Suddenly, Kavanaugh’s nomination is displaying many of the hallmarks of the #MeToo cases that have dominated public conversation for the past year, including the presumed relevance of decades-old events, the risk of retaliation against an alleged victim, and the threat of disgrace for a prominent accused man. The nomination also presents an occasion for repeating, remembering, and working through two earlier events. The first is the 2016 election of President Trump, who crudely bragged on tape about assaulting women, triggering popular feminist outrage that has fuelled the #MeToo movement. The second is the Senate confirmation hearing of Justice Clarence Thomas, in 1991, during which Anita Hill testified that Thomas had sexually harassed her while he was her boss. Today, the hearing is widely rued as a sexist national debacle because of Hill’s mistreatment during questioning by the all-male Judiciary Committee, and because of the resulting confirmation of the man she accused. At the time, senators asked Hill questions such as, “Do you have a martyr complex?” and “Are you a scorned woman?”

There should be little doubt that a credible allegation of sexual assault is relevant to evaluating a Supreme Court nominee’s qualifications. Supreme Court Justices are the ultimate arbiters of the law, and that law determines how we deal with wrongdoing. But, as Hill noted in the Times this week, “the Senate Judiciary Committee still lacks a protocol for vetting sexual harassment and assault claims that surface during a confirmation hearing.” As a result, Democrats and Republicans are arguing about what a hearing featuring testimony from Ford and Kavanaugh, which is scheduled for Monday, should look like, with the spectre of the Thomas hearings looming over the proceedings.

In a letter written to the Judiciary Committee on Tuesday, Ford’s lawyers balked at the idea that she would “testify at the same table as Judge Kavanaugh in front of two dozen U.S. Senators on national television to relive this traumatic and harrowing incident,” and requested that the F.B.I. first conduct an investigation. Senator Chuck Grassley, a Republican from Iowa and the chair of the Judiciary Committee, has suggested that Ford could instead testify privately or be interviewed by staff. Senator Susan Collins, a Republican from Maine and one of the two women senators who are seen as crucial swing votes on Kavanaugh’s nomination, has asked that Ford and Kavanaugh each be questioned by the other’s lawyer, provoking alarm from those who strongly disfavor cross-examination of alleged sexual-assault victims. It’s possible that, if Ford’s conditions are not met, and she declines to appear, the hearing will go forward without her, or that the Senate will simply cancel it and move to a vote on the nomination.

These skirmishes will seem familiar to anyone who has followed the debate in recent years about how to investigate and adjudicate claims of sexual misconduct on college campuses. This debate has involved questions about the proper involvement of law enforcement, whether it is appropriate to permit cross-examination of complainants, whether it is traumatic for the alleged victim to see the accused or to testify or be questioned at all, and whether a hearing is even necessary to assess what happened.

Considering what would constitute due process for Kavanaugh, then, involves reflection on whether Kavanaugh is best compared to a defendant who has been accused of a crime and stands to lose his liberty, or to a student who has been accused of misconduct and stands to lose an educational opportunity. If the answer is the former, that would suggest that Kavanaugh should be afforded many of the protective trappings of the criminal process, such as the right to cross-examine a witness, and that a heavy burden of proof lies on the side of the accuser. If it’s the latter, though, then perhaps a hearing can be dispensed with, and the standard of proof can be the lower threshold of preponderance of the evidence. Neither analogy is appropriate, though, because Kavanaugh does not stand to lose something that he already has. He is petitioning the public for the privilege of holding one of the highest public offices in the country, and he should have to persuade us that he didn’t do what he is accused of doing. But, of course, this doesn’t entirely capture the mix of reputational losses and gains at stake, for the individuals and institutions involved and for the country as a whole.

If Monday’s hearing proceeds as scheduled, Kavanaugh faces significant risks. He has called Ford’s allegation “completely false,” saying, in a statement, “I have never done anything like what the accuser describes—to her or to anyone.” If we believe her account over Judge Kavanaugh’s flat-out denial, then it appears that he has lied about the incident and seems prepared to lie under oath at next week’s hearing. (During the earlier hearings, Senator Hirono asked Kavanaugh whether he had committed sexual assault as “a legal adult,” which he was not quite at the age of seventeen.) If he does lie in defending himself, the risk of perjury looms. And while criminal defendants who deny their guilt and are convicted do not then normally face prosecution for perjury, untruthful testimony by someone who is seeking to be confirmed for the Supreme Court would be less forgivable.

Further complicating Kavanaugh’s testimony is the fact that Maryland, where Ford says the party was held, does not have a statute of limitations for felonies. In theory, Kavanaugh could be criminally prosecuted now or in the future, and the risk to him at the hearing includes potential criminal jeopardy. Although he was a juvenile at the time of the alleged assault, attempted rape is a crime for which a juvenile defendant in Maryland may be tried as an adult. This country routinely levies harsh and life-changing penalties on teen-agers, especially boys of color, who are overrepresented in our jails and prisons. It would be ironic if this nomination became an occasion for meaningful reflection on the need for leniency toward young people who have made grave mistakes. Meanwhile, Kavanaugh doesn’t appear to be taking chances with his potential liability. He has hired Beth Wilkinson, one of the best trial lawyers in the country.

When Senator Hirono questioned Kavanaugh about sexual misconduct, she noted that he was a former law clerk and longtime friend of the retired judge Alex Kozinski, formerly of the Ninth Circuit Court of Appeals. Last year, Kozinski resigned amid multiple allegations of sexual misconduct, before a federal judicial council could investigate the allegations. (Kavanaugh said that he had no knowledge of Kozinski’s inappropriate behavior before it became public.) If any sexual-misconduct allegations against Kavanaugh from the time since he became a judge were to surface, he too, could be investigated by a judicial council. The person who would have to call for such an investigation would be the chief judge of the District of Columbia Circuit, Merrick Garland.

https://www.newyorker.com/news/our-columnists/what-would-a-serious-investigation-of-brett-kavanaugh-look-like

(http://www.autoadmit.com/thread.php?thread_id=4082338&forum_id=2#36849463)