Temperament, character: Kavanaugh hearings have unintended consequences

By Harlan Ullman, Arnaud de Borchgrave Distinguished Columnist
Chief Justice John G. Roberts, Jr. (R) administers the constitutional oath to Judge Brett Kavanaugh at the Supreme Court Building on Saturday in Washington D.C. Photo by Fred Schilling/UPI
Chief Justice John G. Roberts, Jr. (R) administers the constitutional oath to Judge Brett Kavanaugh at the Supreme Court Building on Saturday in Washington D.C. Photo by Fred Schilling/UPI | License Photo

Judge Brett Kavanaugh is now Supreme Court Associate Justice Brett Kavanaugh, confirmed 50-48 by a highly fractured and polarized Republican Senate. The ramifications and consequences of this confirmation will not be settled, possibly for years. How the midterm elections will be affected by this spectacle will be determined only after Nov. 6. And it is far from clear whether the allegations of sexual misconduct and the failure to corroborate those accusations will motivate more Democrats or Republicans to vote.

Sen. Susan Collins made a seemingly persuasive case as to why she voted for confirmation. Cynics will counter that this was vital to her political future given that many women were highly displeased by her decision. On the other side, retired Associate Justice John Paul Stevens observed that based on the former judge's highly emotional and often rambling testimony last week, he should be disqualified for the high court.


Then there is the issue of the truncated FBI investigation. Clearly, the White House was clever in having the FBI focus on the allegations of sexual misconduct 36 years ago that could never be fully proven or disproven. Yet, it was equally clear that the judge was dissembling when he denied excessive use of alcohol at Yale University and the likelihood that on occasions he blacked out and could not recall his actions. A number of his classmates' testimonies were convincing on that.

Given the limited time that all 100 senators had to read and fully digest the investigation, how many actually read all the materials in the hour assigned to each? One hundred hours exceeded the time between when the report was made available and Friday's vote. Senators and House members rarely read bills on which they vote. Was this any different?

A quarter-century ago, Clarence Thomas was confirmed 52-48 by a Democratically controlled Senate after a bruising battle over allegations leveled by Anita Hill on sexual harassment. Color no doubt played a major role. Given the backlash that would have arisen over failing to confirm an African-American without absolute evidence of wrongdoing, conditions then were profoundly different from today's. And Justice Thomas has remained as profoundly conservative as when he joined the court.


If Democrats win the House, regardless of whoever controls the Senate, will impeachment proceedings be initiated? Will opponents of Kavanaugh continue the effort to discredit the justice by researching his past for even more grievous examples of misbehavior?

More worrying, if evidence of presidential illegalities arise from the Mueller investigation and lead to impeachment or other legal proceedings and the case rises to the Supreme Court, how will Kavanaugh react? Critics will challenge his objectivity. Will those challenges cause the judge to recuse himself, possibly deadlocking the court 4-4 over a potential constitutional crisis?

Unlike 1991 and the Thomas hearings, a midterm election did not immediately follow. Now, Kavanaugh will be a political football. Democrats will use him to attack the president and the Republicans. Republicans will claim that Democrats ambushed the judge, potentially ruining his life. None of this makes for good politics or government.

Tragically, no outcome would have distinguished the Senate. Had the Senate rejected Kavanaugh, the president and Republicans would have been understandably outraged. That outrage could have possibly made the November elections even more volatile and nastier than they will be.

Logic, a virtue that seemingly no longer applies to American politics, would suggest that women would be sufficiently angered by the Kavanaugh confirmation to create a "blue" revolution for Democrats. However, President Donald Trump has been very successful in turning political setbacks to advantage. It is not inconceivable that Trump will rally enough support to retain Republican control of Congress in November over these hearings.


Meanwhile, the Democrats have no message except ABT -- Anyone But Trump. Prior to the Kavanaugh hearings, the Democrats seemed destined to win the House and make a good run for the Senate. Now, anyone who predicts how the election will turn out is making a lucky guess. This is the state of American politics -- incredulous but real.

A number of political ticking time bombs have been invisibly created by this hearing. But we do not know where. And worse, we do not know when or if any will explode.

Harlan Ullman has served on the Senior Advisory Group for Supreme Allied Commander Europe (2004-16) and is senior adviser at Washington, D.C.'s Atlantic Council, chairman of two private companies and principal author of the doctrine of shock and awe. A former naval person, he commanded a destroyer in the Persian Gulf and led over 150 missions and operations in Vietnam as a Swift Boat skipper. His latest book is "Anatomy of Failure: Why America Has Lost Every War It Starts." Follow him @harlankullman.

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