DAVID WEBBER: Lessons from the Kavanaugh nomination

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Supreme Court Justice nominee Brett Kavanaugh’s confirmation process epitomizes the present-day political process at its worst.

This is an old-fashioned barroom brawl. A knock-down, slug-it-out football game. It’s trench warfare for which I do not have an appetite. It should not have been like this — but we knew it would be because the stakes are perceived to be so high.

Supreme Court confirmations have gotten more scripted, less genuine and more polarized over the past three decades. Certainly Senate Republicans denying President Obama’s nominee a vote in 2016 fueled the flames.

Kavanaugh’s nomination is widely considered to be high-stakes because it could lock in a conservative majority on the Supreme Court that many fear would accept further restrictions of women’s choice delineated in Roe v. Wade in 1973. With several justices in their 80s, it is likely we will see another court vacancy before 2020. Let’s hope the Senate does better next time.

Professor Christine Blasey Ford’s allegations against Kavanaugh made in July to Sen. Dianne Feinstein, D-California, should have resulted in Feinstein and the Senate Judiciary Committee deciding how to proceed.

Partly because Senate Democrats were focusing on Kavanaugh’s strategic non-disclosure of memos and briefs he had written in earlier governmental positions and his strategically vague statements to the committee, Ford’s allegations were not revealed until a Senate staffer leaked Blasey’s memo to Feinstein to the media.

So now the Senate Judiciary Committee needs to decide to move on and vote or to take time for further investigation. Meanwhile the political clock ticks toward the midterm election — a fact all participants are aware of.

Kavanaugh’s future is a debate between those who instinctively react with “I can’t imagine he would do this” and those who say “her claims are credible.” Of course, we all reach these impressions based on our own personal experiences and media accounts, not on personal knowledge of Kavanaugh or Blasey.

Sex, unlike legal principles and practices, is something we all can have opinions about that seem to make sense. It is hard to know the truth.

Many of the highly publicized cases of sexual harassment that have come to light, including Anita Hill’s allegations against Justice Clarence Thomas, involve employment-related “hostile work environments.” Usually, unfortunately, multiple allegations are considered by an employer or prosecutor.

A 36-year-old sexual assault allegation by someone who was a teenager then coming before a Senate committee in a politically charged environment is different. We should proceed down this path carefully.

With so much electronic health information and photo images online that may be available forever, it is not hard to imagine that personal information like SDT tests and treatments might turn up in the middle of a political campaign two years later.

The media debate has focused on the “truthfulness” on Blasey’s allegations against Kavanaugh. That may be too simple. It is possible that her memory of being assaulted is essentially accurate, but she incorrectly thinks he was the assaulter. A Senate committee hearing is not the place to figure this out.

Our criminal justice system has produced many wrongful convictions based on the faulty memories of people who are certain they have correctly identified the perpetrator. Apparently, retelling an incident repeatedly hardens it in our memory, even if the initial recognition is wrong.

One way this mess could have been avoided is for President Trump to have nominated a 60-year old judicial moderate rather than a 50ish ideologue who has been getting his ticket punched at the requisite way stations since his youth.

While he was at it, Trump should have looked for a non-Eastern Ivy League lawyer who is in the same mold as the chief justice and many lower court appointments.

At this point, Senate strategy is all about clock control. A few weeks ago, the Senate Republicans had the advantage. Now the Democrats will gain some midterm election points and may even prevent Kavanaugh from getting to the Supreme Court if they can strategically hold serve for about two weeks. Calling for additional FBI investigation before a committee vote on Kavanaugh might do that.

It appears unlikely that Republican senators will deny Kavanaugh the Supreme Court nomination. My prediction: If Blasey does not testify in some form, Kavanaugh will be confirmed. If she does testify, Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, will be in a tight spot.

Maybe they, with Sen. Jeff Flake, R-Arizona, and Bob Corker, R-Tennessee, will privately confer with Senate Republican leader Mitch McConnell, and the confirmation vote will be called off. Kavanaugh will be replaced, and we will start this political brawl all over again.

Regardless, the political system looks shabby.

David Webber joined the MU Political Science Department in 1986 and wrote his first column for the Missourian in 1994.

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