On Election Day, the name of new Supreme Court Justice Brett Kavanaugh was not on any ballot, and the drama surrounding his confirmation hearings seems long ago.
But President Trump and his fellow Republicans are crowing about the “Kavanaugh effect” — a powerful political undercurrent that helped turn what could have been a deep blue Banzai Pipeline wave into something weaker. It’s not a figment of their imagination. It’s real. And it happened because Republicans successfully changed the Kavanaugh storyline from one of Democrats taking a principled stand against a powerful man to one of Democrats committed to pure character assassination.
Immigration played a big role in the Senate races, with Democrats losing deep red states where Trump whipped up hysteria over a “caravan” of poor people coming from Central America. While it generated less media attention, Trump also worked to whip up hysteria over accusations of sexual misconduct lodged against Kavanaugh. At Wednesday’s post-election press conference, the president said voters rebuked Senate Democrats for their handling of the Kavanaugh hearings by expanding the Republican Senate majority. Republican Senator Lindsey Graham of South Carolina also dubbed the outcome “Kavanaugh’s revenge.” Democrats who voted against Kavanaugh — Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Claire McCaskill of Missouri — all lost their races. Joe Manchin, the Democrat from West Virginia who voted for Kavanaugh, won reelection.
What’s the lesson? Democrats should not be bullied into abandoning the #MeToo cause. Legitimate issues were raised about Kavanaugh. But Democrats clearly underestimated the political fallout associated with raising them. Given the price to pay, they should have distanced themselves from accusers who were not properly vetted.
Christine Blasey Ford has not backed down from the searing testimony she gave on Sept. 27: that she was “100 percent” sure that Kavanaugh assaulted her while they were both high school students. I still believe her, and also believe Kavanaugh’s raging response showed a temperament ill suited for the Supreme Court.
But there are problems with other accusers. Judy Munro-Leighton, another woman who sent an e-mail to the Senate Judiciary Committee claiming that Kavanaugh and a friend “sexually assaulted and raped me in his car” has admitted that her charge was false and made “to get attention.” And on the preelection campaign trail, Trump, worked hard to conflate her accusation with Ford’s.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), has referred Munro-Leighton to the Justice Department and the FBI for potential prosecution for making false statements to the committee. Grassley also referred Julie Swetnick and her lawyer Michael Avenatti to the Justice Department to investigate charges that they conspired to fabricate accusations against Kavanaugh. Swetnick initially said Kavanaugh was involved in a gang rape at a party, but backed down from that charge during an interview with NBC. Avenatti, who maintains a combative Twitter presence, denies Grassley’s charges.
A Wall Street Journal editorial argues the Senate Judiciary referrals are important “because Democrats say they plan to keep harassing Justice Kavanaugh. They vow to reopen investigations if they win the House or Senate, and they may try to dig up more allegations without evidence. It’s important to expose and sanction accusers who lie.”
What should happen now with Kavanaugh? On one hand, he’s fair game. But for every action there is a reaction, and Democrats must be very strategic in what they pursue. With Kavanaugh, once they lost the narrative that they were standing up for women and principle, they lost the high ground forever. Relitigating Kavanaugh’s nomination to the court won’t change that. It only gives Republicans another card to play.
Meanwhile, Kavanaugh spent Election Day sending signals that he might break with fellow conservative justices on a high-profile death penalty case.
As reported by The Washington Post, the new justice joined his liberal colleagues in questioning the state of Missouri about the best way to execute a man with a rare medical condition without violating the Constitution’s ban on cruel and unusual punishment.
“Are you saying even if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?” Kavanaugh asked.
He’s swiftly writing the new narrative of who he is and what he stands for — and with that, making allegations from the confirmation hearings feel like even older news.