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Brett Kavanaugh Has Already Disqualified Himself

Badly damaged by accusations of sexual assault, the Supreme Court nominee has shown just how little judicial independence he has.

Chip Somodevilla/Getty Images

Since the sexual assault allegations against him were made public earlier this month, can you think of a single thing Brett Kavanaugh has done or said that makes you more confident that he’ll be a judge of high integrity on the Supreme Court? I cannot. At every step of the way he has acted less like a potential justice and more like a partisan functionary, desperately clinging to the chance at the job of his lifetime. He has, in this way if not others, already disqualified himself for the job regardless of how the (now two) sexual assault allegations against him pan out.

There are Christine Blasey Ford’s credible allegations of “attempted rape” that Kavanaugh must answer for during a hearing scheduled for Thursday before the Senate Judiciary Committee. And now there are new allegations that Kavanaugh engaged in sexual misconduct not just in high school, when Ford says the episode took place, but also at Yale University, where Kavanaugh attended. A woman named Deborah Ramirez has stepped forward to tell Ronan Farrow and Jane Mayer at The New Yorker that Kavanaugh thrust his penis in her face at a drunken party in the 1983-84 school year and made her touch it.

Kavanaugh denies the new allegation with the same vigor with which he has denied Ford’s allegations. But the emergence of Ramirez makes it even more imperative that Republicans on the Judiciary Committee stop the voting track and investigate all of this in a serious way. That means they must abandon the he-said/she-said plan for Thursday’s hearing and open it up to other witnesses who will either incriminate or exculpate Kavanaugh and the women who say he’s a sex offender. And it means Kavanaugh and the White House must abandon the approach they’ve taken to his defense so far.

Kavanaugh is not on trial for his life. He’s not a defendant in a court of law. His accusers and their supporters need not make a case of guilt beyond a reasonable doubt. They don’t even need to make a case using the civil standard of a “preponderance of the evidence.” This notion that Kavanaugh can convince America that he is innocent by producing his calendar from 1982 is patently absurd in a process in which live witnesses are barred from providing their insight about what Kavanaugh’s life was like in those days. It wasn’t going to fly when Ford was the only accuser. It’s certainly not going to fly now that Ramirez has stepped forward.

But put aside these other people and focus only on the man who wants to help shape the course of American law for the next two generations. The man who preached “judicial independence” during his listless testimony before the Senate Judiciary Committee earlier this month, the man who is a life-tenured judge on a federal appeals court, spent parts of at least four days last week at the White House being “prepped” for his looming confrontation with Ford. Prepped, that is, by the very executive branch officials whose presidential privilege claims he may be asked to adjudicate, in a matter of months perhaps, if he ascends to the High Court. That’s not judicial independence. That’s a conflict of interest.

The nominee became “incredibly frustrated,” we are told, about all the questions he now has to answer about his drinking habits and sex life as a teenager. The pious preacher of integrity and honor during his confirmation hearing would rather get the job without having to tell the American people what sort of teenager he was. That attitude—the antithesis of selfless public service, an anti-judge perspective, a good-old-boys thing—was summed up on a Sunday talk show. “What am I supposed to do?” wailed Senator Lindsey Graham, a member of the committee. “Go ahead and ruin this guy’s life based on an accusation?”

No. What Graham and his Senate colleagues are supposed to do is take the Ford and Ramirez allegations seriously and do everything possible to ensure a full and fair investigation takes place before there is a vote on Kavanaugh’s nomination. What they are supposed to do is realize that going public with the allegations already has “ruined” Ford’s life, a reality about sexual abuse she understood for all those long years in which she remained silent. Indeed, what’s persistently missing from the Republican defenses of Kavanaugh is the extent to which Ford and Ramirez already have laid it all on the line.

And Kavanaugh? What he’s supposed to do is everything he has not done so far. He’s supposed to say that it is more important to him to get to the heart of the matter, wherever it leads, than it is for him to get promoted to the Supreme Court. He’s supposed to say that he will withdraw his name from consideration for the job if the Senate is unable or unwilling to adequately investigate the Ford and Ramirez claims. He is supposed to put his country above his own personal and professional goals. If he is as innocent as he and his defenders claim he is, this is the only “honorable” approach out of this mess.

I keep going back to all that prep work and Kavanaugh’s reaction to it. Kavanaugh is no ordinary witness, this is no ordinary testimony, and so what is there to prep for, exactly, if Kavanaugh is as innocent as he claims? What kind of “lawyering up” does lawyer Kavanaugh need if he were not at that long-ago party where Ford alleges she was almost raped? Or the other party where Ramirez says Kavanaugh imposed himself on her? The nominee is no novice when it comes to courts and courtrooms. He doesn’t need a lesson, or a reminder, in how a witness should or should not act. He has to be both persuasive and honorable, writes Benjamin Wittes, but if that is true then it’s either genuine, in which case Kavanaugh needs no coaching, or it is not, in which case Kavanaugh is worse than dishonorable.

The truth is that Kavanaugh is being coached in great detail to clap together precisely the right phrases during his next round of public testimony that will allow Vichy Republicans like Susan Collins or Jeff Flake to declare themselves satisfied that he’s not an attempted rapist. He’s also being coached on what to say more broadly about sexual assault and victimization so as not to further erode Republican support among women this election season. There is nothing about any of this that enhances anyone’s argument that Kavanaugh has a judicial temperament that warrants his inclusion on the Supreme Court.

As if Kavanaugh’s collusion with the White House in advance of his Senate testimony isn’t worrisome enough, there also now is the question of the connection, if any, between Kavanaugh and Ed Whelan, the conservative ideologue who pitched a dubious “mistaken identity” theory last week in which he named another man as Ford’s possible abuser. Did Kavanaugh and White House operatives know that Whelan was going to pitch this conspiracy theory dreck? Would it surprise anyone that Bill Shine, the former Fox News executive now at the White House, would pull a stunt like that? And what happens now that Ramirez has emerged? More strategy sessions between the executive and judicial branches?

I can understand how upset Kavanaugh is, as I wrote last week, being so close to his life’s goal only to have this happen. But that does not excuse the very un-judge like behavior Kavanaugh has exhibited in the past two weeks. He has acted like a guilty man trying to hide something instead of a righteous man knowing the truth will help him past this hurdle. He as acted like a nominee who believes it’s more important to get the job than it is for him to have any respect when he has the job. Even if you didn’t think he was disqualified for the ferocity of his conservative ideology, his reaction to these allegations tell us he’s unworthy of the job for which he is nominated.