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Kavanaugh Column, News

“How Low Can You Go?” Is the Opposition Preparing Tactics to Keep Brett Kavanaugh’s Nomination in Limbo?

The news that leading media sources are seeking to troll through the work emails of Supreme Court nominee Brett Kavanaugh’s wife, Ashley, looking for emails containing hot-button words like “abortion,” “gay,” or “gun,” has many wondering if some kind of “October surprise” awaits Kavanaugh when his hearing begins after Labor Day. The relative quiet that prevails is a little like the scene in an old Western where the grizzled gunslinger peers into the still night and mutters, “It’s quiet. Too quiet. I don’t like it.” It reminds Washington veterans too much of hearings past, and especially of the confirmation of Justice Clarence Thomas, now at 70 the oldest-serving Justice on the Court.

Thomas’s nomination seemed to be heading for a straightforward confirmation after an initial hearing in the Senate Judiciary Committee. The Senate had confirmed Thomas’ nomination to the U.S. Court of Appeals for the D.C. Circuit (the same court on which Judge Kavanaugh sits) in March of 1990 by a voice vote, indicating no substantial opposition. He was nominated the following year for the Supreme Court seat previously held by Thurgood Marshall, the first African-American Justice on the Supreme Court, who was forced by ill health to retire in 1991 in spite of the fact that his seat would be filled by a Republican president, George H.W. Bush. The nominee heard questions about his judicial philosophy and about Roe v. Wade, but played his cards very close to the vest, recalling the tactics used to derail Robert Bork’s nomination four years earlier.

The Chairman of the Judiciary Committee, Sen. Joe Biden (D-DE), had gaveled the hearing closed. Afterward, allegations surfaced of sexual harassment claims made by Anita Hill, a former colleague, and co-worker of Thomas’s at the Equal Employment Opportunity Commission and Department of Education. The FBI interviewed Hill. Bide re-opened the hearing to allow Hill to testify, and three days of salacious accusations ensued, aired on national television. Hill’s assertions turned not on any alleged physical contact or “quid pro quo” requests for sexual favors, but instead on charges that he repeatedly asked her for “dates” and engaged in sexual banter.

After denying the allegations “unequivocally, uncategorically,” Thomas made the following statement to the committee:

I think that this today is a travesty…. This is a case in which this sleaze, this dirt, was searched for by staffers of members of this committee, was then leaked to the media, and this committee and this body validated it and displayed it at prime time over our entire nation. How would any member on this committee, any person in this room, or any person in this country, would like sleaze said about him or her in this fashion? Or this dirt dredged up and this gossip and these lies displayed in this manner? How would any person like it?

The Supreme Court is not worth it. No job is worth it. I am not here for that. I am here for my name, my family, my life, and my integrity. I think something is dreadfully wrong with this country when any person, any person in this free country would be subjected to this.

This is not a closed room. There was an FBI investigation. This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace.

And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. — U.S. Senate, rather than hung from a tree.

(The video at the same link is also well worth the watch. Thomas’s wife, Virginia, is sitting behind him in the clip.)

Perhaps reflecting the equivocal nature of the evidence against Thomas, the Judiciary Committee split 7–7 and sent the nomination on without a recommendation. Thomas was confirmed by the narrowest margin in modern history, 52–48.

Thomas’s mentor, John Danforth, told NPR many years later, “I hope that doesn’t happen to any other nominee. It’s not worth it. It’s not worth trying to destroy a human being to win a political point …. It was absolutely the worst experience of my life.

But the character of Justice Thomas, by all accounts a very good and decent man, is burdened with skepticism in some circles to this day. Here’s a December 2017 article from National Public Radio, re-examining the Hill allegations in the light of the #MeToo movement. NPR quotes Hill, now a law professor at Brandeis, and makes clear its view that she was the victim. Thomas “still sits on the court,” NPR intones, having “thus far, escaped any further scrutiny.”

The point isn’t that pro-abortion opponents of Judge Kavanaugh are trolling for former colleagues and clerks who are willing to testify that he engaged in inappropriate conduct. Frankly, based on the unanimous public accounts of his personal rectitude and the glowing support he’s received from female clerks (who outnumber his male clerks, by the way), we doubt that any such persons exist. The point is that there are those, including perhaps on the Judiciary Committee staff, who would go to any lengths to derail his confirmation – even to the point of entertaining scurrilous and unsubstantiated accusations against the character of a good man.