When I began this piece over a week ago, my thesis was simple: confirm Brett Kavanaugh ’87 LAW ’90 to the United States Supreme Court.
Kavanaugh, I wrote, was a remarkably apt candidate with glowing credentials and decades of public service. I expressed frustration with what I saw, and still believe to be, political grandstanding by Senate Democrats, who attacked originalist constitutional theory rather than weighing Kavanaugh’s judicial qualifications.
But after the surfacing of multiple claims of sexual misconduct at the hands of Kavanaugh, I believe his nomination should be withdrawn, or at the very least delayed, until the accusations can be fully investigated.
The allegations against Kavanaugh are, for lack of a better word, disturbing. In one, Kavanaugh, then in high school, is charged with drunkenly forcing himself upon a younger student at a party. In a separate incident, purportedly occurring in a Lawrance Hall suite on Old Campus, Kavanaugh inappropriately exposed himself to a fellow first-year student. I believe both accounts are credible. Both, independently, warrant a full investigation.
Responses to the accusations have been swift. Conservative pundits were quick to point out the lack of hard evidence, and liberal pundits were quick to draw parallels with Anita Hill’s testimony against Justice Clarence Thomas LAW ’74. Two years ago, when President Barack Obama was denied his constitutional right to appoint Merrick Garland to the Court, I thought partisanship in the judicial system had reached its peak. I was wrong. Once again, a Supreme Court nomination, a process imagined by the Founding Fathers as a check against politics and rhetoric, has devolved into contention and hypocrisy.
This fight, however, is a just one. It is wholly unacceptable for Congress to rush through the confirmation of a nominee facing accusations of misconduct as severe as those against Kavanaugh. No record of merit, or lifetime of public service, justifies an exemption from accountability.
The Kavanaugh controversy is demonstrative of a greater division in America. Not among Democrats or Republicans, but by generation. Perhaps the most despicable defense of Judge Kavanaugh I have read centers around his age at the time of the two incidents. Every day, I attend class with, eat with and live with other Yalies who come from every imaginable background and every variation of political views. I am confident that every one of them would call the allegations against Kavanaugh what they are – sexual assault. My generation, born before the #MeToo movement but energized through it, has moved far beyond the punditry surrounding sexual misconduct. Republican leaders don’t realize that when they dismiss sexism and harassment as “locker-room talk” or “boys being boys,” they aren’t just embarrassing themselves and compromising their morals. Rather, they are pushing an entire generation of young conservatives away from the party.
Another question many have asked is where the line is drawn between forgivable and reproachable behavior. Young people make mistakes, surely every adult need not answer for their adolescent follies. With conduct as destructive and painful as sexual misconduct, this line is especially difficult to draw.
To answer this, I find myself looking at the Court itself. In Jacobellis v. Ohio, a Supreme Court case involving the regulation of pornography, Justice Potter Stewart famously separated art from pornography by stating, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
I won’t define what conduct is forgivable and what is reproachable because, quite frankly, I can’t. But like Justice Stewart, I know it when I see it. And drunkenly cornering a young girl in a bedroom, assaulting her while a friend watches and covering her mouth as she tries to scream for help is reproachable. It is surely disqualifying from holding one of our nation’s most respected and honorable positions.
The Trump administration has almost certainly begun vetting other potential candidates should the Kavanaugh nomination fall through. It’s possible that an even more polarizing justice, like Judge Amy Coney Barrett, could replace Kavanaugh. As a Democrat who understands the consequences of a conservative Court majority, this realization is upsetting. But as an American who fears the results of the Mueller probe during a time with an eight-justice Court that is ideologically split down the middle, I can’t help but reckon with the existential threat to our democracy. Democrats who continue to block the next nominee won’t be sticking it to the Trump administration or defending liberal values. Rather, they will be setting our country up for a constitutional crisis.
Democrats will have to settle for a Republican nominated justice, but it shouldn’t be Brett Kavanaugh.
Max Obmascik is a sophomore in Trumbull College. Contact him at firstname.lastname@example.org .