Brett Kavanaugh

The Senate Needs to Hear Out Kavanaugh's Accuser

A fast-moving, public airing of the claims against Kavanaugh would serve the public interest-and could help restore trust in a battered institution.


Late-breaking, detailed, and public charges of an alleged attempted sexual assault by Brett Kavanaugh may well derail his confirmation to the Supreme Court. But they also give the Senate, a legislative body that inspires little trust and confidence among American voters, a chance to start rehabilitating its image.

This current controversy underscores the problems when major institutions in public life—political parties, the media outlets they influence, Congress, the White House—are so irredeemably polarized. Even under high-trust conditions, accusations like this one would set off fires. But especially given where we are, all information is suspect and paranoia flourishes. Even the "winning" side of a conflict typically walks away with a longer set of grievances than it showed up with.

In a case such as this one—where decades have intervened since the alleged incident, where the accuser acknowledges imprecision in her recall of events, where the accused flatly denies the charge, and where all sides perceive the stakes as gargantuan—has the potential to drive confidence and trust in politics (and the media) even lower than it already is.

Which is plenty low. Pollsters agree that the long-term trend is for voters to have less and less trust and confidence in government writ large. In 1964, Pew reports, 77 percent of Americans agreed that the government would do "what's right" all or most of the time. By 2017, that figure was just 18 percent. That general decline in trust is seen across party affiliations, genders, and generations. It is broad-based and ongoing, with only modest and short-lived upticks. According to a Reuters-Ipsos poll conducted in September, just 6 percent of likely voters "strongly approve" of the job Congress is doing, while another 16 percent "somewhat approve." An Economist/YouGov poll from the same period found even lower numbers, with just 3 percent strongly approving of Congress and another 10 percent somewhat approving.

The Republicans control the process, so it is really up to them to rise to the occasion. First and foremost, the leadership should publicly state whether they think the charges if proven would disqualify Kavanaugh from further consideration. If they do, then the job of the Senate is to do their best to figure out what actually happened (no easy task, to be sure). The Senate leadership would do well in following the counsel of three senators from their own party—Alaska's Lisa Murkowski, Arizona's Jeff Flake, and Tennessee's Bob Corker—to delay the confirmation until they hear from the accuser, a research psychologist who lives in California. Ideally, any testimony and questioning would be public, to minimize concerns that things are being twisted or truncated.

From a strictly procedural and a broader institutional viewpoint, there is plenty of blame to go around. Sen. Dianne Feinstein (D–Calif.), who sits on the Senate Judiciary Committee, had the letter since July but refused even to share it with her party colleagues as recently as September 12. Feinstein said much of her concern stemmed from a request by the accuser, Christine Blasey Ford, to remain anonymous and out of the spotlight. But then how did the letter come to light, first in a whisper campaign and then in detail-starved stories in places such as The Intercept and The New Yorker? You don't have to believe the withholding of thousands of documents from Kavanaugh's time in the Bush White was "a constitutional crisis" to recognize that Republicans have hardly been on the up-and-up throughout this nomination process. Meanwhile, Sen. Kamala Harris (D–Calif.) grandstanding and calling for the cancellation of the confirmation hearings as they began and Sen. Cory Booker (D-N.J.) calling himself Spartacus and play-acting at "civil disobedience" contributed to hearings that were, in the words of Reason court-watcher Damon Root, "a circus."

The Senate Majority Leader, Kentucky's Mitch McConnell, is widely understood to be one of the most purely Machiavellian members of Congress, which doesn't inspire trust or confidence. (In this, he is not much different than his mendacious Democratic predecessor, Harry Reid.) Upon Barack Obama's election, McConnell stated that "the single most important thing we want to achieve is for President Obama to be a one-term president," which may have been honest, but is deeply troubling if you believe in anything more than the crassest form of tribal political warfare. In 2015, fellow Republican Sen. Ted Cruz (Texas) called McConnell a liar:

We know now that when the majority leader looks us in the eyes and makes an explicit commitment, that he is willing to say things that he knows are false. That has consequences for how this body operates.

All of this helps explain why Congress is held in such contempt. The people representing us are given to procedural obfuscations, partisan trickery, outright lying, and worse. Even from a libertarian perspective, it's not good when Congress' trust numbers languish in the low single digits. But those numbers stem directly from how Congress conducts itself, including an unwillingess to take any responsbility for what it does (or doesn't do). Voters have every right to be cynical, and the only thing we can blamed for is putting up with such routinely awful behavior in the pursuit of political gains. President George W. Bush famously inveighed against the "soft bigotry of low expectations." Most of us as voters are probably guilty of the soft bigotry of low expectations when it comes our elected officials. We expect the worst, so how surprised should we be when they get re-elected every time? We know where this sort of resignation leads: massive debt, massive spending, unchecked state powers, hyper-polarization, and more.

We need to demand better from the group that Mark Twain dubbed America's only native criminal class. If the Senate wants to command citizens' respect again, the next step in the Kavanaugh hearings is the perfect opportunity to put politics aside for a brief moment and rise to the level of its self-aggrandizing claim that it's the "world's greatest deliberative body."