POLITICS
09/26/2018 02:06 pm ET

Conservatives Say Every Male Nominee To The Supreme Court Would Be Smeared. But What About Neil Gorsuch?

Or Samuel Alito? Or John Roberts?

Supreme Court nominee Judge Brett Kavanaugh has been accused of sexual misconduct while drunk by three women ― two in high school and one in college. Conservatives are now citing these accusations, which have stalled his confirmation for only one week, as evidence that no men, particularly conservative ones, can ever be nominated to the Supreme Court again because they will all face false allegations of sexual impropriety.

“I’m thinking, is there any man in this room that wouldn’t be subjected to such an allegation? A false allegation?” Rep. Steve King (R-Iowa) said at an Iowa Faith & Freedom Coalition event on Sept. 22. “How can you disprove something like that? Which means, if that’s the new standard, no man will ever qualify for the Supreme Court again.”

Supreme Court nominee Brett Kavanaugh is one of only two nominees out of 163 in history to be accused of sexual misconduct.
Chris Wattie / Reuters
Supreme Court nominee Brett Kavanaugh is one of only two nominees out of 163 in history to be accused of sexual misconduct.

“If stupid, bad, or drunken behavior as a minor back in high school were the standard, every male politician in Washington, DC would fail,” former Rep. Joe Walsh (R-Ill.) tweeted on Sept. 17.

“I think it’s like we see over and over again, it’s character assassination,” Rep. Ted Yoho (R-Fla.) said in a Fox News interview on Monday. He added that other conservative men have faced similar allegations. “We saw this with Judge Roy Moore.” A Republican U.S. Senate candidate in Alabama in 2017, Moore was accused of sexual misconduct by multiple women when they were as young as 13 and he was in his 30s.

“If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried,” Politico anonymously quoted a lawyer close to the White House as saying. “We can all be accused of something.”

And then there is this:

This all fits with the centuries-old claim by conservatives that they and the people who hold power are the real victims in society. But it faces the obvious problem that it is false.

For example, someone — a quite conservative male someone named Neil Gorsuch — was nominated to the Supreme Court just last year and did not face accusations of sexual impropriety. He was strongly opposed by Democrats after the seat he was appointed to was held open by Senate Republicans for more than 400 days as they refused to offer President Barack Obama’s nominee Judge Merrick Garland a hearing, let alone a vote.

Gorsuch was confirmed with the fifth-smallest margin for a Supreme Court nominee in history without ever being accused of anything untoward, aside from being really, really conservative. (There are, of course, numerous nominees over the years who withdrew from consideration, were rejected by the Senate or, in the case of Garland, were ignored entirely.)

Justice Neil Gorsuch, a conservative jurist, was confirmed to the Supreme Court without facing any allegations of sexual
The Washington Post / Getty Images
Justice Neil Gorsuch, a conservative jurist, was confirmed to the Supreme Court without facing any allegations of sexual impropriety in 2017.

Kavanaugh and Justice Clarence Thomas are the only two high court nominees ever to be accused of sexual impropriety. (Judge Douglas Ginsburg quickly withdrew from consideration after he was accused of smoking marijuana as an assistant professor after President Ronald Reagan nominated him to the court in 1987.)

Perhaps conservatives would like to argue that only nominees who could markedly shift the balance of the court to the right will face these kinds of allegations. Thomas’ replacement of Justice Thurgood Marshall, a liberal icon, certainly was one of the biggest changes in the Supreme Court’s ideological makeup in recent memory.

While Kavanaugh is viewed as more conservative than Justice Anthony Kennedy, whose seat Kavanaugh would fill, his appointment would not be the largest swing in ideology since Thomas’. Justice Samuel Alito’s replacement of Justice Sandra Day O’Connor in 2006 was a bigger swing than a Kavanaugh-for-Kennedy trade would be. And Alito never faced allegations of sexual wrongdoing.

If the argument — which it is not — is that this doesn’t happen to liberal men in politics, it does. Al Franken is not a senator anymore. John Conyers is not a congressman. Eric Schneiderman is not New York’s attorney general. Nor is Eliot Spitzer the governor of New York.

So conservative men can be nominated to the Supreme Court and not face allegations that they drunkenly attempted to remove a girl’s clothes while holding their hand over her mouth to keep her from screaming ― or anything along those lines.

These look like claims about individuals like Kavanaugh and Thomas, not claims against conservative men collectively. That is something you’d think Kavanaugh’s defenders could understand.

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