When Kellyanne Conway, standing outside the White House, delivered the President’s position that the Senate should hear testimony from Judge Brett M. Kavanaugh and Dr. Christine Blasey Ford, his accuser, the #MeToo dynamic took over and the nomination died.

The accusation that Ford was subjected to an almost-assault or an assault by a drunken 17-year-old Kavanaugh thirty-six years ago took the confirmation  hearings to the #MeToo arena where burden of proof plays no role. And the decision to have Ford testify before the Judiciary Committee is dispositive:  an otherwise qualified candidate for Supreme Court appointment simply cannot survive televised accusations of sexual impropriety whether true or not, whether recent or decades old.

I have tried to think of such an accusation in other contexts that resulted in exoneration (or at least retention of a job) of the accused and I can’t think of any. So once Ford says so under oath before cameras and under predictably stupid questioning by both Republicans and Democrats, that’s it for Kavanaugh because at least two or three Republican votes will slip away.

That’s unfair.

I have no brief for Kavanaugh.

But the way these accusations arose suggest a set-up. Sen Dianne Feinstein learned of the charges on July 30, 2018. She was told that Dr. Ford wished to remain anonymous. Between then and now:

  • Sen. Feinstein did a fan dance with the revelations, declining to be specific in deference to the accuser; dangling their supposed significance; referring them to the FBI; and withholding them from other members of the committee including her fellow Democrats
  • Dr. Ford decided to reveal herself;
  • She took and “passed” a lie detector test;
  • She furnished the 2012 notes of her psychiatrist in which she described the effect on her of the 36-year-old experience with Kavanaugh;
  • She agreed to testify before the Senate under oath;
  • She has a lawyer doing cable-TV warmups for her testimony.

The revelation of all this a month after Sen. Feinstein found out about it and on the eve of a Committee vote pushes to next year any new White House pick should the Kavanaugh appointment be withdrawn or declined. That’s pay dirt for the Democrats.

And Democrats are undeterred. They say a withdrawal or declination based on these accusations is no worse than the failure to go forward with the Garland nomination in 2016. Welcome to the no-comity world of politics.

Lost in these political games (including the Garland nomination’s treatment) are the facts of who gets to do what with respect to judicial nominations under the Constitution. The President has the right to nominate the qualified person of his or her choice. The Senate gives “advice and consent” on and to the nomination, not including whether the qualified nominee’s politics comport with those of the Senators. President Clinton’s nomination of Justice Ruth Bader Ginsburg, a powerful advocate for liberal causes when at the Bar, was confirmed by the Senate 96-3 even though many of those who voted to confirm had deep disagreements with her views.

When I ran the Moot Court finals at law school I was responsible for entertaining the Justice of the Supreme Court who presided. Stupidly, I asked him, “How did you happen to get appointed to the Supreme Court?”

“Oh, that’s simple,” he replied. “I sat next to Harry Truman in the Senate.”

That was then. This is now.

It is a gross injustice to sink the appointment of a qualified candidate for the Supreme Court of the United States because someone says that he was a drunken jerk in high school who did something he never should have done.