Judge Brett Kavanaugh’s Nomination to the United States Supreme Court in Light of the Late (And I Do Mean Late) Allegation Against Him: If It Appears to Be An 11th-Hour Suprise . . .
By Ken K. Gourdin
If it needs to be said, sexual assault is deplorable. Anyone who commits it should be prosecuted to the fullest extent allowed by the criminal law, and perhaps, also should be made to answer for it in civil court. Generally speaking, its victims deserve full, fair hearings at which they may be heard properly. That said, I must ask District of Columbia Appeals Court Judge (and United States Supreme Court nominee) Brett Kavanaugh’s accuser, not, “Why?”, but, rather, “Why now?”
Of course, avenues of civil suit and criminal prosecution by Judge Kavanaugh’s accuser are foreclosed by the applicable statutes of limitations—and for good reason. When it comes to civil suit and criminal prosecution, allegations such as the one Judge Kavanaugh now faces should not be allowed to hang over the head of an accused indefinitely, like a Sword of Damocles. Would that similar rules applied in the United States Senate to advise and consent proceedings regarding Presidential nominees and in the court of public opinion, alas!
I don’t know Judge Kavanaugh. I don’t know his accuser. I don’t know any of the scores of people—including any of the women—who have risen to Judge Kavanaugh’s defense in light of the allegations against him of sexual assault during a night of drunken debauchery at a party at which Kavanaugh allegedly attacked the woman who (finally!) has come forward. I don’t know: perhaps the then-high-school age Brett Kavanaugh was a hedonistic horn-dog and party boy who since has been reformed. (He wouldn’t be the first.)
But why do I have this inescapable, nagging suspicion that if it walks like an 11th-hour surprise, and talks like an 11th-hour surprise, and looks like an 11th-hour surprise, and smells like an 11th-hour surprise, it is difficult to not conclude that, Yep! Sure enough! It’s an 11th-hour surprise! (Come on, now, everybody in unison: “Surpriiiiise!”) And it’s not as though Senate Democrats have never attempted to employ similar tactics against Republican Supreme Court nominees before (see Thomas, Justice Clarence).
Why else would Judge Kavanaugh’s accuser take a lie detector test—months ago? Why else would Senator Dianne Feinstein (D – California) sit on the letter she received from Judge Kavanaugh’s accuser for months? Why else would Judge Kavanaugh’s accuser—along with her therapist—sit on the information that the former revealed to the latter all the way back in 2012? More generally, I have to wonder, why are so many nominees to the Court by Democrats confirmed with little opposition (with “Yea” votes in the high nineties and “Nay” votes in the single-digits) while so many nominees to the Court by Republicans are lucky to be confirmed by bare majorities?
Yes, accusers who have come forward as a result of the #Metoo movement should have their cases heard in the court of public opinion and, where applicable, in a court of law. But here’s the problem with the #Metoo movement. Yes, anyone who has a serious, specific proposal for how cases of sexual harassment and sexual assault should be dealt with deserves serious consideration.
That said, in some ways, #Metoo seems to have less in common with a genuine reform movement than it does with, say, a case of moral panic or with the Salem Witchcraft Trials: Too often, the mere, bare allegation serves as its own evidence. And why do I suspect that, in the eyes of his detractors, the mere allegation against Judge Kavanaugh is sufficient to disqualify him? (Full disclosure: An ancestor of mine was convicted of witchcraft at the Salem Witchcraft Trials.)
As a very sage soul once said, “Timing is everything.” Perhaps the confluence of all of these circumstances really is simply one of history’s most amazing coincidences. Or, on the other hand, perhaps this is an incredibly judicious instance of Judge Kavanaugh’s accuser and her allies biding their time, keeping their powder dry until it comes in most handy—like, say, right before a Senate confirmation hearing which would elevate Judge Kavanaugh to the nation’s highest court.
I know, I know: I shouldn’t be so suspicious, but . . .