I ask that question rhetorically, because I believe with 99 percent confidence that if Kavanaugh were to withdraw from SCOTUS contention you’d never hear a Democrat mention his name again. Their mission is to keep him off the Supreme Court and to keep that seat vacant until next year, when they might have a majority in the Senate. If Christine Blasey Ford’s accusation does that for them, mission accomplished. Time to forget Kavanaugh and move on to strategizing against the next nominee.
Or at least, that’s what they’d do if they’re viewing Ford’s accusation as nothing more than a political cudgel, a means to an end rather than a grievous crime that really should be taken seriously.
Because if you take it seriously, as every Democrat will soon profess to doing when they vote no, there’s no reason they should permit Kavanaugh to sit on the D.C. Circuit. It can’t be that attempted rape is disqualifying for a Supreme Court justice but merely a “demerit” or whatever for a judge who sits on the Court of Appeals. If they’re serious about this, they have to come after him and try to remove him from his appellate seat. If they don’t, then what should we conclude about their own perceptions of the gravity of this charge?
One might distinguish the two scenarios, blocking a Supreme Court nominee and removing a sitting federal judge from the bench, by claiming different standards of proof. Impeachment and removal is equivalent to trial and conviction, ideally requiring proof of guilt beyond a reasonable doubt (or something on that order), whereas confirming a nominee has no similar benchmark. A senator can vote no for any reason. It makes sense to require a higher standard to strip someone of something they already have, like a prestige job, than to deny them something to which they were never entitled, like an even more prestige job.
But that’s too pat. To make the argument that Kavanaugh shouldn’t be removed from the D.C. Circuit under the circumstances would be tantamount to admitting that Ford’s accusation falls short (way, way short) of “beyond a reasonable doubt.” And that will lead people to question whether the standards of proof should be different, or what standard of proof should be required generally in #MeToo cases where there’s a single accuser with no hard evidence to support her allegation. It’s not just a prestige job Kavanaugh is at risk of losing here, after all; his personal and professional reputation are on the line, assuming they’re not wrecked already. To deny him the job is to say, inescapably, in the brightest national spotlight, that you think it’s more likely than not that he tried to commit rape. What standard of proof should a conscientious person apply before issuing a verdict that grave?
And to repeat: If you think it’s more likely than not that a would-be rapist is sitting on the Court of Appeals, how do you not at least try to remove him? Granted, 67 votes in the Senate is a pipe dream, but that’s not a reason for Schumer not to try if he believes the accusation. Nor would it be a situation like the one that often applies when one party inherits the White House from the other party and its base wants them to pursue the outgoing administration for crimes. (“Lock! Her! Up!”) In a case like that, the new president can always say that “for the good of country” it’s best not to prosecute leaders from the opposition for mishandling classified emails, etc.
But you can’t make that argument in a case of attempted rape. Are Democrats serious about this or not?
By the way, one Democratic senator already has raised the specter of impeachment for Kavanaugh, although not for what allegedly happened between him and Ford. Rather, he wants to impeach him if he lied under oath about it:
— Sheldon Whitehouse (@SenWhitehouse) September 16, 2018
It’s hard to imagine any evidence emerging that would prove Kavanaugh lied. What standard of proof is Whitehouse imagining here?
Two more points about the standard of proof for impeachment. One: Many a Trump critic has noted since the beginning of the Russiagate probe that impeachment is a political process more so than a legal one. Even if Mueller doesn’t find evidence that Trump violated a federal statute, it’s left to Congress to define “high crimes and misdemeanors.” The House and Senate are ultimately accountable only to the people. If a president is impeached and removed for “crimes” that the electorate deems specious, they’ll make that clear at the ballot box. All of which is to say, it’s really not the case that proof “beyond a reasonable doubt” is the touchstone for removing a federal official. And if it isn’t, then what’s left of the Democrats’ coming excuse that they can’t try to oust Kavanaugh from the D.C. Circuit because of the standard of proof? Declining to impeach under the circumstances would, once again, signal that they don’t trust Ford’s account completely.
Two: Should there be a higher standard of proof in disqualifying SCOTUS nominees? For years legal eagles on both sides have lamented the hyper-politicization of the confirmation process. If only we could go back to the old days, they say, when the Senate vetted a nominee mainly to make sure they were qualified professionally for a job with such awesome power. The president was due heavy (but not complete) deference in his choice. If we did return to that standard, would it affect the Senate’s judgment on Kavanaugh this week? Needless to say, a nominee suspected of being an ideologue would deserve more deference than a nominee suspected of having committed a sex crime, but what rule of thumb should the Senate start with in weighing nominees? Confirmed unless proven disqualified by … clear and convincing evidence, maybe? Would Ford’s accusation rise to that level?