Alan Dershowitz: Postpone Kavanaugh confirmation until FBI can investigate accusations against him

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Brett Kavanaugh forcefully denies sexual assault allegation

Supreme Court nominee Judge Brett Kavanaugh delivers opening statement before Senate Judiciary Committee.

The Senate Judiciary Committee needs to slow down and postpone its vote on the nomination of Judge Brett Kavanaugh to the Supreme Court until the FBI can investigate accusations of sexual misconduct leveled against him by three women.

The accusers and other witnesses should be questioned by the FBI and then be summoned to testify before the Judiciary Committee. All sides have an interest in a full and thorough examination of these serious charges.

Maybe we can get closer to the truth, although that is not certain. But right now there are too many unanswered question to bring the confirmation of Kavanaugh – currently a judge on the U.S. Circuit Court of Appeals for the District of Columbia – to a vote of the Judiciary Committee as scheduled on Friday, much less to a vote of the full Senate.

In watching the riveting testimony of Professor Christine Blasey Ford and Kavanaugh Thursday before the Judiciary Committee – in which they both stated with 100 percent certainty that they were telling the truth – I was reminded of the story of the old rabbi who gave advice to quarreling married couples.

The wife began by complaining that her husband paid no attention to her, abused her, insulted her and demeaned her. After listening to her complaints the rabbi said: “My daughter, you are right.”

Then the husband complained about his wife being a bad cook, insulting and overly critical. The rabbi said: “My son, you’re right.”

The rabbi’s student assistant turned to him and said: “But rabbi, I don’t understand. They can’t possibly both be right!”

To which the rabbi responded: “My student, you’re right too.”

Is it possible that both Ford and Kavanaugh are truthfully stating what they honestly believe, but that one of them is honestly mistaken?

Ford could be mistaken about the identification of a teenage boy she barely knew about 36 years ago, despite her statement that she is certain it was a drunken Kavanaugh who shoved her onto a bed, tried unsuccessfully to take her clothes off, and put his hand over her mouth to stop her from screaming.

If Kavanaugh actually did the things Ford alleges – something he vehemently denied again Thursday – he might honestly not remember the events that Ford described, especially if he was as drunk as she says he was.

It is also possible that one of them is deliberately lying. Right now, there is no way of knowing for certain, which is why the FBI needs to talk to the judge’s accusers and others.

Realistically, it is unlikely that the Senate will proceed in the manner of a court of law, because political truth has replaced scientific truth in our highly partisan age.

It’s obvious what Kavanaugh’s motive would be in lying, but motive doesn’t necessarily establish actions.

It is less obvious what Ford’s motives might be in lying, though it is certainly possible that there are ideological or other factors that might drive her to try to keep Kavanaugh off the Supreme Court.

Because Ford has presented no corroborating evidence to back up her allegations, we can only speculate as to what – if anything – happened between her and Kavanaugh all those years ago, when both were high school students in Maryland.

So it is unlikely that objective people will be able to decide – as a matter of scientific fact – what the truth is based on what’s known at this point.

In addition to the story of the old rabbi, the great 1950 Japanese film “Rashomon” comes to mind, with its story of four people who give contradictory and self-serving accounts of a man’s murder and the rape of his wife. The film examines the meaning of truth and justice.

In theory, the Judiciary Committee and the full Senate should try as best as possible to arrive at the truth, by placing the burden of proof on the accusers – not the accused – even though it is Kavanaugh who has been nominated to the Supreme Court.

Accusations as serious as those made by Ford and others against Kavanaugh – which allege he was guilty of criminal conduct – should not stand without clear and convincing evidence of their truth in a nation where the courts presume an accused person is innocent until proven guilty. An FBI investigation might provide more evidence – either favorable or unfavorable to Kavanaugh.

Right now, the testimony of the two witnesses has created a credibility tie. Such ties are best resolved by looking at corroborating evidence. At the moment, Kavanaugh has the better of the corroborating evidence, especially the statements by the other people who were allegedly at the party where Ford claims Kavanaugh attacked her. But that could change after a full and thorough FBI investigation and further testimony.

Realistically, it is unlikely that the Senate will proceed in the manner of a court of law, because political truth has replaced scientific truth in our highly partisan age.

Kavanaugh couldn’t be stronger in his denials of every allegation of sexual misconduct made against him, saying again Thursday: “I’ve never sexually assaulted anyone.”

Unfortunately, the decision of the Senate – closely divided between 51 Republicans and 49 Democrats – will be based largely on the political dispositions of senators rather than on any desire to arrive at objective truth.

Political considerations may not be the deciding factor for a handful of senators. But they will be for the vast majority, who either plan to seek re-election or are considering running for president.

The stakes could not be higher both for senators and for our nation. If Kavanaugh fails to win a Senate confirmation vote – or if his nomination is withdrawn – his legacy, his career and his very life will be wounded beyond repair.

No matter what else the judge does in life, he will always be remembered for the accusations made against him by Ford and three other women (one anonymous) publicized around the world in the media. The anonymous fourth accusation by a mother about her daughter seems too vague to pursue.

The same is not quite true for Ford. Even if Kavanaugh is confirmed and seated on the Supreme Court, Ford’s life will go on and she will be a hero to many. That is what happened to Anita Hill, who made accusations of workplace sexual harassment against Clarence Thomas 27 years ago before he was confirmed to the Supreme Court.

Hill went on to a professorship and a distinguished career as a sought-after speaker, especially in feminist circles.

The nation will survive regardless of whether Judge Kavanaugh becomes Justice Kavanaugh. However, it is likely that President Trump will nominate an even more conservative replacement for recently retired Justice Anthony Kennedy on the Supreme Court if Kavanaugh is not confirmed.

The real danger of the whole Kavanaugh episode – even if he is narrowly confirmed after enduring harsh attacks on his integrity and honesty – will be in the willingness of others to subject themselves to this kind of a painful confirmation process for the Supreme Court and other high-level federal government positons.

The benefit may be to warn young men, especially in this age of the Internet, that what happens in high school and college doesn’t stay in high school and college.

In the end, a tough choice will have to be made by the Senate and it is likely it will be made based largely on partisan considerations. This is not America’s finest moment.