When the Republican members of Congress voted in a 50-48 partisan vote to confirm Brett Kavanaugh to the Supreme Court, they obviously believed that a quick vote in favor of confirmation would quell the controversy over Kavanaugh’s nomination. The New York Times’s recent publication of an essay raising new evidence of sex-abuse allegations against Kavanaugh has dashed that hope. The article has ignited a firestorm of controversy, with even Democratic presidential candidates making it an issue.
The controversy originated when Christine Blasey Ford, a research psychologist at Stanford University, alleged that when she and Kavanaugh were in high school in 1982, he sexually assaulted her during a house party they were both attending. She alleged that he pounced on her on a bed in an upstairs bedroom, attempted to take her clothes off, and held his hand over her mouth to prevent her from screaming.
For his part, Kavanaugh heatedly and indignantly denied the allegation and claimed that it was politically motivated.
Some Kavanaugh supporters claimed that it would be unfair to punish him for what they considered was a minor incident in high school. But that really wasn’t the real issue regarding confirmation. The real issue, instead, was whether Kavanaugh had committed perjury in his confirmation hearings with respect to his sworn denials of wrongdoing.
In other words, let’s assume that Kavanaugh, from the very beginning, had acknowledged that he had done what Ford was alleging, expressed genuine remorse for it, and apologized for it. I think very few people would have supported punishing him for a grave error in judgment as a high school student 25 years ago by denying him a seat on the Supreme Court.
That’s not what happened, however. Instead, once Ford made a prima facie case establishing the assault, Kavanaugh testified under oath that the allegation was false. That immediately raised the possibility that he was committing perjury, which is a grave offense, especially for a lawyer. The last thing that any ethical and competent lawyers would want is a lawyer serving on the Supreme Court who has just recently committed perjury in an official proceeding.
Corroborating evidence
One of the points that Kavanaugh supporters and even some in the mainstream press made throughout the controversy — and are still making — is that there was no corroborating evidence to support Ford’s contention. But that simply is untrue. Ford did, in fact, provide corroborating evidence of her allegation to the confirmation committee.
Ford’s corroborating evidence was in the form of what the law calls “prior consistent statements.” I wrote about this type of corroborating evidence in my October 9, 2018, article, “Christine Ford’s Corroborating Evidence.” Therefore, I won’t repeat what I wrote there except to emphasize the point: under the law, prior consistent statements made by a complainant do constitute corroborating evidence of the allegation.
Ford’s prior consistent statements consisted of statements that she made to several people about the alleged Kavanaugh assault. Such statements dated back several years before her appearance before the confirmation committee. In fact, some of them dated back to before President Trump was even elected president.
The reason the law recognizes prior consistent statements as corroborating evidence becomes clear in the Kavanaugh controversy. Why would Ford begin making up a false story targeting Kavanaugh several years before she could possibly know that Donald Trump would be elected president and then later nominate Kavanaugh to the Supreme Court?
As I stated earlier, Ford’s prior consistent statements were delivered to the confirmation committee. They had them in hand before the confirmation vote. They either failed to recognize them as corroborating evidence because they didn’t consist of eyewitness testimony or they intentionally decided to ignore them.
What should Congress have done when faced with grave allegations and corroborating evidence to support such allegations and a sworn denial by Kavanaugh, which raised the possibility of perjury?
At that point, it was incumbent on Congress to conduct a full investigation into the matter. Rushing to a quick vote in the hope that confirmation would quell the controversy was the worst possible thing to do, including to Kavanaugh himself, who would inevitably have to serve out his term on the Supreme Court under a cloud.
Thus, it’s not just Trump and the FBI who failed America by rushing to a quick vote without a full investigation, as Democrats are claiming. It was also Congress that failed America by failing to conduct its own full investigation into the matter, which it had the power and the duty to do before granting Kavanaugh the official position he was seeking.
For example, Congress had the power to subpoena the other person in the room when the alleged assault took place and force him to testify under oath. It had the power to subpoena other people who supposedly had knowledge of any other sexual assault that Kavanaugh was alleged to have engaged in while in college. Of course, it is entirely possible that after a full investigation, Congress would have voted to confirm Kavanaugh anyway. But at least people would have been satisfied that the matter had been fully and completely investigated. Instead, by quickly rushing to a confirmation vote, people were left with a “swept under the carpet” feeling.
An exercise in futility
Moreover, in retrospect it is clear that nothing that Ford said was going to prevent the Republican members of Congress from quickly moving to a confirmation vote. Such being the case, the Republican members of Congress who invited Ford to testify had a moral duty to inform her of the irrelevancy of her testimony at the time they invited her to testify. They should have been upfront and honest with her by telling her directly, “We will let you testify, but we want you to know that nothing you are going to say is going to dissuade us from conducting a quick vote to confirm Kavanaugh to the Supreme Court.”
It’s possible that Ford would have testified anyway. But knowing that her testimony had no chance whatsoever of affecting the the outcome of the proceedings, she might well have chosen to spare herself all the aggravation that she ultimately underwent. The law holds that fraud consists not only of a misrepresentation of a fact but also the intentional failure to disclose a material fact with the intent to deceive. Looking back on the matter, it is clear that the Republican members of Congress intentionally deceived Ford by failing to inform her that her testimony, no matter what she said, had no chance of changing anything.