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Brett Kavanaugh and a Senate Judiciary Committee That Isn’t Built for Justice

The hearing room isn’t a courtroom. It’s a stage. That much has become clear after a dramatic series of events during Kavanaugh’s Supreme Court nomination hearing. An account of attempted sexual assault has only heightened the hypocrisy.

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In the television age, congressional hearings are a civic spectacle. They’re occasionally revealing. They’re occasionally dramatic. They’re mostly boring and pointless. The Constitution empowers the Senate to confirm or reject presidential nominees. Typically, the relevant committee votes to recommend confirming a nominee before referring them to a full vote. Occasionally, the committees won’t even bother to subject appointees to confirmation hearings. The congressional leadership might expedite the president’s appointees, such as district court judges, sending them straight to the Senate floor.

Senate Majority Leader Mitch McConnell and Chuck Schumer, the minority leader, recently agreed to such an accelerated arrangement for 15 federal district court judges, who serve lifetime appointments. The fast-tracking has very little to do with the integrity of the nominees in question. It’s all horse-trading between the two major political parties. There’s nothing so judicious about the Senate Judiciary Committee’s discretion. The hearing room isn’t a courtroom. It’s a stage.

For the past month, the committee has been a staging ground for a national debate about the health, rights, and credibility of women. President Donald Trump nominated conservative judge Brett Kavanaugh — a former Bush administration staffer and rumored abortion rights opponent — to the Supreme Court. Christine Blasey Ford, a research psychologist from California, recently said that Kavanaugh attempted to sexually assault her. The incident dates back 35 years to a Maryland house party, where Ford says that Kavanaugh and his high school classmate, Mark Judge, cornered her in a bedroom and subdued her, forcibly attempting to remove her clothes, until she broke free and fled the house. Kavanaugh denies Ford’s account and says he didn’t attend the party that she describes. In July — a few days before Trump announced Kavanaugh’s nomination — Ford began to share her account with a few legislators and journalists based in Washington, D.C.

Unfortunately, this is where the Senate Judiciary Committee comes in. By the end of July, Ford had sent a letter to her home state senator Dianne Feinstein, detailing her account but also asking Feinstein to keep her correspondence in confidence. So Feinstein declined to share the letter with her colleagues on the committee, which hosted Kavanaugh for three contentious, televised days of questioning before Ford’s allegations leaked to other congressional offices and, eventually, the press. “Only after the details of her experience were leaked did Dr. Ford make the reluctant decision to come forward publicly,” Ford’s attorneys wrote to the committee’s Republican chairman, Chuck Grassley.

Throughout Kavanaugh’s first week of testimony, the committee’s Republican senators presented Trump’s latest Supreme Court nominee as a monumental inevitability. “We are going to confirm you,” Orrin Hatch said in his opening remarks. Ford’s allegations have rendered Kavanaugh’s confirmation dramatically less certain. Through her attorney, she offered to testify about Kavanaugh before the Senate Judiciary Committee, provided the FBI also investigates her claims to provide her some additional measure of credibility and due process. “A full investigation by law enforcement officials will ensure that crucial facts and witnesses in the matter are assessed in a non-partisan matter,” Ford’s attorneys wrote in their recent letter to Grassley. Otherwise, the committee might reenact the infamous confirmation hearings that humiliated Anita Hill, the attorney who said that her colleague Clarence Thomas — then a Supreme Court nominee who would go on to be confirmed — sexually harassed her.

Grassley and the Department of Justice have dismissed Ford’s appeal to federal investigators. Grassley says an FBI investigation wouldn’t affect Ford’s testimony, and therefore has no bearing on the hearing; the Justice Department says Ford’s account doesn’t contain any potential violations of federal law, and thus is inactionable. Clearly, the Republican leadership is growing impatient. The Democrats stalled the hearings for a week before Ford’s name, and then her letter, leaked to the press, so now the Republicans have begun to suggest that Ford’s ambivalence, and her appeals to the FBI, reveal her to be in league with the Democrats, who intend to ruin Kavanaugh’s nomination regardless of the truth about Ford, Judge, and Kavanaugh. Initially, the White House trod carefully. Trump and Kellyanne Conway welcomed the idea of the Senate Judiciary Committee hearing Ford testify, but now the GOP is pushing for a full Senate vote on Kavanaugh’s nomination next week. “Judge Brett Kavanaugh is a fine man, with an impeccable reputation, who is under assault by radical left wing politicians who don’t want to know the answers,” Trump tweeted on Friday morning, “they just want to destroy and delay.”

The GOP is rushing to confirm Kavanaugh before potentially losing control of Congress in the midterm elections, less than two months from now. The deadline is a political deadline; the allegations themselves are largely beside the point. Earlier in the week, Republicans and Democrats together criticized Feinstein for proceeding cautiously, and too quietly, at Ford’s request. Kavanaugh’s next appearance before the committee is scheduled for Monday. Per the latest update from Ford’s attorneys and Grassley’s office, Ford is unlikely to appear.

The committee, in all its spectacular heedlessness, seems to have scared Christine Blasey Ford back into troubled obscurity. If she testifies — presenting herself before a fleet of TV cameras in a packed hearing room — Ford will face more public scrutiny, as a private citizen, than the Republicans ever attended to afford Kavanaugh as a potential lifetime appointment to the nation’s highest court. On Tuesday, The New York Times published a column by none other than Anita Hill, who argues that Kavanaugh’s confirmation hearings might ideally redress former Senate Judiciary Committee chairman Joe Biden’s disastrous mismanagement of the Clarence Thomas hearings.

“That the Senate Judiciary Committee still lacks a protocol for vetting sexual harassment and assault claims that surface during a confirmation hearing suggests that the committee has learned little from the Thomas hearing, much less the more recent #MeToo movement,” Hill writes. The dereliction isn’t limited to this one committee. In December, McConnell promised to launch an investigation of sexual harassment claims against Al Franken, who ultimately resigned from the Senate without ever addressing a committee. In the same month, John Conyers resigned from the House under similar circumstances, facing accusations of sexual harassment that the House Ethics Committee promised to investigate. But no investigation materialized. Conyers resigned, and Congress simply moved on.

The Senate Judiciary Committee has invited Ford to testify in public or private. It’s her choice. She might decline altogether. In any case, she may live to regret interacting with a committee designed to churn out promotions with minimal discretion or hesitation. There’s very little due diligence happening here. There is only a theater that bills one woman’s trauma as just another nominee’s drama.