if and when a Democratic president has the chance to reshape the court.

Ilyse Hogue, head of NARAL Pro-Choice America, told me, “Americans should be appalled that GOP Senators are complicit in the cover-up of Brett M. Kavanaugh’s abuses rather than demanding all evidence be brought [to] light before confirmation.” She continued, “We can’t undo the wrongs that have been done to these women but we can and will make those who refused them justice pay at the polls next year. We’re hearing from voters from Maine to Colorado who are committed to make this count.”

And speaking of Maine, it’s Sen. Susan Collins (R-Maine) who will once more receive the lion’s share of the criticism and anger. Not only did she cast the last holdout vote on the premise that Kavanaugh would uphold the right to an abortion (!), but she accepted an obviously fraudulent investigation. Had she demanded a real inquiry, including witnesses we now know about, the truth might have come out before Kavanaugh was elevated to the court. The Supreme Court might not have been grievously diminished. Collins was already high on the list of progressives’ targets for 2020. This will be one more reminder that she utterly failed in her role to render advice and consent on judicial nominees.

The latest Kavanaugh revelations, as we predicted, were inevitable. The cursory and artificially restricted FBI investigation was a farce, a Kabuki dance to give Republicans cover to vote for him. When a Democratic majority in the House and a Democratic president (if they prevail in 2020) decide to waive privileges, open the investigation up to scrutiny and demand that FBI Director Christopher A. Wray testify, more and more evidence will tumble out. And then what? We’ll revisit the same fight we had in the Kavanaugh hearing. While a Democratic House might conceivably impeach him for lying under oath, the Senate would never obtain a two-thirds majority that would leave the “Kennedy seat” to be filled by a Democratic president.

Kavanaugh already is tainted in the eyes of those who believe he lied when he denied any and all allegations of sexual conduct as well as excessive drinking. A cloud hangs over the Supreme Court as things stand, and perhaps it would get darker with some investigation. Nevertheless, Kavanaugh would remain — given that Republicans would never vote to remove him and Kavanaugh would never resign. The credibility, fairness and honesty of the court will be in doubt for as long as he sits on the court.

If Democrats do win the White House, they may pursue this, or worse, ratchet up the Supreme Court wars by adding seats (Well, Kavanaugh’s vote shouldn’t count! And the Gorsuch seat was illegitimate, too!). The Supreme Court will continue to hemorrhage respect and legitimacy. And the pattern will continue, another institutional casualty in the Trump era. If only Collins had displayed the courage to demand a legitimate investigation, both parties, the Senate and the Supreme Court might have avoided this debacle.

Read more:

E.J. Dionne Jr.: The Kavanaugh revelations: Why the Supreme Court is broken

Larry Behrendt: I filed one of the 83 dismissed misconduct complaints against Brett M. Kavanaugh. Here’s why.

Thomas Wheatley: In keeping Brett M. Kavanaugh, George Mason made the right move

Charles Ludington, Lynne Brookes and Elizabeth Swisher: We were Brett M. Kavanaugh’s drinking buddies. We don’t think he should be confirmed.

Patrick Leahy: Brett M. Kavanaugh misled the Senate under oath. I cannot support his nomination.

Leah Litman: The latest chapter in the Gorsuch-Kavanaugh saga is the most revealing yet

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