WHEN Clarence Thomas, rigid with anger, accused the Senate judiciary committee of subjecting him to a “high-tech lynching for uppity blacks”, white America winced. Late in the process to confirm Mr Thomas’s appointment to the Supreme Court bench, he had been accused of sexual harassment by a former assistant, Anita Hill. Her claims were credible. But this was 1991, and America was far more nervous about racial than gender-based discrimination. The prospect of a bunch of white senators barring Mr Thomas, a black man who had risen from poverty in the South, on the basis of an alleged sexual misdeed was too excruciating to countenance. Miss Hill was rudely sent packing by the all-male committee, and Mr Thomas confirmed.
Twenty-seven years later, the cultural tide has shifted, to Brett Kavanaugh’s disadvantage. Until this week the 53-year-old judge was cruising to a berth on the court. But revelations that he stands accused of a sexual assault 35 years ago have put that in doubt. Mr Kavanaugh categorically denies the accusation. The justice committee’s Republican chairman, Chuck Grassley of Iowa, one of several holdovers from 1991, postponed a vote on partisan lines to send Mr Kavanaugh’s nomination to the Senate. He has invited Mr Kavanaugh and his accuser, an academic psychologist called Christine Blasey Ford, to appear before the committee.
They may not. Ms Blasey has demanded an FBI probe into her claims, which Mr Grassley is against. But this is already a major politico-cultural showdown. It involves a collision between President Donald Trump’s political priority, confirming conservative judges, and the most powerful repulse to his politics, in the form of the #MeToo movement that his misogyny helped inspire. Unless Ms Blasey’s allegations are discredited, the row will have lasting consequences for the standing of the court and both parties on the defining cultural issue of the Trump era.
Ms Blasey’s claim looks unprovable—but also credible. She says Mr Kavanaugh, as a drunk 17-year-old, threw her onto a bed at a high-school party, groped her and stifled her screams with his hand. There are many details of the alleged attack, including where in suburban Maryland it occurred, that Ms Blasey says she cannot recall. A high-school friend of Mr Kavanaugh’s, Mark Judge, who she claims was present for the assault, has denied it. Yet Mr Judge, an unreconstructed chauvinist who wrote a book about his teenage alcoholism, is not a strong defence witness.
The alleged assault is also referred to in notes taken by Ms Blasey’s therapist years before Mr Kavanaugh’s nomination. And though a Democrat, like most products of Maryland’s affluent suburbs, Ms Blasey appears to have nothing to gain from her allegations, much to lose, and to have stepped forward reluctantly. In fear of the pillorying Ms Hill received, she says she went public only after journalists got hold of her claim. Her lawyers say she has since received “vicious harassment and even death threats”.
There will probably be no clean end to this. Whoever the Senate disbelieves will feel aggrieved, and may have been badly wronged (as Ms Hill did and perhaps was). The truth looks irretrievable. Most of Mr Kavanaugh’s Republican supporters, after an instant’s reflection, have therefore doubled down. They have pushed back against Ms Blasey’s claims, on procedural and other grounds, and suggested she must show up next week or be ignored. “I’ll listen to the lady, but we’re going to bring this to a close,” sniffed Lindsey Graham of South Carolina. This is worse than Ms Hill suffered. Her allegations were investigated by the FBI. Moreover, the Republicans’ ulterior motive in trying to press their nominee home is more nakedly self-interested than it was in 1991. At issue is not merely a cherished Supreme Court berth. Their reputations, and their party’s prospects, are also on the line.
An ambition to steer the Supreme Court to the right is the main justification many Republicans cite for backing a leader who is anathema to Republican ideas and values. It is a determination that has sustained them, with an unsulliable feeling of rightness, through the indignities Mr Trump has piled on them. Now, in the shadow of mid-term elections at which Senate Republicans could lose their judge-making majority, they are at risk of failing in their all-justifying endeavour. It is too excruciating a prospect for once-admired senators such as Mr Graham, whose fawning over Mr Trump is especially dismal, to bear.
The irony of this, which will not be lost on at least half the electorate, is that by sticking blindly with Mr Kavanaugh Republicans are inviting a more serious blow to their personal reputations and party’s viability. Just as outrage over Ms Hill’s treatment triggered a surge of women into politics, Mr Trump’s offensiveness is also motivating women. The Democrats, who have seen a wave of women candidates, are already profiting. The revulsion many Alabamian women felt towards Roy Moore, a Republican candidate with an alleged fondness for young girls, cost the Republicans a Senate seat they thought they owned. The gender gap in partisan loyalty is at a record high and growing, as working-class women trickle from the Trump party and college-educated women leave it in a torrent. If the Democrats take either congressional chamber in November, this will be the main reason why.
The old boys-will-be-boys’ club
The damage Mr Kavanaugh’s confirmation, in the current circumstances, could do the Supreme Court is even worse. It would give it a second alleged conservative sex pest, and thereby an all-male conservative majority. It could then settle gender-divisive issues—most obviously concerning abortion rights—in ways that most women would abhor. The blow to the court’s standing could be severe. This is something Mr Grassley and his Republican colleagues should consider when they cite rules-based objections to Ms Blasey’s claims. The legitimacy American institutions enjoy rests on more than following rules. They must also be considered fair—or suffer the consequences.