Below is my column in USA Today on the different outcomes possible in the ongoing Kavanaugh controversy. These scenarios have become more complex after a hearing was schedule for Monday and then Dr. Christine Blasey Ford announced that she would not appear. She has declared that the FBI must investigate her allegations of attempted rape as a condition of her testimony. What is clear is that the last minute allegation has galvanized the Democratic ranked, including Missouri Sen. Claire McCaskall. Obviously, if Ford does not show up at the hearing the GOP could use the refusal as a basis for treating the allegations as unproven and proceed to a vote on the merits. If she does show up, Kavanaugh is likely in for one of the most brutal hearings in history.
Here is the column:
Christine Blasey Ford is about to enter the political lexicon of Washington with other names that embody the cathartic scandals that define this city. Like many, she is reportedly a reluctant addition to the list with figures like Anita Hill. While she expressly asked that the Democrats not move forward with her allegations, Democratic operatives reportedly leaked her letter after Judge Brett Kavanaugh seemed set for confirmation in a matter of a couple of weeks. After the leak, Ford felt compelled to come forward and will now find herself in the center of a maelstrom of Beltway politics with a key Supreme Court seat at stake.
Ford came to the controversy willingly but anonymously. She reached out to Congress to have members consider her allegation that Kavanaugh, in high school, attempted to rape her. The alleged sexual assault occurred at a small gathering of teenagers at a Maryland home. Ford says she went to use the bathroom when she was attacked by Kavanaugh and pulled into a bedroom. She says he held his hand over her mouth as she tried to scream and tried to pull off her clothes and bathing suit. She says the assault ended when Kavanaugh’s friend, Mark Judge, jumped on top of them and knocked Kavanaugh to the floor. She says she then ran to the bathroom and locked herself in. She says that both Kavanaugh and Judge were drunk, and that she eventually fled the party.
The ‘she’ in the ‘he said, she said’ controversy
When this story broke, many of us expressed our concerns over the fairness of the last minute allegation. After all, the Democrats had this letter since July and then decided to leak the letter (against the apparent wishes of Ford) on the eve of Kavanaugh’s vote. The delay effectively ran out the clock for the Senate if the White House had to put forward a new nominee before the midterm elections. The Republicans could well lose the Senate with the House in November. Had the letter been leaked in July, the White House could have either tried to blunt the impact or replace the nominee.
Now, even if it were inclined to dump Kavanaugh, it would be hard pressed to advance another nominee in time to beat the rapidly closing calendar. Kavanaugh is its only pre-election option, and the White House appears ready to go “all in” on confirmation.
Until Sunday, this calculus was easier when the allegation was nameless and faceless. We now have a “she” in this “he said, she said” controversy. She’s willing to testify, which means that he will be expected to respond — just as Clarence Thomas was compelled to address the allegations of Anita Hill.
With the announcement that Ford will testify, Kavanaugh’s already slim majority appears to be evaporating. Sens. Susan Collins and Lisa Murkowski were already under fire for leaning toward confirmation despite their pledges to vote against an anti-Roe nominee. They and other Republicans now want to hear testimony, and it is hard to see how Kavanaugh could maintain his majority at the end of that process.There are only three ways that such hearings can play out:
The ‘A Few Good Men’ scenario
Republicans could try for “A Few Good Men” scenario that try to break Ford at the witness table like the famous “you can’t handle the truth” scene. However, Ford is not some powerful, snarling Marine general but an alleged victim of an attempted rape with an accomplished career as a university professor.
Nevertheless, they could try to impeach Ford. Republicans could question why she does not have a single contemporary witness beyond Judge, who vehemently denies the allegations. They could press her on the absence of a single friend with whom she confided or a record of seeking legal or medical assistance before 2012. They could also press her on any coordination or knowledge of the leak of the letter. Finally, they could question why the only record of her discussing the attack occurred during counseling sessions with her husband despite the fact that Kavanaugh had been much in the news with his earlier confirmation to the D.C. Circuit.
Republicans are concerned with midterm voters
The problem is that this is not a few good men but all men on the Republican side. On an all-male GOP bench on the Senate Judiciary Committee and a GOP struggling to retain dwindling numbers of women voters, the optics could not be worse. Moreover, many young women are reluctant to tell people about such attacks, and the silence of Ford is not dissimilar from other accounts in the “Me Too” movement.
‘The Caine Mutiny’ scenario
The second scenario is a type of “The Caine Mutiny” where, like Capt. Philip Francis Queeg, Kavanaugh breaks behind the witness table by appearing uncertain and paranoid. Kavanaugh has already weathered a heated confirmation hearing without a misstep and previously prepared witnesses for such hearings. But this is different.
While Republicans will likely be reluctant to hammer Ford, the Democrats will have no such hesitation with Kavanaugh, who will be asked about underage drinking and relations in high school. His friend, Mark Judge, has written a book that describes drunken out-of-control parties and describes himself as essentially a blackout drunk during this period.
A tie scenario
The third option is no better for Kavanaugh. This cannot end in a tie. Either Ford has to be discredited, or the matter is left to credibility judgments. The public is likely to find Ford’s account more compelling, particularly if Republicans are leery of pressing her account or veracity. As in trial, there is no half-way option in seeking to impeach a witness alleging sexual assault. Either she is a liar or a victim. If you leave it somewhere in the middle with a jury, your client is likely to be found guilty.
In the end, Kavanaugh could be looking at a considerable challenge toward confirmation. He is relying on politicians who are already looking over his shoulder at the approaching midterm elections. It is their demise, not his, that they are worried about. Kavanaugh does not want to find himself in the balance between a senator’s future and his own. But that is precisely where this could be heading.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley