The confirmation process of Brett Kavanaugh has been decried by many for damaging the Senate’s norms of civility and the Supreme Court’s nonpartisan reputation. But that process, and in particular the September 27 hearing on allegations of attempted rape by Kavanaugh has had a much more specific risk to the Court as an independent institution.  This risk will cast a disabling shadow on any vote cast by a Justice Kavanaugh in a case that yields predictable partisan divisions.  

The risk arises primarily (although not only) because of Judge Kavanaugh’s denials of heavy drinking habits in high school and in college. These are at odds with the recollections of a large number of his peers. The discrepancy is no small matter. Rather, it goes to the core of sexual assault allegations against him. If Judge Kavanaugh falsely stated that he never drank enough to potentially blackout and memory impairment, then he cannot categorically deny the possibility that Dr. Christine Blasey Ford’s grave allegations are correct. Yet, he has repeatedly done so.(There are other grounds for questioning Kavanaugh’s truthfulness under oath on a surprising range of issues; we set those aside here for the sake of brevity and analytic clarity)

Judge Kavanaugh’s aggressive deflections of questioning about his drinking suggest that he understood how crucial this fact was and is. Democrats understand it, too. Some quickly called for FBI investigations into potential perjury respecting this very issue. The FBI investigation did not reach these questions. After November, however, some Democrats may wield subpoena power permitting them to find out more, and perhaps even to draw up articles of impeachment.

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