Brett Kavanaugh’s defenders have offered four main arguments for confirming him despite the allegations of Christine Blasey Ford and two other women who have accused him of sexual misdeeds.
1. Forgive the Indiscretions of Youth
The first is that even if the allegations are true, Kavanaugh’s life shouldn’t be ruined because of things he did more than thirty years ago, as a high school or college student. As many have noted, that’s not the approach that generally guides conservative attitudes toward juveniles accused of crimes. When five black and Latino teenagers were accused of raping and assaulting a white female jogger in Central Park in the 1980s, Donald Trump bought newspaper ads demanding the death penalty. But the hypocrisy charge can go both ways: If liberals generally believe in forgiving young people who commit crimes, why not forgive Kavanaugh too? The answer is obvious: He has not requested forgiveness. To the contrary, he denies any wrongdoing. If you think Kavanaugh didn’t do what Blasey Ford alleges, that’s fine. But if you presume — as argument number one does — that her allegations are true, then his protestations of innocence represent a serious character flaw. Even in the most merciful and lenient of moral and legal systems, people who want leniency and mercy have to acknowledge their misdeeds.
2. The Democrats Made It Happen Like This
Argument number two is that Kavanaugh should be confirmed because the Democrats are acting horribly: They hid Blasey Ford’s allegation until the last minute, thus preventing the kind of quiet, careful investigation that would have been less humiliating for both Blasey Ford and Kavanaugh. And it’s that party who are crediting crazy new charges brought by charlatans like Michael Avanatti. Given Republican reluctance to support a thorough investigation now, I’m dubious that they would have initiated one had Feinstein forwarded Blasey Ford’s allegations earlier. But let’s assume conservatives are correct: Democrats on the Judiciary Committee have acted horribly. So what? If Kavanaugh did what he’s accused of — and lied about it — the monstrousness of his political opponents is irrelevant. He doesn’t deserve a seat on the Supreme Court.
3. If All It Takes Is One Woman’s Testimony (Just Think About the Precedent)
Argument number three is that if Kavanaugh goes down, every future Supreme Court nominee will be defamed by people making wild charges of sexual assault or something equally vile. But this is unconvincing. Sure, liberals are desperate to keep Kavanaugh off the court. Yet they were almost as desperate to defeat Neil Gorsuch and — despite the fact that Gorsuch went to the same school as Kavanaugh — they produced not a single charge of sexual assault.
Nor have they produced one against any of the eleven Republicans on the Judiciary Committee — or the fifty-one Republicans in the Senate — though that too would be extremely helpful to their efforts to prevent the confirmation of Trump’s Supreme Court nominees. Nor did they produce such a charge against Jeff Sessions, whose confirmation as Attorney General they badly wanted to stop. If the Democrats were as depraved — and if women lied about sexual assault as casually — as conservatives seem to believe, rape charges against Republican Supreme Court nominees would be old news by now.
4. An Innocent Man
Which brings us to argument number four, by far the most important: That Kavanaugh just plain didn’t do it. After all, journalists have not been able to find any witnesses to the allegations made by Kavanaugh’s second and third accusers, Deborah Ramirez and Julie Swetnik. Blasey Ford can’t name the time or place of her own alleged assault, and the three people she names as being there can’t recall the gathering where she claims it took place. That includes Leland Ingham Keyser, who unlike the others is a friend of hers, not Kavanaugh’s. It’s not shocking that Keyser wouldn’t remember the gathering given that it was unremarkable except for the assault, which Blasey Ford didn’t tell her about. But it is still noteworthy that Keyser reportedly has no memory of ever having met Kavanaugh at all.
Could argument number four be true? Absolutely. But there’s one big problem: Blasey Ford has no reason to lie. Kavanaugh does, and – evidence shows – he already has lied about other, less important things in his testimony. Blasey Ford did not want to come forward, and for good reason: Her allegations have upended her life. She and her family are now in hiding. Sure, she’s now famous and admired by many American women. But it’s a fame she clearly did not want and tried — until forced to abandon her anonymity by the press (perhaps with the help of Senate Democratic leakers) — to avoid.
If this is the price of a truthful charge, why on earth would Blasey Ford make a knowingly untruthful one? One answer is ideological: she’s desperate to keep a conservative off the supreme court. But Blasey Ford phoned in her anonymous allegation before Kavanaugh was even chosen in hopes of convincing the White House to select someone else from its Federalist Society-produced list. She wasn’t trying to block a conservative from joining the Supreme Court; she was trying to prevent that one person from being the one chosen.
Could Blasey Ford think she’s being truthful but be misremembering? No sentient human with a shred of emotion could have watched her testimony and deny that she was assaulted. But maybe she misremembers the attacker? It’s possible. But she identified Kavanaugh to her husband and therapist in 2012.
Weigh that against Kavanaugh’s motivation: He has a colossal incentive to lie, and to lie full bore. If he admitted even the possibility that he had done what Blasey Ford alleges, he’d never make it onto the Supreme Court. He might not even be able to retain his current job. It’s also easier to imagine that Kavanaugh — as opposed to Blasey Ford — simply doesn’t remember. The event played a much larger role in her life than in his. And she alleges that he was extremely drunk, something that’s consistent with what others have said about his high school and college behavior. She wasn’t drunk. That could also explain why he doesn’t remember.
Finally, Kavanaugh doesn’t only have an incentive to lie about not having committed the assault and not having ever blacked out from drinking. He actually has lied. At his confirmation hearing he claimed that the phrases “Renate Alumnius,” “Devil’s Triangle” and “Boofed” on his yearbook page had no sexual connotations. That violates the common understandings of all three terms, as verified by several of his classmates.
Sure, Kavanaugh could have lied about these terms for tactical reasons — they undermined the picture of good character he was trying to establish — while still being innocent of Blasey Ford’s charges. But, ultimately, one has to ask why, given what we have learned from the #metoo movement about the pervasiveness of sexual harassment and assault and given the unimpeachable integrity we expect from Supreme Court justices, Americans should give Kavanaugh the benefit of the doubt?
We will never know for sure what happened that night in the early 1980s but the principle of Occam’s Razor suggests that, “When you hear hoof beats, think horses, not zebras.” I know many women who have been sexually assaulted and harassed. I don’t know a single man who has been falsely accused. Yes, it happens, but it’s the equivalent of a zebra, and Blasey Ford has done nothing to suggest she’s among that rare species. Kavanaugh, by contrast — especially given his heavy drinking, incentive to lie and apparent lying under oath — seems like an all too familiar creature: A man trying to escape responsibility for his past misdeeds.
Peter Beinart is a senior columnist at the Forward.
Peter Beinart is a Senior Columnist at The Forward and Professor of Journalism and Political Science at the City University of New York. He is also a Contributor to The Atlantic and a CNN Political Commentator.