The Editors: It is time for the Kavanaugh nomination to be withdrawn

 (CNS photo/Jim Bourg, pool via Reuters)

Editors' note (Oct. 2, 6:00 pm): Our editor in chief, Father Matt Malone, S.J., has responded, in his regular column, to many of our readers’ reactions to and questions about this editorial.

Dr. Christine Blasey Ford’s testimony before the Senate Judiciary Committee today clearly demonstrated both the seriousness of her allegation of assault by Judge Brett M. Kavanaugh and the stakes of this question for the whole country. Judge Kavanaugh denied the accusation and emphasized in his testimony that the opposition of Democratic senators to his nomination and their consequent willingness to attack him was established long before Dr. Blasey’s allegation was known.

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Evaluating the credibility of these competing accounts is a question about which people of good will can and do disagree. The editors of this review have no special insight into who is telling the truth. If Dr. Blasey’s allegation is true, the assault and Judge Kavanaugh’s denial of it mean that he should not be seated on the U.S. Supreme Court. But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

The nomination of Judge Kavanaugh has become a referendum on how to address allegations of sexual assault.

If this were a question of establishing Judge Kavanaugh’s legal or moral responsibility for the assault described by Dr. Blasey, then far more stringent standards of proof would apply. His presumption of innocence might settle the matter in his favor, absent further investigation and new evidence. But the question is not solely about Judge Kavanaugh’s responsibility, nor is it any longer primarily about his qualifications. Rather it is about the prudence of his nomination and potential confirmation. In addition to being a fight over policy issues, which it already was, his nomination has also become a referendum on how to address allegations of sexual assault.

Somewhere in the distant past, at least before the word “Borked” was coined to describe a Supreme Court nomination defeated by ideological opposition, Senate confirmation hearings might have focused on evaluating a nominee’s judicial character or qualifications as a legal thinker. But that time is long past. Many cases decided by the Supreme Court itself and thus also presidential nominations to that body (and the Senate hearings that follow) are now thoroughly engaged in deciding “policy by other means.” Neither the country nor the court is well served by this arrangement, but refusing to recognize it does nothing to help reverse it.

When Republican leaders in the Senate refused even to hold hearings on the nomination of Judge Merrick Garland, they were not objecting to his qualifications or character but to the likely outcome of his vote on the court were he to be confirmed. When Senate Democrats were mostly united in opposition to Judge Kavanaugh well in advance of any hearings (and before any rumor of Dr. Blasey’s accusation was known), they were using the same calculus. While regrettable in both cases, such results are, as we have said before, the predictable outcome of the fact that “fundamental questions of social policy are increasingly referred to the court for adjudication as constitutional issues.”

What is different this time is that this nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court. It now involves the symbolic meaning of his nomination and confirmation in the #MeToo era. The hearings and the committee’s deliberations are now also a bellwether of the way the country treats women when their reports of harassment, assault and abuse threaten to derail the careers of powerful men.

This nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court.

While nomination hearings are far from the best venue to deal with such issues, the question is sufficiently important that it is prudent to recognize it as determinative at this point. Dr. Blasey's accusations have neither been fully investigated nor been proven to a legal standard, but neither have they been conclusively disproved or shown to be less than credible. Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability. The best of the bad resolutions available in this dilemma is for Judge Kavanaugh’s nomination to be withdrawn.

If Senate Republicans proceed with his nomination, they will be prioritizing policy aims over a woman’s report of an assault. Were he to be confirmed without this allegation being firmly disproved, it would hang over his future decisions on the Supreme Court for decades and further divide the country. Even if one thinks that Dr. Blasey's allegations are not credible, demonstrating them not to be would require further investigations and testimony. This would include calling additional witnesses and assessing further allegations against Judge Kavanaugh from other women, to which Republicans on the committee have been unwilling to commit and which would be divisive in any case.

The best of the bad resolutions available in this dilemma is for Judge Kavanaugh’s nomination to be withdrawn.

There are many good reasons to support the nomination of a qualified judge who is committed to a textualist interpretation of the Constitution to the Supreme Court. Over time, such an approach may return the question of abortion to the states, where it belongs given the Constitution’s silence on the matter, and where a more just and moral outcome than is currently possible under Roe v. Wade may be achieved. Restoring such a morally complex question to the deliberation of legislators rather than judges may also bring the country closer to a time when confirmation hearings can truly focus on the character and qualifications of the nominee rather than serving as proxy battles over every contentious issue in U.S. politics.

We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
J Cosgrove
2 months 3 weeks ago

And let incivility, character assassination and bad faith win. No!

Quote - there is still no evidence aside from her own testimony supporting her claim. There is abundant evidence casting doubt on her account. Those are the facts. Quote - ABC News has been unable to corroborate the allegations. Apparently the editors do not need corroboration.

Dionys Murphy
2 months 3 weeks ago

A person who dances around questions and can't give a straight answer to basic questions, or who dodges questions by bringing up unrelated propaganda about themselves has no place on the supreme court.

There was no bad faith, no character assassination and there was incivility on both sides of the aisle. No one wins if he is placed on the court.

Deb Harris
2 months 3 weeks ago

Clearly, you didn't watch the hearing. Ford has no evidence, she was coached for 10 days on how to look pathetic. She got only softball questions. Nothing new was learned by giving her all that delay time and her chance to tell her story. The Democrats crafted this whole ordeal. They made it clear when he was first chosen they would do ANYTHING to stop him. The delay gave the MSM over a week to plaster their accusations of Kavanaugh being a sex offender when there wasn't and still isn't any evidence that that is true. IF he is not confirmed EVERYONE loses. That would set a precedent that if you cry and tell a good story accusing someone of a sex crime. NO EVIDENCE IS NEEDED.

Vince Solis
2 months 3 weeks ago

He watched the hearing... he just can't hear.

renegade runner
2 months 2 weeks ago

Perhaps you and Deb need to work on your comprehension skills. Ms. Ford was very convincing in her testimony.

Charles Yarbrough
2 months 2 weeks ago

You do know that she lied throughout? 1) Fear of flying so that she could not testify on Monday...Lied...she flies everywhere; 2) She claimed that she was a "psychologist" when she has NEVER been licensed by ANY state and her mere claim is a violation under California Law; 3) She claimed that no one could hear her screams because the music was too loud yet she could hear people on the stairs and their laughter...This is just the tip of the ice berg...Senator "I lied about my war service" Blumenthal stated to Kavanaugh that if you lie in one thing you lie in all things, so I guess according to his own definition, Ford lied in her entire testimony. Never mind the FACT that the 4 individuals whom SHE named, denied it occurred. We have certainly turned a huge corner in this country when a mere accusation without ANY corroborating evidence destroys a man's family and reputation. The fact that Feinstein held this information for 2 months until the hearings had been concluded tells you all you need to know that this is all about delaying this until the midterms...For the Catholic review to make these statements is quite ironic since the RCC is the poster child for sexual abuse...quite rich...

Linda Blakely
2 months 2 weeks ago

If Ford was performing, then she should get an Oscar.

lurline jennings
2 months 2 weeks ago

This investigation will not hurt Judge Kavanaugh. He will be shown to be free of the unsubstantiated allegations by a sick woman. Her husband pointed that out. The big loser will be America Magazine and other Jesuit organizations. We have removed our considerable support. We thought the motto AMGD applied to all. Just like innocent until proven guilty guess the Jesuits no longer seek truth only a political move. Jesuits your founder would not like what you have done to an innocent person. Just persecution on unsubstantiated allegation. We thought you would be better than to stoop so low. This one is really a low blow and I feel very sorry for my two sons who are Jesuit Priests but who are giving deep thought and prayer on leaving the community.

John DeRuntz
2 months 2 weeks ago

Well said.

Bonnie Weissman
2 months 2 weeks ago

Totally agree.

John Trapp
2 months 2 weeks ago

Deb, you are trying to reason with people who have absolutely no concept whatsoever as to what the word "evidence" means.

Timothy Jeffries
2 months 3 weeks ago

Maybe you should look in you own back yard before you start judging people that have been accused of a crime with no evidence or corroboration. You are nothing but scared of looking bad to the #metoo movement and should be ashamed

Vince Solis
2 months 3 weeks ago

You are the only one dancing... with Feinstein and Schumer. If you can't understand who has what at stake here (Dr. Ford and her research with mifepristone and the Progressive Left with legislating from the court by judicial fiat), then you have lost your objectivity or have none to begin with.

Richard Nikkel
2 months 2 weeks ago

How do you propose he disprove an uncorroborated event. No character assassination, when was the last time being accused of being an attempted rapist was placed on your job resume

Paul Jones
2 months 2 weeks ago

The only one who danced around was ford

Kath Urb
2 months 2 weeks ago

Really I saw a lot of dancing on Ford side. 5 minute increments. He said 'I WILL DO WHATEVER THE COMMITTEE WANTS TO DO' She says to Mitchell "If YOU could find out when MJ worked at Potomac Safeway I COULD BETTER GIVE YOU A TIME LINE TO REFRESH MY MEMORY" REALLY?

Another classic moment Lawyers cut her mic several times when she kept saying "I don't remember, I don't understand" Lawyers had to guide her to her statements of what she said/didn't say....Lawyers had to POINT out on a map what they were talking about.

TM Lutas
2 months 2 weeks ago

If a Senator receives an accusation, it is not appropriate to sit on it, springing it at the last minute, unless you think it is not credible, at which point you should say so.

Sen. Feinstein sat on the accusation and then backed it. This is more than incivility, it is a bad faith approach to the confirmation process and an attempt to sandbag the nominee, and the rest of the committee (both Democratic and Republican members).

The editors should be knowledgeable enough about confirmation procedure to understand this but they do not mention the issue in their editorial. That is unfortunate as it leads to a distorted optic of the issues at hand that does not serve the Church well in the role it should play, honest broker pointing out what is right without partisanship.

Daniel Silvan
2 months 2 weeks ago

I agree with you. Luckily, "Dr." Ford is not running for the Supreme court.

Nikato Muirhead
2 months 2 weeks ago

Dancing around questions is precisely what is done at these hearings. The Senators attempt to probe to get answers to how a candidate will rule on specific issues and upcoming cases. The candidate must dodge and work around those questions, or outright refuse to answer. The difference here is that he is being asked about unfounded allegations. The FBI report has verified no corroboration. Essentially it says that she lied. She may well have been assaulted, but not by Kavanaugh.

lurline jennings
2 months 3 weeks ago

You are so right. One woman with questionable, uncorroborated allegations has ruined a good man and has hurt his family forever. Wait until the truth is out and we find who has paid for this circus as usual the democrats need to lie and cheat to win. He will be nominated. He is a follower of a just God.

Dionys Murphy
2 months 3 weeks ago

A "good man" doesn't refuse to answer questions and dance around questions. A "good man" doesn't decline an investigation that he has said will be sure to show his innocence. A "good man" doesn't continue to lie about his behavior over and over with multiple sources contradicting him. Calling him a "follower of a just God" is disgusting. Rapists, those who sexually assault, those who lie or twist the truth as he has done are following nothing but their own ego. Shame on you.

Robert Lewis
2 months 3 weeks ago

Not only that: it is preposterous to say that Judge Kavenaugh's life is "ruined forever." If his nomination is withdrawn, he will still serve in the federal judiciary, and he will still live in great material comfort. Moreover, if he were a true patriot he would, in the best interests of the vital work that the Supreme Court does for the country, withdraw his nomination from consideration, because, even if he is absolutely innocent of these charges, his presence on the Court now would cast the shadow of doubt and disreputability on any and all decisions relating to women. For the good of the country--which is of greater moment than one man's career--this nomination must, indeed, be withdrawn. However, I should add that if he had confessed any--even a slight--measure of responsibility for abusing or disrespecting women during his adolescence, and not claimed to be, instead, a perfect angel, I'd not favor withdrawal. Everybody knows what a sexist and chauvinist milieu prevailed in elite all-boys' schools in the posh suburbs of Washington, D.C., during the latter half of the last century. I certainly do!

Deb Harris
2 months 2 weeks ago

You are sick, Robert! Preposterous you say?? Yeah, you self-serving despicable lefties are hoping everyone will think he can't be appointed now for fear of a shadow on the court, now that you have damaged the man and his family intentionally for political reasons. He and his family have been marked for life, thanks to people who think they can qualify their sins by using rhetoric minimizing the damage they have perpetrated on an innocent man. I hope the FBI will shed light on the dirty deads of the Dems on this one. That was the plan setting up 3 sham accusers that didn't have cases. Just bash him in the press while there is one delay after another. Crucify him in the court of public opinion. Who knows, perhaps the FBI is in on it too. THey've been after Trump since he was elected. At some point, what goes around comes around. Those of us striving to act with morals and ethics will not have to worry as God knows all our hearts. I'd be worried if I were you...

KATHERIN MARSH
2 months 3 weeks ago

I was not certain of Kavanaugh when I read his bio after he was named to the Supreme Court. I was even a little suspicious when the Editors supported him. Today after hearing his testimony, he has my vote. He walked a very fine line. At every turn there was a possibility of slandering someone or dragging someone else into the fray. Kavanaugh was real. He was honest. It was not a court of law. It was a Kangaroo Court. And through it Kavanaugh has integrity. He even stopped a Senator who started to walk into slander. There were many reputations on the line today. Kavanaugh is not a wordsmith, he is a great lawyer.

J. Criquette
2 months 3 weeks ago

And what about Dr. Ford's integrity and reputation?

Citizen Charles
2 months 3 weeks ago

Ford's claims have been unequivocally refuted by every single witness she claims was at the party, even her best friend. She says she remembers having only one beer but can't remember where the party was or how she got home. She says she screamed and nobody could hear, but she could hear the boys having a "conversation and laughing" downstairs from inside the bathroom. She says she was afraid to fly to Washington to testify, but has flown all over the world every year including the east coast annually for decades.
She has by her own admission lifelong neurosis, anxiety, relationship problems, and PTSD which she claims is related solely to a clothes-on sexual aggression as a teen. This is not the pattern of impaired memory touted by Democrats in cases of sexual abuse. Memory lapses and gaps are found when a woman is repeatedly abused in a "trapped" environment and when there is little emotional or intellectual defense mechanism available. This is not the case with a single incident, in a country club girl, with a PhD intellect, supported by husband and friends, who has extensive psychological training. She attended the Woman's March against Trump and has been a signatory critic to Trump immigration policy. She admits coming forward to prevent the nomination. She had an attorney an lie detector done before she allowed her allegations to become public and does not know who is paying her way.
Think about it. Do you think you would ever forget where you were and the circumstances if this happened to you? Don't you think you would know who is paying your bill? If you made such a claim don't you think your would have corroboration by at least one witness that such a party even happened? Ford has a confused psyche, a political motivation, and has allowed herself to be the pawn of calculating Democrats. She has destroyed her own integrity and reputation.

Ellen B
2 months 3 weeks ago

Every single witness? The other guy in the room, Mike Judge refused to testify & went into hiding. That's not refuting. Supposedly he also wrote a book that covered how wasted he was in high school, with many blackouts.

And as for questions not asked, why was St Brett's good friend Ed Whelan looking at her LinkedIn profile before her name was released to the public?

Marie Smith
2 months 2 weeks ago

Stop perpetuating these Republican lies, or look up what refuted means. The people who were there said they don't remember. That is different from saying that it didn't happen. One of them even said that although she does not recall the party, she believes Ford. Get your facts and vocabulary straight.

C Walter Mattingly
2 months 2 weeks ago

Perhaps he heard that both Kavanaugh and his family as well as Ford have had death threats against them and doesn't want to experience the same. But now he's agreed to speak (in apparent safety) to the FBI this week.

Hilary Sterne
2 months 2 weeks ago

That’s not true. Not a single person but the assaulter and his accomplice has refuted her story. The others say the simply don’t remember being at the party. Please get your facts straight.

Neal Mcelroy
2 months 3 weeks ago

Remember This: Everything Ford Alleges Remains Uncorroborated
And at the end of it, none of it will have been corroborated. Not a single bit of Dr. Ford’s allegations to this day have been corroborated. From the beginning of this, every allegation she made has been uncorroborated. The Democrats, the media even tried to play a trick with that this week by saying, “Well, there’s affidavits from four people who she told the story to. Four people have corroborated what happened!” No, they didn’t “corroborate what happened.” They corroborated that she told them what happened.
There isn’t any corroboration for this whatsoever, and there isn’t going to be.
*There will be backlash - November is looking better and better.
Liberals must be defeated not convinced

Deb Harris
2 months 2 weeks ago

Well said Neal!

Linda Blakely
2 months 2 weeks ago

Maybe it will be corroborated when Mark Judge comes out of hiding.

Tony Miller
2 months 3 weeks ago

I believe she was telling the truth as she understood it also. I don't believe anyone (including Judge Kavanaugh) accused her of lying or having ulterior motives.

Vince Solis
2 months 2 weeks ago

I don't think you want to go there. because of #MeToo, Republicans have put the kabash on challenging her reputation (and the mainstream media would never report on it as it would destroy their narrative). But my understanding is that there may be some issues regarding her past, and perhaps showing some mercy here is the high road. Do you really want the usual mud-slinging? because there is mud available.

Deb Harris
2 months 2 weeks ago

J. Criquette, She has been treated with kid gloves. I don't know if she is mentally ill or just another evil Democrat but she has done nothing to deserve the special treatment she is receiving while she is ruining a family of good people. Nothing she has claimed has any veracity or supportive evidence. There's something very wrong with her receiving $700,000 to make her baseless claims.

Mark Wordsworth
2 months 3 weeks ago

He didn't decline an investigation. He said he would do whatever the committee wanted. The committee declined an investigation because of timing and that the people all already submitted comments that were all already available. Even if the FBI investigated it still wouldn't change the fact that there is no proof of Dr. Ford's claims. None of the people she claimed were there could corroborate what she claimed happened.

thstonebooks@gmail.com
2 months 3 weeks ago

He could have pressed for an fbi investigation. The gop advisedhim not to and blocked it bc they don’t want to risk the midterms and not getting the numbers they need for confirming him bc they might lose the senate. If he was so certain of his innocence and that he deserved a seat on scotus, despite political pressures he SHOULD press for an fbi investigation to clear his name. Regardless of anything else this shows he is a pawn to the gop machine and doesn’t deserve to be on scotus

Neal Mcelroy
2 months 3 weeks ago

With the evidence Dr. Ford provided, which is none, you couldn't get a warrant.
what's there to investigate?
Here, maybe she would say something like this.
“It was 35 years, 34 years. I’m not sure where. But I know that when I was 15, I was at a party, and some guy jumped on top of me.”
So let’s say the FBI agent decides to actually take this further and in a very respectful way says, “Well, Miss, were you raped or injured?”
“Uh, no, not really.”
“Did you report this or tell anyone at the time, 36, 35 years ago?”
“Uh, no.”
“What year was this, again, that this happened?”
“Uhhh, I’m not — I’m not sure. I think it was 1982.”
“Where did this happen?”
“I don’t know! I don’t know. I was so traumatized; I don’t remember any of it. I just remember some guy jumping on me and I was drunk and — and I don’t know. But I want you to investigate it.”
“Okay. Ma’am, were there any witnesses?”
“Just the one friend of his that pushed him off, and then they left before he could do anything.”
Do you think if somebody shows up at an FBI office with that story, if they show up in person with that story, that the FBI is gonna give it any time whatsoever? The agents are gonna look at each other with kind of wary eyes and they’re gonna crack silent jokes to one another. I’m not kidding. You take this out of the realm of a letter to a crazed, partisan United States senator, Dianne Feinstein, and just move this into the victim walking into an FBI office.
There will be backlash. November is looking better and better. Thank you democrats.
Liberals must be defeated not convinced

Ellen B
2 months 3 weeks ago

Let's not pretend that he couldn't have asked for an investigation. The FBI investigation of Clarence Thomas took a three days! Sure.... timing was an issue. They didn't want an investigation, they never released all the documents on him because they are worried what might be found.

Ivonne De La Rosa
2 months 3 weeks ago

It must be a fantastic thing to have absolute knowledge of the truth; a truth that has not been proven, that has no way of been confirmed. He explicitly said he would do what the committee decides to do, I did not hear him at any time say NO to an investigation. He has been investigated multiple times- now tell me What will day investigate? She does not remember the day, the house, and the people she herself said where there deny any knowledge of this happening. No source has come out to contradict his statements multiple have come out to deny the sequence of events Ms Ford has put forward. I also find it interesting that YOU have decided he is not a Godly man, obviously, you have information that is not available to the rest of us, please share it , because nothing has been proven and it still remains she said, he said. In a court of law, this case would be thrown out because there is no proof and no way of confirming the statements made. Once again if you have knowledge of something not yet made public bring it forth and lets hear it.

JOHN GRONDELSKI
2 months 3 weeks ago

A "good man" does not ask for his name to be proven innocent; he knows what he did, and expects his word to be at least as believable as the claims of those who would detract (or calumniate) it.

Dorothy Cohen
2 months 3 weeks ago

He didn't decline the first six. Biden said an FBI investigation was not the way to go when the dirtbag Republicans wanted to open an investigation into Anita Hill during the Thomas Hearings. And as a sexual assault survivor at the age of 13 I agree. So I ask you, why the reverence still for Bill Clinton? On the campaign trail in the early part of 2016, a reporter as Hillary as a voice of women's rights if she believed all women who came out as a victim of sexual assault. She said "Of course". The reporter followed up with "Then why don't you believe Bill's accusers,"to which see replied except them. They have no credibility. So what is it? Do we pick and choose which women we believe? What about innocent before being proved guilty? Why is Dr. Ford a credible witness (she was) but those other women aren't and are dismissed out of hand. The answer is that its all about politics and power. I felt awful for the protestor and the young woman yelling at Jeff Flaked. They are being duped into thinking any of them care about her assault

Stephen French
2 months 3 weeks ago

None but a complete fool will answer gotcha questions designed to.make his confirmation vote occur sometime in 2019. Also, the third time one is asked if they get black out drunk is at least irritating; a SCOTUS justice should not suffer fools gladly.

Vince Solis
2 months 3 weeks ago

Rapists and sex offenders often seek power over their victims (female victims in the case of heterosexual behavior). Judge Kavanaugh, by virtue of promoting female law clerks has empowered them, granted them opportunities that may have not had elsewhere. Many have gone on to fulfilling careers. Doesn't sound like someone who seeks to keep females "under control". And he even admitted that (Judge) mom was a genesis for this. From this perspective, the allegations appear ludicrous (which they are).

Deb Harris
2 months 2 weeks ago

Vince, Stephen, John and Ivonne, well reasoned posts

Deb Harris
2 months 2 weeks ago

Shame on you for your out and out lies and misinformation. He did not lie or spin, he answered every question, you call anything you don't want to know a lie. Ford, on the other hand, all kinds of underhanded shenanigans by Democrats... setting this all up was premeditated contrived character assassination.

lurline jennings
2 months 2 weeks ago

Dionys: Well now are you satisfied with the examinations? You will never be satisfied because you lost in the presidential election and now you have lost in the nomination of our new Supreme Court Justice.. There is a just God and you can see his work in action. Now you can sit down on your hearth and rent your sackcloth and rub yourself down in ashes. Learn the motto of the former "real" Jesuits...AMDG....

James Michael Torcivia, Ph.D.
2 months 3 weeks ago

The judiciary committee blocked all attempts at corroboration
by blocking any credible investigation into the charges.
Kavanaugh had merely to requested an FBI investigation and a polygraph test to resolve doubt.
Hiding behind Grassley's obstinate he feigned sincere indignation.
He fools no one.
Still, he has a pretty good shot at getting away with the ruse.
Pity.
^

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