Minutes after President Trump nominated Judge Brett Kavanaugh ’87 LAW ’90 to the Supreme Court, I published a controversial op-ed in The New York Times endorsing the nomination. I later testified in support of Kavanaugh on the final day of his confirmation hearings.  I still stand by what I have said about Kavanaugh’s uniquely impressive judicial and scholarly record over the last dozen years. But now that serious accusations have arisen about his conduct in his teenage years, I believe that these accusations deserve the best and most professional investigation possible — even if that means a brief additional delay on the ultimate vote on Judge Kavanaugh, and even if that investigatory delay imperils his confirmation.

As agonizing as this delay might be for all concerned, in the long run this additional investigation is the best way forward, not just for the Court and the country and Kavanaugh’s accusers, but also for Kavanaugh himself. If the investigation’s facts and findings support him, then he will join the Court in the sunshine and not under a cloud. If instead the investigation uncovers compelling evidence against him, President Trump should be ready with a pre-announced back-up nominee.

Because Kavanaugh has been accused of serious misconduct, he deserves to be heard as speedily as possible, and in a public forum. Of course, the strict letter of the Constitution’s Sixth Amendment does not apply because no criminal charges are pending against Kavanaugh. But the spirit of the Sixth Amendment and its underlying vision of fair play are nonetheless instructive: “The accused shall enjoy the right to a speedy and public trial” — an opportunity to tell the world as early and as emphatically as possible that he is innocent, and to directly counter the claims of his accusers.  Thursday’s scheduled Senate hearing will, in effect, be the proper opening round of this speedy and public trial, giving Kavanugh’s accusers a chance to present their evidence and then giving Kavanaugh himself a speedy and public opportunity to tell his side of the story.

But if, after this opening round, large and potentially resolvable factual questions remain (for example: who else was at the Yale party and what did they see?), there should be additional fact-finding by Senate investigators and/or the FBI, followed if necessary by one final Senate hearing.  In exchange for Senate Republicans’ willingness to reopen Pandora’s box, Senate Democrats should promise to agree to a firm end-date (say, October 5), come what may. This proposal, while somewhat similar to one endorsed by many of my Yale Law School faculty colleagues last week, differs in that (1) I favor an investigation after, not before, an initial (speedy, public) Senate hearing on this accusation, and (2) my proposal seeks to directly address Republican anxiety about an indefinitely prolonged investigation process.

Republicans might nonetheless worry that Democrats will try to find new accusers and episodes, and will then seek still more extensions to conduct ever wider investigations in an endless game of Whack-a-Mole.

Here is where President Trump’s back-up nominee would come into play. Nothing in the Constitution prevents President Trump from formally naming — this very week — his back-up candidate. (For more on this largely unnoticed point, see the May 7, 2009 op-ed that Yale Law Professor Ian Ayres ’81 LAW ’86 and I co-wrote for the Los Angeles Times.) President Obama’s thwarted pick for the Court, sixty-five year old Merrick Garland, will definitely not be Trump’s backup; but forty-six year old Judge Amy Coney Barrett could well be — a pro-life woman with an admirable life story and a short paper trail, with ideas likely to be closer to those of Antonin Scalia (for whom she clerked) than Anthony Kennedy (for whom Kavanaugh clerked). Another impressive candidate is Judge Joan Larsen, also a former Scalia clerk and a distinguished legal thinker. Other possible backups from President Trump’s announced summer short list include federal judges Thomas Hardiman, Raymond Kethledge, and Amul Thapar and Senator Mike Lee.

Background checks on the back-up nominee could begin immediately—even while Kavanaugh’s name remains under active consideration — and Senate Majority Leader Mitch McConnell is free to take the position that, even if Democrats win back the Senate in November, he will schedule the back-up nominee for a final confirmation vote during the December lame-duck session of Congress, with Republicans still in control. Such a move by McConnell would be extreme political hardball — shades of the 1801 midnight judges controversy underlying the famous 1803 case of Marbury v. Madison! — but technically permissible under the Constitution’s written rules.

Even at the conclusion of the Kavanaugh investigation, some uncertainty may still remain about what really happened long ago in alcohol-soaked encounters. On this key question, Senators and Americans everywhere must judge for themselves; as a constitutional scholar, my guess is no better than anyone else’s.  

But in my capacity as a scholar, I do seek to stress two key points about our Constitution’s letter and spirit. First, a back-up nominee could constitutionally be proposed by the president at any time and voted on by the Senate in the lame-duck session if Kavanaugh’s nomination fails. Second, the integrity of the Supreme Court itself and of our constitutional system as a whole would be better served — and so would Judge Kavanaugh himself, in the long run — if Senators authorize a full investigation before they cast their final vote on Judge Kavanaugh.

Akhil Reed Amar is a Sterling Professor of Law and Political Science at Yale. Contact him at akhil.amar@yale.edu.

  • RoseProf

    Don’t other issues concern you? What about the records that have not been provided? And potential lying under oath?

  • Jymn Parrett

    This is very weak. Witness this bit of propaganda disguised as an example of open-minded jurisprudence: “Republicans might nonetheless worry that Democrats will try to find new accusers and episodes, and will then seek still more extensions to conduct ever wider investigations in an endless game of Whack-a-Mole.” “…try to find new accusers..,” “…Wack-a-Mole”? You see where this is going. Why not just sign the article the true voice that stands behind it: “Sean Hannity?” Or, perhaps “Bill Shine?” You have to wonder about Yale and its faculty. Chua, Amar, and Rubenfeld seem to be just the tip of an elitist, monied class that has no respect for the law but pretends to represent it. In the broader view, the timid response to the accusations of racism against one of its students, Sarah Braasch, shows that Yale is hardly a place of high-minded fairness and allegiance to the law but instead one of circling the wagons to protect its privileged position.

  • Iowantwo

    All reasonable. for two sides that are negotiating in good faith. Democrats are not. For a legal scholar, you are quick to dismiss the fact that an accusation has yet to be received by the Senate Judiciary Committee. No one has signed a statement under oath to the facts, thus there are no facts to determine. Another fact, Judge Kavanaugh is innocent. Unless he is proven guilty. Very hard to do, with every named witness, refusing to corroborate the events, times. and places.

    The reasonable offer would be OK, except who ever would replace Kavanaugh, will fight exactly the same wild unsubstantiated accusations, at the eleventh hour. Democrats have found the perfect resistance method. Mostly because reasonable people like this author refuse to see reality as it has played out for the entirety of the Kavanaugh confirmation process.

    The author should be paying attention to Kavanaugh’s response to this, and learn how a principled person reacts to threats, slurs and, and attacks on his character. Rolling over for bullies never stops the real problem. The bullies desire for power over others, ie, Democrat Party

    • JohnJay60

      I think you’re missing the point. It’s not a question of whether someone has been, say, convicted of a felony and hence ineligible to vote. It’s a question of each voting Senator’s impression of character. One does not need a conviction by a jury to judge character. Have you ever, in your personal life, chosen not to use a particular realtor or lawyer because of your impression of their conduct – is it fair for the realtor you did NOT use to say “but wait, there’s no FBI record, no conviction, and you’re showing a bully’s desire for power”?

      Voting for a SCOTUS candidate is a matter of a Senator’s personal opinion and does not need a conviction. And those who choose to use this vote to express their opinion contrary to yours are not bullies. Telling a Senator they can’t draw their own conclusions is bullying. Anita Hill’s accusations showed a pattern of misbehavior that the pro-Thomas Senators were willing to overlook,and they can do the same now with Dr. Ford.

    • MmmGood

      You are 100% correct. When the Democrats dragged out accuser after accuser against Neil Gorsuch, John Roberts and Samuel Alito we had the same exact scenario. It’s so unfair to these men. So many accusers and so very little time to hear them all….Oh wait. That never happened so spare us the hysterics.

      I believe Kavanaugh did exactly what all these women allege. Look no farther than his HS yearbook. But no one except the participants know the real truth, which is why a proper investigation is necessary. That Kavanaugh has already lied shamelessly to the Committee on more than one occasion—he didn’t know Judge Kozinsky was a pervert? Everyone in that courthouse knew—does not bode well for him.

      • Iowantwo

        Believe a woman that only has one fact. the name of two men. That’s it. Not a single fact exists to corroborate her story. She names four people. All four have swore under oath that they have no recollection of the events as told by Ford.

        We have sunken very low if we are to judge persons by their writings when they were 16. Of course Fords yearbooks are off the table for discussion, because, shut up. (proffessionals have also scrubbed all of Fords social media.)

      • RMarvel

        Ford’s story about her 2nd Front Door is already falling apart, as more information comes out. She had ZERO credibility. Kavanaugh got the highest integrity rating from the ABA, which makes your opinion just that — an opinion based on pure emotion.

    • Bob H

      “Rolling over for bullies never stops the real problem. The bullies desire for power over others, ie, Democrat Party”

      No irony there at all…

  • smintheus

    “Uniquely impressive”? How phony.

  • HansC

    Professor Amar seems to be perfectly ok with Kavanaugh having had a leading hand in formulating torture policy under George W. Bush, and his “uniquely impressive judicial and scholarly record” of opposing women’s rights, workers’ rights, and environmental regulation.

    But apparently #MeToo has put the fear of G-d in him, and he is now gingerly backing away from his previous unqualified endorsement while offering all manner of helpful advice to Herr Trump regarding possible alternatives.

    Truly a Man for All Seasons..

    • ShadrachSmith

      I’ll defend Kavanaugh as a better man than you. For example Kavanaugh doesn’t snark.

      • concerned

        Nah, K would just throw a drink in your face–aka an Amy Klobuchar–’cause he’s not sexist!

  • jeromearmstrong

    “President Trump should be ready with a pre-announced back-up nominee.” Yes. Because it’s all about cramming through another conservative judge before the election. Don’t pose as an intellectual; you’re a partisan hack who only cares about projecting your minority positions onto the democracy.

  • ShadrachSmith

    Akhil Reed Amar, with friends like you, who needs enemies?

    What a total wimp job. Mitch [Senate Majority Leader] did 12 or thirteen minutes on Monday, you can watch on Cspan. Mitch did two things you didn’t. 1st, Mitch described the corruption and lies in the D charges against Kavanaugh, 2nd, Mitch promised not to bow to the Ds ugly smears of a good man.

    It took two testicles for Mitch to do that, and you did neither. The winning play for Trump is to show respect and give an opportunity to speak to all accusers, then make individual decisions about the accusers credibility, then vote.

    If you think all the women in USA are loving what the Ds are doing to Kavanaugh, you haven’t met my wife.

  • Commander of Stuff

    “Whack-a-Mole.”? So, that’s what they’re calling serious allegations of sexual assault now. Not to mention Kavanaugh’s lack of transparency.

  • Spaceman, MD

    The New York Times wasn’t interested in A Liberal’s Attempt at Damage Control? So much for bumping that love letter to Kavanaugh from the first page of your google query.

    Kavanaugh, Amar, Chua, Rubenfeld… seems like YLS has some house-cleaning to do.

  • shayaan

    we didn’t buy your endorsement then, and we don’t buy you walking it back with your tail between your legs now.

  • aaleli

    If Kavanaugh actually did what Ford sort of, but not really, remembers: jumped on her in a bed, as teens, bathing suits, (could ANYTHING be more scandalous 35 years later?)- it’s stupid, dopey, and totally irrelevant. This is all so transparent. The Dems lose at the ballot box, then fight dirty. It’s what they do.

    • OnTheOtherHand

      What IS relevant is whether the present day Kavanaugh is a truth-teller or a perjurer.

  • LeftCoastCranky

    What is abundantly clear to me after reading various opinions, reporting and impassioned for and against Kavanaugh, is that this cabal of Yale/Harvard hold on Federal Judicial and Supreme Court Judges have to be stopped. We need more diversity. Maybe some judge from a small town somewhere in America. This incestuous relationship between both these two law schools, political parties, their legal experts who are probably from these schools should be ended. We all need a break.

    The FBI should have investigated his work in the Bush White House, Judge Kavanaugh’s work there is not fully known. His questions for Ms. Lewinsky, I still have a bad taste in my mouth after reading it, was and is despicable. It was a drive by second humiliation for that young girl.

    • David Schultz

      Well said. If there is a problem with Kavenaugh, it is that we already have a person with identical background on the Supreme court with Neil Gorsuch. Neither has spent much time in fly-over country. But that list of Trump judicial appointments of course was the deal necessary to win over the Never-Trumpers dominating the Republican Party. But then again you cannot really blame water for taking the shape of the glass you pour it into. A sizable portion of America really likes being dominated by 2nd and 3rd generation Washington elites.

  • crusingourmet
    • CentralJerseyMom

      Well, I’m sure that he’ll still retain warm feelings towards his alma mater — make large donations and be available to give speeches. Or not.