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Abu Dhabi, UAEMonday 22 October 2018

The Supreme Court controversy is testing the raison d'etre of Trump's presidency

The US president is banking on getting Brett Kavanaugh confirmed – or his authority could be seriously undermined

Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington. Manuel Balce Ceneta / AP
Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington. Manuel Balce Ceneta / AP

Donald Trump's second Supreme Court nominee, Brett Kavanaugh, a Republican party stalwart, appeared to be sailing easily towards being confirmed. But in an astounding confluence of political and social factors, the process has melted down. And the outcome could eventually help alter the structure of the Supreme Court itself.

At his uneventful hearings, Mr Kavanaugh dodged most key questions, such as those posed by senator Kamala Harris regarding the Mueller investigation, and said almost nothing of substance.

But last week professor Christine Blasey Ford accused Mr Kavanaugh of sexually assaulting her 36 years ago in a drunken frenzy when she was 15 and he was 17.

He “categorically and unequivocally” denies the allegations and has asked to testify. He suggests it is a case of mistaken identity and his allies have even publicly identified a potential doppelganger, only to quickly retract and apologise.

Nonetheless, the allegations are deeply troubling.

According to Prof Ford's account, she told her husband, therapist and others about the alleged incident long before Mr Kavanaugh was nominated. She says she passed a lie detector test, carried out by a former FBI agent, and gave the results to the Washington Post. Prof Ford has demanded an FBI investigation.

Initially she tried to remain anonymous but since her identity has been revealed, she says her family have been driven from their home by a barrage of harassment and death threats.

Naturally, the whole issue is shaped by raw politics.

Democrats are clearly trying to deny Mr Trump another Supreme Court Justice or, at least, delay the process until after the midterm elections, when they might regain control of the Senate. Their motivations include obviously instrumental calculations.

However, the Republicans are blazing new trails in dishonesty and amorality.

At first, they tried to merely deal with the accusations through private phone calls. They are now negotiating with Prof Ford to allow her to publicly testify but rejected her appeal for an FBI investigation and decline to question any witnesses beyond the two principals.

They flatly refuse to wait and gather additional information. The Senate Judiciary Committee has given her repeated deadlines to agree to their terms for another hearing, which has now been extended past the weekend.

The Republicans have made it clear finding out if the assault ever took place and if Mr Kavanaugh has been lying about it is hardly a priority.

Before even hearing from Dr Ford and evaluating her testimony, let alone investigating the matter, they have announced that they want their man on the court, no matter what.

Presidential adviser Kellyanne Conway called him “a good man”, adding he had “less than 24 hours from the time he learned her name [to] saying it’s just not true”.

The US president himself took to Twitter to call Mr Kavanaugh a "fine man, with an impeccable reputation" and to ask why it took his accuser and her “loving parents” 36 years to raise the matter – a statement that was immediately condemned by organisations representing sexual abuse victims as potentially confirming the fears of any women thinking about going to the authorities.

The Republican leader in the Senate, Mitch McConnell, insisted on Friday that Mr Kavanaugh would soon be on the court because "we’re going to plough right through it".

Numerous other Senate Republicans have dismissed her accusations, proclaimed his innocence or described the entire situation as “very unfair” to him.

In effect, they have corroborated Prof Ford’s insistence that her chances of a fair hearing depend on a formal investigation to establish the facts.

To a large extent, Mr Kavanaugh now serves as both a political and personal proxy for Mr Trump, who has also been accused of misbehaviour by many women and who boasted about groping them in an infamous Access Hollywood videotape.

Mr Trump is banking on getting his nominee confirmed because, as he openly recognises, many Republicans support him, despite grave doubts about his character and views, precisely because he is on a mission to appoint right-wing judges to the highest courts.

Were he to fail in this instance, he plainly fears, the raison d'etre of his presidency would be severely undermined in the eyes of many conservatives.

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Read more from Hussein Ibish:

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The controversy also tests the scope and the limits of the MeToo movement, which has been touted as an uprising against the impunity of powerful men who have abused or harassed women.

Mr Trump is the most prominent such man to have avoided being held to account and it is extremely dangerous for him personally as well as politically if Mr Kavanaugh cannot shrug off these allegations.

But unless he is decisively vindicated, Mr Kavanaugh’s confirmation might prove a pyrrhic victory for conservatives.

US politics are bipolar and Democrats will again surely wield massive power. Should they control the House of Representatives after the midterm elections, even if Mr Kavanaugh is confirmed now, he could then be impeached.

Even if Democrats don't have the votes to convict and remove him from office, a Senate trial could prove devastating for both the judge and the Republican Party.

Moreover, if Democrats again control Congress and the White House, they could move to undo what they increasingly regard as an illegitimate conservative majority on American high courts.

Congress could expand the number of Supreme Court justices from the traditional nine to a much larger number.

Franklin Roosevelt tried that and failed in the 1930s. But Mr Trump lost the popular vote to Hillary Clinton by three million. Republicans denied Barack Obama's nominee, Merrick Garland, a hearing and a vote for almost a year until Mr Trump was elected.

The looming cloud of suspicion over Mr Kavanaugh could prove the final straw.

If they are restored to power, Democrats could cite all this and more in a dramatic "court-balancing" project to undo the domination of right-wing judges in the highest courts, blocking policies favoured by an emergent and enraged centre-left American majority.

Hussein Ibish is a senior resident scholar at the Arab Gulf States ­Institute in Washington