When Supreme Court Justice Anthony Kennedy announced his retirement from the nation’s highest court in July 2018, long-time political observers predicted that the confirmation process to find his successor would be charged with bitter partisanship. Few might have been able to predict, however, just how angry and nasty it would actually become.

Judge Brett Kavanaugh, nominated for the Supreme Court by President Donald Trump on July 9, was chosen to succeed Kennedy on the basis of his long governmental and judicial career that included service to the Special Counsel Ken Starr who investigated President Bill Clinton, a stint in the White House under President George W. Bush and then more than a decade as a member of the U.S. Court of Appeals for the D.C. Circuit. But he was also chosen for the high court vacancy because he was well-known in Washington, D.C. – he is a native Washingtonian – and seemed a nominee who stood a very good chance of being confirmed.

 

Scorched Earth

Democrats in the U.S. Senate recognized from the moment of the Kennedy retirement the fundamental mathematics of the ensuing confirmation process. The Republicans held a majority in the Senate, with a 51-49 superiority, and the task of derailing any nominee was made even more difficult by the presence of the nuclear option that rendered moot the option of a filibuster. That left limited options, and in the confirmation hearings, the minority members of the Judiciary Committee worked aggressively to paint Kavanaugh as an existential threat to the nation, in particular because of what they believed would be a decisive vote to overturn Roe v. Wade, the landmark 1973 decision to legalize abortion in the country. The Democrat effort was characterized succinctly by Senate Minority Leader Chuck Schumer, D-N.Y., who pledged to “oppose Judge Kavanaugh’s nomination with everything I have.”

Kavanaugh, however, emerged from the confirmation process largely unscathed, and he seemed poised to receive confirmation in an impending Senate vote. That plan was then completely upended by the accusation by Dr. Christine Blasey Ford that Kavanaugh had attempted to rape her 35 years ago when they were both in high school. Serious as the accusations were, the counter charge by Kavanaugh supporters soon followed that Ford lacked any witnesses and any corroboration for the charges. The partisan divide on the allegations was exacerbated further by the discovery that California Democrat Senator Dianne Feinstein – the ranking Democrat on the committee – had been sitting on the accusation since July and that Ford’s claims had been leaked to the media.

Judge Kavanaugh “categorically and unequivocally” denied the allegations, but the media frenzy that followed was largely and predictably slanted against him. A Media Research Center study found that only 8% of all television coverage was devoted to Kavanaugh’s denials and the lack of corroboration for his accuser. The focus on the salacious accusations only increased when two other accusers emerged, again without corroboration, including one charge that Kavanaugh had taken part in a gang rape around the same time as his alleged attack on Ford.

All of this served as the backdrop to the rancorous partisan bickering and negotiations that led to the Senate Judiciary Committee’s hearing into the accusations of sexual assault. What unfolded was one of the most depressing hearings in the long history of the Senate.

 

Charge and Rebuttal

The build-up to the testimony of Dr. Ford before the committee could not have been more dramatic. Her actual appearance included a prepared statement and then a series of five minute question periods. While Democrats worked assiduously to defend Ford and savage Kavanaugh, the Republicans largely yielded their time to an experienced prosecutor, Rachel Mitchell, head of the special-victims division of the Maricopa County attorney’s office in Arizona. As Emma Green wrote in The Atlantic,

As the hearing got underway, it took on an odd rhythm. Mitchell questioned Ford methodically, but she was on borrowed time: While each Democratic and Republican senator on the committee was given five minutes, only Republicans yielded their time to Mitchell. So the prosecutor spoke in bursts: Mitchell would spend five minutes asking Ford whether she was drinking or on medication; whether her texts with a Washington Post reporter were correct; whether she remembered where the people involved had lived. And then a Democrat would take the microphone, giving an impassioned speech about victims of sexual abuse and the cruelty that Ford has suffered. It was as though a lawyer’s deposition had been spliced with clips from cable TV.

Analysts will argue the merits of using a prosecutor to represent the Republican members of the committee (who were clearly uncomfortable with the optics of having eleven white men interrogate a woman). For her part, Mitchell did not dislodge Ford from her basic claim that Kavanaugh had attacked her more than three decades ago. Bolstered by the Democrat members of the committee, Ford asserted that she was “100% certain that it was Kavanaugh who assaulted her.

As he has done since the accusations first surfaced, Judge Kavanaugh denied them. But before the committee, he expressed intense anger and called the confirmation a “circus” and a “grotesque and orchestrated character assassination." He added, “The Constitution gives the Senate an important role in the confirmation process. But you have replaced advise and consent with search and destroy."

The interrogation included repeated demands for another FBI investigation and mocking questions about his high school yearbook, including references to beer and flatulence.

Judiciary Committee Chairman Chuck Grassley repeated Kavanaugh’s assertion of previous FBI background checks, noting that multiple previous FBI investigations of Kavanaugh turned up no indications of crimes. “Nowhere in any of these six FBI reports, which committee investigators have reviewed on a bipartisan basis, was there a whiff of any issue," Grassley declared. Sen. Orrin Hatch, R-Utah, also called the hearing a “national disgrace.”

Democrats, meanwhile, praised Ford as a national hero and continued to attack Kavanaugh throughout the hearing.

 

The Partisan Divide

The Judiciary Committee will vote, and it is expected Kavanaugh will be approved. What awaits him on the Senate floor is now an open question. From the beginning of the confirmation process, the final fate of the nominee has rested with a handful of Senators: Republicans Susan Collins of Maine, Lisa Murkowski of Alaska and Jeff Flake of Arizona, and Democrat Joe Manchin of West Virginia. Republicans can only lose one vote and still confirm Judge Kavanaugh, with Vice President Pence casting the decisive tie-breaking vote.

This is a story that has moved well beyond a vote on Capitol Hill. Win or lose, Judge Kavanaugh has earned a place in American political history. His confirmation process joins the infamous political spectacles of the 1987 hearings for Judge Robert Bork (that turned his name into a verb for describing character assassination and the politics of personal destruction) and the 1991 hearings for future Justice Clarence Thomas.

The unquestionable vitriol and partisanship that played out in the hearing represented less a pursuit of the truth of the accusations regarding an alleged but disturbing incident from 35 years ago than political theater aimed at swaying public opinion and pressuring undecided Republican and Democrat moderates in the Senate. The charges cannot as yet be corroborated, but belief or rejection of them fell almost exactly along the partisan divide that has only grown wider and deeper since the election of Donald Trump in 2016 as president and the willingness of his opponents in Congress and the media to abandon even the pretense of fairness.

Supporters of Kavanaugh argue that the judge has been targeted because of the hatred for Trump and because the pro-abortion movement in the country sees him as a real threat. Many more in the country have expressed immense dismay at the way all of the allegations have been handled, the apparent abandonment of any assumption of innocence when accused of crimes and the manipulation of the #MeToo movement for political gain.

Whether one believes Dr. Ford or Judge Kavanaugh, one thing is manifestly and painfully clear. There is something deeply wrong with the body politic. Instead of a process that respected the rights and dignity of both the accuser and the accused, the Senate sank into another depressing exercise in partisan scorched earth politics. Where will this end? One might believe or disbelieve the accusations against Kavanaugh, but one warning he made to the committee on the consequences of the process seems especially significant. “The consequences,” he warned, “will extend long past my nomination, the consequences will be with us for decades.” There were no winners in this brutal, ugly and lurid political exercise in Washington. Every American lost, and the country is spiritually poorer because of it.