A solution to Kavanaugh and our deeper divisions

Sens. Corey Booker (D-N.J.) and John Kennedy (R-La.) reflected during last week’s Senate Judiciary Committee hearing that no one can win.

That is more true and wise than they know.

For the health of the republic we need to move beyond Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. Our partisan and gender divisions are so great that neither side can or should win.

{mosads}No surprise that the committee voted, 11 to 10, to send the nomination to the Senate floor. The party-line outcome cannot possibly be seen as a victory for either side. The committee did allow for a one-week inquiry by the FBI; additional facts filling in the gaps in Christine Blasey Ford’s allegation or Brett Kavanaugh’s response may be helpful. Whatever is discovered, however, it is unlikely to resolve what really ails us. The causes of our deep-seated political rancor need to be addressed more directly than through the life of Judge Kavanaugh.

One possible way out is to both act and not act on the present nomination.

How? A recess appointment.

The Constitution provides for the president to make temporary, one-year appointments when the Senate adjourns without filling a vacancy. Kavanaugh could be one. While not often used, it is worth noting that George Washington was the first to make a recess appointment to the Supreme Court.

Particulars aside, the opposition to Kavanaugh is intense given that he is a replacement for Justice Anthony Kennedy, who constructed a reputation of open-minded, unpredictable alignment. But partisan dislike is no excuse for defamation. A recess appointment for a limited time of high court service, until the end of the next legislative session, could mitigate — independent of the credibility of Ford — the ugliness of some of the wilder unproven charges leveled against the judge by attorney Michael Avenatti and others.

Both Kavanaugh and Ford were badly treated by the Senate committee. Prior to the most recent hearing, Judge Kavanaugh’s record of significant judicial public service presented a colorable case for a Supreme Court appointment. The clumsy Senate practice of conducting the committee’s business, however, wrongly defiled the judge and embarrassed his family.

Ford seems an intelligent but harmed person worthy of respect. The Senate practice of laundering dirty undergarments in public failed her, too.

Her testimony did not definitively prove Kavanaugh to be a sexual abuser; how could it, without the obvious FBI investigation? But Judge Kavanaugh’s response was so immature and intemperate, in the view of some observers, as to disqualify himself from lifetime service on the nation’s highest court.

To say that Kavanaugh is not “entitled” is, of course, true. No one is. Yet, the inability of the judiciary committee to fashion rules for a standing executive session in which personal matters of a highly sensitive nature could be evaluated without the glare of public spotlight is inexcusable; it is especially so recurring decades after the Anita Hill and Clarence Thomas drama.

Let us remember that, ultimately, we are appointing a Supreme Court justice with serious checking responsibility defined in the Constitution. We are not talking about who will win the midterm election; whether President Trump is good or bad for democracy; whether women who have been abused subsequently suppress the trauma; whether Sen. Dianne Feinstein (D-Calif.) was playing politics or keeping a confidence; and certainly not whether we are beset by a mean, over-genderized culture that undervalues or falsely stereotypes the female in the culture, or vice versa.

We should be talking about none of these things when appointing a judge learned in the law and expected to be of the highest integrity, capable of fair judgment.

We need to clear away the extraneous, however entertaining or basely tempting it may be to dwell in the muck and the mire of political dirt.

Sen. Jeff Flake (R-Ariz.) pressed a helpful “pause” button. A recess appointment not only would give Judge Kavanaugh a decent opportunity to restore his reputation, it would create needed space for intervening elections, wherein one side or the other can demonstrate to the people why they should be our governors when the long-term, tie-breaking Supreme Court justice is chosen. The 2016 election with its surprising, divided outcome, still hidden beneath an ominous Russian cloud, was simply not sufficient to demonstrate the informed delegation of that authority.

And no one wins until we come to grips with that.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.