The hearings resolved nothing. Arguably, they made everything worse. Dr. Christine Blasey Ford’s pain was real and searing. The line of questioning pursued by a criminal prosecutor hired by Senate Republicans failed to effectively undermine her credibility or diminish the superficial veracity of her story. Judge Brett Kavanaugh’s pain is equally real. He argued forcefully that the condemnation of him and his family over a rumor with no contemporary corroborating evidence in its favor would be a monumental injustice, and he’s correct.

Americans have been asked to serve as a mock jury to adjudicate what is, ultimately, a criminal allegation. But they’re doing so in a political venue. That has proven gravely unfair to everyone involved. The American public is simply not equipped to sort through the raw, unverified accusations with which they’ve been presented. They were offered no corroborating evidence yesterday to substantiate or undermine either party’s claim. What we have today is what we had on Wednesday—two conflicting testimonies from two earnest witnesses who have been subjected to a horrifying ordeal.

This is no longer a “job interview.” For Judge Kavanaugh, his life is on the line. Democrats have begun to take the consequences of what they are alleging to its logical conclusion. If he is found to have committed a sexual assault, Kavanaugh should not sit on any bench, let alone the Supreme Court. He should be impeached, disbarred, and perhaps face a criminal prosecution. His family will be ruined, and his reputation permanently destroyed. Dr. Blasey Ford, too, has put her reputation in the balance. Her career and professorship may be jeopardized if her testimony is found to be ineffectual.

For millions of observers, the stakes here couldn’t be higher. If Dr. Blasey Ford is not to be believed, then neither are the thousands of women who endured the kinds of assaults and indignities she has alleged. For Judge Kavanaugh’s defenders, the idea that a sterling legal career can be destroyed by unsubstantiated allegations about events that supposedly occurred in childhood is a precedent that must be forcefully resisted. This is a zero-sum game. Whoever emerges the victor, millions will believe that a travesty of justice has occurred. And when there can be no recourse to the legal system for redress, it’s not unreasonable to contemplate extraordinary means to secure the rights we have been denied.

Some believe in that a grand bargain might stave off the worst. Maybe Republicans could consent to a new FBI probe into Judge Kavanaugh’s background so long as Democrats concede to a strict time limit on that probe and an up-or-down confirmation vote by a set date. This is a fantasy. With midterm elections just weeks away, lawmakers will soon be heading home to campaign. Democrats will not be satisfied by any FBI probe with an artificial time limit imposed on it, particularly one that is built around the political calendar. Moreover, any compromise into the lame-duck session of Congress between election day and January would sap Kavanaugh’s confirmation of political legitimacy. Republicans will not stand for that.

No matter what terms to which the Senate’s grand bargainers agreed, the election would become the second consecutive national referendum on a Supreme Court seat. And all of this presumes that there is room to compromise on this matter, but there is not. The FBI will not resolve this; it will only present facts to lawmakers, who can be expected to leak them promptly to the public in the hopes of seeking some tactical advantage ahead of the vote in November. The public will become more radicalized in the process, and the next Justice to the Supreme Court ever more tainted. There can be no compromise. This is a binary choice.

Republicans have every right to their anger. It is legitimate, and it spans the breadth of opinion within the conservative movement that was torn apart by Donald Trump’s presidency. They are in a cynical trap of Democrats’ making. Democrats, too, are justified in their outrage. The decimation of the filibuster for all judicial nominees has stripped Senate Democrats of their minority protections, and the precedent established by Mitch McConnell in the effort to keep Merrick Garland off the Court has resulted in a widespread desire for revenge. The degradation of American governing institutions is real. So, too, is the breakdown of the public’s faith in the legitimacy of their government. That is an extraordinarily dangerous condition. We are not a tinderbox just yet, but we may be soon. And it will only take a spark.

There can be no face-saving here. One side will win, and the other will lose. Every American with a constituency is obliged to do whatever they can to take the temperature down on this moment, but they will shirk that duty. What can you do? It’s an election year. The rampant conflation of political with cultural issues has created an atmosphere in which all day-to-day conduct of public affairs is tinged with tension. Every conflict is existential. Every fight is a battle for supremacy. Every loss is a strike against justice. This is a construct, and sober minds should start attacking it. But there will be no sobriety or circumspection any time soon. And the boiling point is approaching.

Brett Kavanaugh
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