The most bitter Supreme Court confirmation in decades came to an effective end just after 3 p.m. last Friday, when Susan Collins, Republican of Maine, took to the Senate floor to announce that she would vote in favor of Judge Brett Kavanaugh. In a long, detailed address, she spoke about a “gutter level” political fight, and said that the President has the “discretion” to nominate whomever he wants. She herself seemed to want nothing more than to be done with the events that had drawn the country into a melee of rage and sorrow. All week, protesters had been assembling at her office, telling her that she needed to do more than just stand by the Republican Party.
In this, Collins’s actions recalled a distinction made by Christine Blasey Ford, who said that Kavanaugh had sexually assaulted her some thirty-six years ago. Rachel Mitchell, a criminal prosecutor brought in by the Republicans on the Senate Judiciary Committee to question Ford, asked her to review a WhatsApp message that she had sent to the Washington Post. Ford worried that she had misused the word “bystander” to describe P.J., a boy who, in her recollection, had been one of the teen-agers in the house where the assault took place. “ ‘Bystander’ means someone that is looking,” Ford said. The assault had taken place in an upstairs bedroom, she noted, and P.J. “had been downstairs.” (She added, “What I remember of him was he was a tall and very nice person.”) The word “bystander” used to be automatically paired with the word “innocent”; for better and for worse, it has lost its air of exoneration, which is, presumably, why Ford wanted to be clear about the boy who stayed downstairs.
Who is a bystander—or a corroborator, or a collaborator, or a witness—and what such a person ought to do, know, recognize, or remember, became key questions in the wrenching discussions that have taken place since Ford’s story became public, a month ago, followed by allegations from Deborah Ramirez, one of Kavanaugh’s Yale classmates, that he exposed himself to her at a drunken gathering during their freshman year. (Ramirez acknowledged that her memories were fragmented. Kavanaugh has strongly denied all the charges.) Part of the issue is that assessments of a six-day F.B.I. investigation that Senator Jeff Flake, Republican of Arizona, had dramatically forced his party to agree to, turned on whether the agents had interviewed everyone they should have. They spoke to P.J. and to the men memorialized in Kavanaugh’s 1982 calendar as Timmy and Squi, along with Mark Judge, whom Ford says watched Kavanaugh pin her down and try to undress her. Leland Keyser, a friend of Ford’s who does not remember being at such a party but has expressed her faith in Ford’s account, was also interviewed. A number of Yale classmates who offered portrayals of Kavanaugh as a belligerent drinker, and without whom, Democrats argued, the investigation was incomplete, were not. Neither were Blasey and Kavanaugh.
Meanwhile, people on both sides, armed with online floor plans and real-estate-site photos, wandered through homes that they imagined may have been the location of the gathering, which Ford could not pinpoint, digging up property records and foreclosure filings. In some cases, these were earnest efforts to fill in gaps in the story; as Mitchell noted, in a memo that Republicans seized on, Ford had placed the date of the assault in the early eighties, the mid-eighties, and just the eighties, before tentatively narrowing it down to the summer of 1982. But there was also, at times, an indifference to invasions of privacy, or intrusions into private pain.
The problem of bystanderdom here goes well beyond the sexual-assault allegations against Kavanaugh. It was on display during the first part of his hearings, when Republican senators, in the interest of getting a conservative nominee confirmed, discounted the apparent lies that he told about his role in Bush-era torture and detention policies and in judicial nominations. And it extends to their decision to tolerate the excesses of Donald Trump, in return for his promise to nominate a conservative. When you decide to countenance demagoguery, one step leads to another. Last week, the Republicans had to put up with the President goading a crowd at a rally in Mississippi to laugh at Ford. Some of Kavanaugh’s supporters worried that this would make it harder for late-deciding Republicans to vote yes. In fact, Trump made the process more humiliating, not only for them but for the entire Republican Party.
In the Senate, the few voices left in the middle—in this case, those included the Democrats Joe Manchin, of West Virginia, and Heidi Heitkamp, of North Dakota—have rarely been so marginalized. Yet they were treated almost as the only actors who mattered, even though any two or three Republicans could have chosen to swing the vote against Kavanaugh. When Heitkamp announced, last Thursday, that she would vote no, she conceded that it might hurt her reëlection chances in November; in 2016, Trump won North Dakota with sixty-three per cent of the vote. But she spoke of the vote as if it had forced her to bear witness to her own past: “I can’t get up in the morning and look at the life experience I’ve had and say yes.” Manchin, who is also up for reëlection, in a state that Trump won with almost seventy per cent of the vote, made a different calculation: on Friday, he said that he was a yes. Lisa Murkowski, of Alaska, was the only Republican to say that she would not support Kavanaugh.
In contrast, the majority of the senators who had made their choice clear weeks ago were allowed to move, unperturbed, toward what was one of the most momentous votes of their careers. They made speeches if it was opportune, but not much else was expected of them, other than party loyalty. Mike Lee, of Utah, said that the process had “been exhaustive.” In terms of the consequences for the midterms, it may have just begun.
Jeff Flake, who is retiring at the end of the year, had made a telling comment on this point a few days earlier. Scott Pelley, of “60 Minutes,” asked him if he would have been willing to call for the postponement of the vote if he were running for reëlection. “No, not a chance,” he said. “There’s no value to reaching across the aisle. There’s no currency for that anymore.” Then where is the currency? Flake made the Senate sound like a casino, decorated with a gilded sign reading “TRUMP.” Yet, on Friday, he said that he would vote for Kavanaugh, after all. These days, in Washington, there are no bystanders, no senators who can ignore their role in the Kavanaugh fight, or how many Americans it may hurt, and for how long. ♦