It is depressingly easy to imagine that, once concluded, the FBI background check of Brett Kavanaugh will contain conflicting accounts of Kavanaugh’s youthful behavior, allowing undecided Republicans and Democrats take refuge in uncertainty, and confirm him to the Supreme Court.
The fact that any senators remain undecided suggests that, for at least some of them, the materials the FBI provides the Senate will be decisive factors when they vote.
There are circumstances under which I could imagine senators applying their best judgments to an ambiguous set of facts and deciding that prudence and mercy compel them to support a nominee accused of wrongdoing, or with a checkered, long-ago past.
Kavanaugh is not such a nominee. It isn’t so much that he’s forfeited the benefit of generosity—though, in his remorselessness, I think he has—than that, in an effort to conceal his public-service record and his past, he and his supporters failed to create circumstances that would make it appropriate to view his record generously.
In his case, as in every case, it’s important to consider not just what we know about him, but how we came to know it, and how he responded to new revelations. Taking this broader view, everything about the Kavanaugh pick stinks, and senators ignoring the full circumstances of his nomination are hiding like cowards from the obligations of their offices.
Set aside, for argument’s sake, the remote possibility that the FBI uncovers evidence exonerating Kavanaugh, and the less remote possibility that the evidence is actually quite damning. If witness statements are inconclusive, these senators could consider the peculiar origins and structure of the investigation. Why did Kavanaugh, GOP leaders, and the White House resist it until a losing whip count left them no other choice? Once forced to order an investigation, why did the White House attempt to control and manipulate it—to limit not just its timeframe and the alleged conduct to be investigated, but the investigative steps agents were allowed to take?
Every phase of Kavanaugh’s nomination has been similarly suspicious.
When the Federalist Society first provided President Trump a list of acceptably conservative nominees to choose from, Kavanaugh—who’d been a Republican Supreme Court shortlister for years—was inexplicably missing. Eventually his name appeared on an amended version of a list without explanation. When Trump narrowed the list, Senate Majority Leader Mitch McConnell tried to warn Trump off Kavanaugh, citing his lengthy paper trail, but Trump ignored him.
Shortly after the nomination, senior Republicans met with White House Counsel Don McGahn, and abruptly changed their position on the scope of documents they would request from Kavanaugh’s service in the George W. Bush White House. Most notably, Republicans put a partisan GOP attorney, and friend of Kavanaugh’s, in charge of document production, and requested none of the records he created when he was White House staff secretary—an extraordinarily sensitive post—which comprise the vast majority of his papers.
This all bespeaks unusually low confidence in Kavanaugh’s ability to withstand public scrutiny. Yet despite the GOP’s efforts to control and manipulate this fact finding process as well, the documents produced contain powerful evidence that Kavanaugh has serially misled the Senate since 2004—about his involvement in controversial Bush administration judicial nominations, and policies like torture and warrantless wiretapping, and his trafficking for political advantage in emails Senate Republican aides stole from Senate Democrats. A thorough review of his record could easily reveal more deceptions, if not outright perjury, but we won’t know before the Senate votes on his nomination.
Throughout the process, Republicans have ignored these deceptions, and simply stipulated that Kavanaugh is a man of integrity and distinction. When sexual assault allegations piled up, Kavanaugh used that depiction in his own defense, insisting that his youth was defined by academic and athletic achievement, religious worship, and respect for women—his drinking and occasional boorishness a sideshow. Democrats naturally questioned that self-presentation, and when evidence from his yearbook and accounts from his peers refuted it, he and Republicans scoffed at the very notion that his behavior as a young man could be relevant to anything. Democrats have objected to Kavanaugh’s place on the bench for over a decade on the basis of his history as a GOP operative. When Kavanaugh let his mask slip on Thursday by ranting incoherently about pent up anger over Trump’s election, “revenge” for “the Clintons,” and warning Democrats “what goes around, comes around,” Republicans insisted his partisan anger simply reflected fleeting passions that would never seep into his judging.
Since Trump picked Kavanaugh, Republicans’ strategic approach to getting him confirmed has been marked by consciousness of guilt. After failing to head off his nomination, they tried conceal as much unflattering information about him as possible, and have treated the unflattering information has slid through the cracks as irrelevant. If undecided senators ignore all of the evidence screaming that something is wrong here, and confirm Kavanaugh anyhow, it would be a singular failure—an admission that they never really cared about his character, or consigned us all to decades of Brett Kavanaugh for political expedience. To pass off their own accountability as elected officials to the FBI, so they can blame the bureau for missing anything that comes to light after it’s too late, would be a permanently discrediting abdication. Perhaps the most damning thing of all is that they don’t already see it that way.