Professor Youngjae Lee wrote an op-ed for the Los Angeles Times about Brett Kavanaugh’s confirmation hearing.
The FBI investigation — satisfactory or not — into sexual assault allegations against Brett Kavanaugh is now complete and the Senate will soon start voting on the nomination.
A senator who wants to do the right thing may experience this upcoming confirmation vote as a tragic choice in either direction. Setting aside issues of temperament or possible lies to the Judiciary Committee, the conflict at its core is between two impulses. A vote to confirm Kavanaugh seems equivalent to disbelieving Christine Blasey Ford — or, perhaps worse, believing her but deciding a distant sexual assault doesn’t matter. At the same time, a vote against Kavanaugh seems to amount to destroying a person’s reputation and career by dredging up allegations of teenage misconduct.
To be sure, he would likely face a suspicious public and possibly other losses. Should he be impeached as a federal judge? Should he be invited to teach at law schools? Should he be allowed to coach girls’ basketball?
The answer to each question is: “It depends.” Each context comes with its own features, stakes and calculations. The point is that the Senate confirmation vote is about one question, and one question only; its outcome need not dictate answers to what should happen to Kavanaugh in other contexts.
A senator may believe in Kavanaugh’s innocence and still vote against him because of the circumstances of this particular vote, namely the likely impact of his confirmation on the Supreme Court and the special role it plays in our legal system. Ultimately, this vote should not be about Kavanaugh and the question of his innocence, but about the Supreme Court and its health in the future.