The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


A Way Out of the Kavanaugh Debacle


Before Dr. Ford's allegations about Judge Kavanaugh became public, Kavanaugh was poised to be confirmed. If Kavanaugh gets confirmed, a large percentage of the country is going to thing it was rammed through without a proper investigation of serious allegations of sexual assault. If his confirmation is voted down, an equally large percentage of the country is going to believe he was illegitimately denied a seat due to a last-minute character assassination campaign.

There is a plausible way out of this, though I don't think either side would agree to it. Democrats agree to confirm Barrett or Kethledge, the runners-up this time. This would be a good-faith show that they are really concerned about the allegations against Kavanaugh, and are not simply trying to run out the clock. Kavanaugh agrees to withdraw, with a statement from both parties that the allegations against him have not been proven. The FBI launches full investigation of all charges against Kavanaugh. Trump publicly vows that if the FBI cannot corroborate the allegations, Kavanaugh will be nominated for the next vacancy.

That the best-case scenario I can think of as far as reducing tensions go, but I'm not holding my breath, as neither side's base would be satisfied with this outcome.