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What’s missing from the agenda on tomorrow’s hearing: the truth

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© Photo by Mark Wilson/Getty Images   U.S. Supreme Court nominee Judge Brett Kavanaugh leaves his home September 26, 2018 in Chevy Chase, Maryland. Kavanaugh is scheduled to appear again before the Senate Judiciary Committee on Thursday to respond to the allegation of sexual assault by accuser Christine Blasey Ford.

By Annie Linskey and Michael Levenson, The Boston Globe

No matter what happens at Thursday’s Senate Judiciary Committee hearing on President Trump’s nomination to the Supreme Court this much is clear: The damage to Brett Kavanaugh’s reputation has already been done.

If he is confirmed, he will carry a lasting stain onto the high court from the specific, lurid allegations of sexual misconduct made against him. Without any serious investigation into the truth of what happened 36 years ago, he would join Clarence Thomas as a justice with a cloud hanging over his tenure on the high court.

The Republicans refusal to permit an FBI investigation into the allegations, and the format of the Judiciary Committee hearing, virtually guarantees senators and the American public will be left with a he-said-she-said standoff without evidence.

“Those of us on the committee have to be prepared for the possibility, indeed the likelihood, that there will be no definitive answers to the very large questions before us,” Senator Jeff Flake, a Republican on the Senate Judiciary Committee, said Wednesday.

Flake, who has not said how he’ll vote on the nomination, added: “Up or down, yes or no, however this vote goes, I am confident in saying that it will forever be steeped in doubt. This doubt is the only thing of which I am confident in this process.”

Thursday’s hearing will have just two witnesses testifying: Kavanaugh and Christine Blasey Ford, the woman who made the initial allegations that Kavanaugh pinned her down and groped her in what she is describing as an attempted rape during their high school years. The committee chairman, Iowa Republican Chuck Grassley, has opted against introducing corroborating witnesses. He also has declined to delay the hearing further to air allegations from two additional women who in recent days have accused Kavanaugh of additional instances of sexual misconduct.

In a highly unusual move, the Republicans have enlisted an outside attorney, Rachel Mitchell of Arizona, to question the witnesses — which eliminates the awkward specter of having the Republican men on the panel question a woman on an alleged sexual assault. The arrangement is about optics, not substance, and could help deflect attention from an uncomfortable fact for the GOP: There is not a single woman among the 11 Republicans on the Judiciary Committee.

Democrats also face some possible political pitfalls. Of the 10 members of the committee, at least two are very actively considering a presidential run. That could incentivize members to focus more on speeches and less on questions and answers.

Even Senate majority leader Mitch McConnell, who controls the upper chamber and the process it uses, cast doubt on how useful the hearing will be.

“Does it sound like Democratic senators want to get to the truth? Or does it sound like a choreographed smear campaign?” asked McConnell, who slammed the Senate Democrats for withholding key information about Ford’s accusation for weeks.

Democrats pushed blame back on the GOP. “Senator Grassley’s office has run the most partisan and least transparent Supreme Court process in history,” said Senate Democratic leader Chuck Schumer. “No one should trust the result of this partisan exercise.”

The lingering doubts mean that if and when Kavanaugh arrives at the court, his stature will be diminished, according to court watchers. It means the court — and its decisions — will be increasingly viewed through a partisan lens. And, most of all, it means the controversy doesn’t necessarily end after a Senate vote is held.

“This fight is going to give the court a black eye, regardless of the outcome,” said Joseph Daniel Ura, a political scientist at Texas A&M University.

The court’s legitimacy, he said, depends on the public’s confidence that the normal process for a nomination has been followed and the rules have not been rigged to produce a particular outcome.

But if Kavanaugh is confirmed, the left will see him as the product of an illegitimate process in which credible accusations of sexual misconduct were not thoroughly investigated, Ura said. And if Kavanaugh is rejected or withdraws, the right will view him as the victim of an unfair, last-minute attack. He would return to one of the nation’s most important appeals courts, the US Court of Appeals for the District of Columbia.

Ura added that while Supreme Court nominations have been partisan and political for a long time, the political elite has always maintained a “veneer of concern” by expressing concern about the substance of the court’s business.

But Ura said he’s been struck by the extent to which the Kavanaugh nomination is a “continuation of a long trend of that veneer falling off and the politics of Supreme Court nomination being expressed in purely political terms.”

The fight might not end if Kavanaugh is seated: The allegations are so serious that he could face impeachment, said Kent Greenfield a law professor at Boston College who clerked for Supreme Court Justice David Souter.

“The allegations are alive. And they don’t go away because he is subject to impeachment,” Greenfield said. “The mere fact that he’s on the bench does not protect him. . . . It could be years down the road. Or someone else comes forward after he’s on the bench.”

Another possibility: regular protests in the Supreme Court chamber during sessions.

“The court is open to the public,” Greenfield said. “There’s nothing stopping people from coming in and loudly protesting every single day. . . . It’s the kind of situation where there could be massive disruption to the work of the court.”

Matthew Hall, a political scientist at the University of Notre Dame, said the Supreme Court has, historically, enjoyed greater public support than most other governmental institutions.

But that level of support, he said, has been dwindling for decades, with Robert Bork’s failed nomination in 1987 seen as a key turning point, along with the 1991 Clarence Thomas hearings, the Bush V. Gore decision in 2000, and the blocked nomination of Merrick Garland in 2016.

Research has suggested that the court has bounced back after each of those tumultuous chapters and that many Americans now understand the court to be both ideological and, simultaneously, independent and trustworthy, he said.

But Hall said the court might not recover in the same way because the political climate has changed since Anita Hill testified in 1991 on Clarence Thomas’s nomination.
© Drew Angerer/Getty Images   Senator Susan Collins was surrounded by reporters following a closed-door meeting of Senate Republicans on Wednesday.

Those hearings occurred in a very different cultural moment — before the #MeToo movement, before Harvey Weinstein and before Bill Cosby, who was sentenced to prison this week.

“There’s nothing like this in history to compare it to so even scholars of public opinion and the court would be speculating as wildly as anyone,” if they were to forecast the long-term damage that a Kavanaugh nomination could have on the court, Hall said.

The allegations threaten to impact Kavanaugh’s professional life in other ways. A group of Harvard Law School students has been pressing the school’s administration to launch their own investigation into the Kavanaugh allegations.

He is listed on the law school’s website as a lecturer and is set to teach a course on the Supreme Court in the school’s January term.

“If he’s confirmed with what seems to be a fake investigation, he won’t be teaching here without us pushing back as hard as we can,” said Jake Meiseles, one of the three Harvard Law School students who penned an op-ed The Harvard Law Record, a student publication, calling on the administration to investigate the allegations.

Michelle Deakin, a Harvard Law spokeswoman, declined to comment, citing a policy not to respond to questions on personnel matters.

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