Published 8:12 AM EDT Sep 18, 2018
David: Did 17-year-old Brett Kavanaugh attempt to sexually assault 15-year-old Christine Blasey Ford when they were high school students more than 30 years ago? There’s no way to know, and now a Supreme Court nomination might hinge on our ability to judge the unjudgeable.
Ford seems like a credible accuser. She’s an accomplished professional. There are no signs she is a rabid partisan. The Washington Post reports there are notes from 2012 when she first detailed the alleged assault to her husband and a therapist. She is no attention-seeker, having done her best to keep her name out of the controversy.
But from Kavanaugh’s side, how do you defend yourself from a three-decade-old accusation? That’s doubly true when the accuser isn’t even sure what year the assault took place in, let alone what day or exactly where it occurred other than a vague description of a suburban Maryland student’s house on a night when no parents were home. There’s a reason we have statutes of limitations in criminal cases.
Jill: I’m very torn on this. The misjudgments and mistakes I made in my teens are beyond counting, and I’d hope to never be judged on them. On the other hand, I’ve never been “stumbling drunk,” I don’t think I ever caused anyone enough trauma to “derail” them for several years, and I’m not trying for a lifetime seat on the Supreme Court.
Ford’s account of the entitled private-school culture in the Washington area rings true to me, as does her fear of an aggressive athlete pinning her down and stifling her screams. Plus she’s taken a polygraph.
I thought about that when I heard Kevin McAleenan, head of the Customs and Border Protection agency, talk about polygraphs in his hiring process. “We’re absolutely committed to polygraphs,” he told the USA TODAY Editorial Board on Monday. He called them “an effective tool” and “an important part of ensuring a high-integrity workforce.”
Kavanaugh has twice now denied Ford’s allegation. He called it “completely false” on Monday and said he had never done “anything like what the accuser describes — to her or to anyone.” He also said he is willing to talk to the Senate Judiciary Committee to defend his integrity, which looks like it will happen next week at a hearing with Ford. He should offer to take a polygraph. He might pass it because it didn't happen or because he truly doesn’t remember it happening. But at least we’d have that.
David: I wish a polygraph were the magic solution, but as the head of a National Academy of Sciences panel that looked into polygraphs told NPR in 2015, “My personal conclusion is it has no place in government's dealings with its citizens.” Or as the academy officially put it in disapproving of polygraphs for the purpose that Customs uses them, there are “too many loyal employees falsely judged deceptive and too many major security threats left undetected.”
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At best, we’re left with a flawed process of perhaps having Kavanaugh and Ford testify on camera under oath in front of the Senate and the FBI tracking down anybody else who may have been at that party and muscling them into testifying as well. If you care about the truth, that’s a profoundly unfair process. Kavanaugh is an experienced legal pro skilled in the high-pressure Senate confirmation process, having done it himself and prepared others for the ordeal multiple times. Ford is a teacher and researcher unaccustomed to the spotlight. If his performance receives raves and hers raises doubts, who will be surprised?
And as for those witnesses, how would the FBI ask them about what they saw or heard at a party in an unknown time and place? And, of course, everybody was drinking, which doesn’t do great things for memory. Which reminds me, Ford was sure of one thing about the party — she had only one drink. As the father of three daughters, one of whom is 15 (the same age as Ford at the time of the alleged assault), that’s a line I have a hard time believing. In any case, my bet is that polling results over the next week will have more to do with the outcome of Kavanaugh’s nomination than anything else.
Jill: Polling aside, it is worth trying to get to the bottom of this, starting with testimony from Kavanaugh and Ford. Investigators should also interview others who were at that party, Ford’s future husband (who heard about the incident from her before their 2002 marriage), the therapist who took notes on the incident in 2012, and anyone else who may have information to offer.
The Senate and the public need a fuller picture. It might well turn out to be an incomplete, inconclusive picture, with credible arguments on both sides. If that’s the case, the tie should go to Ford. Men (like Al Franken) have been drummed out of jobs for less, and women (like Anita Hill) have been ignored for long enough.
Kavanaugh presented complications even before this allegation arose. He has been involved in partisan crusades such as the Bill Clinton impeachment investigation and the 2000 presidential recount, and there are reams of potentially relevant Kavanaugh documents that Republicans are not releasing. There is also Kavanaugh’s generous attitude about protecting presidents from investigations and charges while they’re in office — raising questions about why exactly he was chosen.
There are many other solid choices on President Donald Trump’s list of possible picks. There is no entitlement to a Supreme Court seat. And there is life after a failed nomination. Just ask Merrick Garland.
David Mastio, a libertarian conservative, is the deputy editor of USA TODAY's Editorial Page. Jill Lawrence, a center-left liberal, is the commentary editor of USA TODAY. Follow them on Twitter: @DavidMastio and @JillDLawrence.