What if President Hillary Clinton had nominated a Judge Brett Kavanaugh?
Food for thought
Jeffrey Denny
Whatever the outcome of Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court — Senate confirmation now seems certain — let’s imagine if the partisan shoes were on the other feet:
1.Let’s say President Hillary Clinton picked a highly qualified, widely respected jurist for the Supreme Court. Her nominee would tip the court definitively to the left after Clinton quickly won her first nominee, now Justice Merrick Garland.
2.The U.S. Senate had a slim Democratic majority. The Senate Judiciary Committee, chaired by Diane Feinstein (CA), held confirmation hearings for Clinton’s nominee. The hearings went fine, even though Republican members, Fox News and other right-wing media raised serious questions about the nominee’s liberal judicial record.
3. Committee Democrats ignored the opposition and prepared to vote the nominee to the Senate floor for almost certain confirmation.
4. Suddenly, a woman emerged from the nominee’s past, a conservative who incidentally disliked Clinton and had voted for Donald Trump. She claimed Clinton’s nominee had sexually assaulted her at a party when both were teens.
It was a painful decision for the woman to come forward. But she felt the need to do civic duty and tell her story, even if she came under almost certain attack.
5. Under extreme political, media and social media pressure, the Senate Judiciary Committee decided to hold another hearing so the woman and the nominee could tell their sides of the story, in public, under oath.
6. Meanwhile, other conservative women, and old classmates and friends of the nominee, also came forth with stories about his youthful misbehavior, alleging heavy drinking, alcohol-fueled rowdiness and #MeToo incidents.
7. Social media was going berserk. Conservatives cheered the woman, jeered Clinton’s nominee, and sneered at the Democrats for feminist #MeToo hypocrisy. They thrilled to note how the president had doubted and bashed Bill Clinton’s accusers 20 years ago.
Liberals were torn. They were suspicious that it was a Republican setup to smear the nominee and undermine the president. But they were reluctant to fully defend the nominee or doubt the woman, let alone criticize her.
8. At the Judiciary Committee hearing, the woman delivered clear, calm, measured and precise testimony. Even President Clinton at first said her allegations were supported by “credible” and “compelling” evidence (though later at a rally Clinton mocked the woman’s testimony).
Many committee Democrats also found the woman believable. Most went easy on her except for one liberal who lost his temper and went on a sustained rant.
9.In his testimony, Clinton’s nominee, in stark contrast to his accuser, at several points became angry, beet-faced, combative and condescending. He denied all allegations, 100 percent. He raised his voice. He lectured and sassed the Republicans. He said, yes, he liked beer — didn’t they? — and maybe he partied hard back then like all teens do. But he never “blacked out” and couldn’t remember what he did the night before. He pointed out that he went to Yale.
Committee Republicans were taken aback by the nominee’s behavior. He was not even-keeled, objective and judicious like most Supreme Court nominees and justices are.
He also wasn’t above partisanship — to the contrary, he denounced the Republicans for their “calculated and orchestrated political hit” and “grotesque and coordinated character assassination” to avenge Trump’s 2016 electoral defeat.
Notably, while the nominee’s accuser had taken and passed a polygraph test, Clinton’s nominee refused, saying such tests were “not reliable.”
(However, just two years prior as a federal appellate judge, the nominee had written the court’s opinion that polygraphs are “an important law enforcement tool that can help investigators “test the credibility of witnesses,” as a Harvard law professor pointed out.)
10.Social media fury escalated, especially among conservatives who believed the woman 100 percent, while being 100 percent certain the nominee was lying, especially about the hard drinking.
Conservatives called liberals shameless hypocrites. Many were outraged by the Clinton nominee’s behavior at the hearing. It was no way to act in a job interview, they said, especially for a lifetime appointment to one of the most powerful positions in America.
A number echoed what Fox News and other right-wing media were saying. They called the nominee, President Clinton, Democrats and liberals obscene, disgusting names, made unsubstantiated assumptions and dark insinuations, and repeated dubious conspiracy theories as fact.
Liberals vented at conservatives. Some claimed the Republicans were using and abusing the woman, victimizing her a second time. Or that conservatives were the ones being shamelessly hypocritical by supporting the woman’s #MeToo story after trashing the #MeToo movement. Others demanded Clinton withdraw her nominee. Most said nothing that could be construed as sounding anti-#MeToo.
11.Recognizing they lacked the votes on the Senate floor to confirm the nominee, since a handful of Democrats — especially from swing states — were concerned about him, the Judiciary Committee approved the nomination. But the panel asked the FBI to probe the allegations against the nominee, just for a week and in a limited way.
12.The FBI report came back. “There’s nothing in it that we didn’t already know,” Senator Feinstein said. “This investigation found no hint of misconduct.” Other Democrats echoed her view.
Republicans were purple with fury. They charged that the FBI report was a sham, as investigators were not permitted to interview a number of key witnesses who could support the Clinton nominee’s accuser.
Senate Minority Leader Mitch McConnell (KY) fumed, “[W]e had many fears that this was a very limited process that would constrain the FBI from getting all the facts. Having received a thorough briefing on the documents, those fears have been realized.” McConnell charged that the Clinton White House had “greatly constrained the investigation from the get-go.”
Nevertheless, Senate Majority Leader Chuck Schumer (NY) quickly scheduled a floor vote. The Senate narrowly voted to confirm Clinton’s nominee as Vice President Tim Kaine cast the tie vote.
Washington erupted. On social media, liberal celebration and conservative rage finally broke the internet for real. Sean Hannity challenged Rachel Maddow to an old school duel not with pistols but semi-automatic weapons with bump stocks. Maddow declined.
***
Many responses to an earlier version of this partisan Freaky Friday scenario I circulated said it’s beyond far-fetched.
A President Hillary Clinton and a Democratic Senate majority would never muscle through a Brett Kavanaugh to the Supreme Court.
Clinton likely would pull the nominee — or he would withdraw — so she could pick someone with fewer flies on him (or her).
Why? Among the many reasons my readers offered, two stand out:
First, Republicans are famous political knife-fighters. They fight hard and they fight to win. Fealty to political norms and Marquess of Queensberry Rules is for suckers and losers. Democrats bring a spoon to a knife-fight and then go weak and wobbly. So they would have caved on Kavanaugh early.
Doubt the partisan difference? Ask yourself: On balance, which party is squishier, more likely to give participation trophies so there are no winners or losers? More on point, which party respects government the most?
Second — and most of all — as the #MeToo party, Democrats would never go to the mat defending a white male facing even the slightest of sexual misconduct allegations (see: Al Franken). While Republicans, the #HimToo party, have shown few qualms (see: Roy Moore).
Indeed, a new poll by Public Religion Research Institute says that while 60 percent of Americans, and 81 percent of Democrats, wouldn’t consider supporting a candidate accused of sexual harassment, more than half — 56 percent — of Republicans would, and 61 percent of Republican men would. The poll was taken before the Dr. Ford-Judge Kavanaugh hearing.
I agree with these views. But what do you think? Thoughtful responses always appreciated.
Jeffrey Denny is a Washington writer
