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How the Kavanaugh fiasco may change vetting forever

The allegations against Brett Kavanaugh could force presidents to shy away from men with a history of heavy drinking or frat-house style antics. | Brendan Smialowski/AFP/Getty Images

Kavanaugh Confirmation

Potential nominees — especially older men — are likely to face scrutiny that goes even deeper and earlier into their lives, hunting for #MeToo problems that might previously have gone unnoticed.

The sexual misconduct allegations against Brett Kavanaugh may redefine high-level political background vetting for the #MeToo era, applying intense new scrutiny to even the teenage years of future Supreme Court picks and other top federal nominees.

High school keg parties, teenage love interests and college fraternities are all likely to be put under the microscope by government officials as a president weighs the next Supreme Court pick — especially when it comes to the dozens of well-credentialed middle-aged white males often touted as future justices who came of age before the #MeToo movement. The same likely applies to would-be Cabinet officials and potential presidential running mates.

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The allegations against Kavanaugh could also force presidents to shy away from men with a history of heavy drinking or frat-house style antics, even if vetting teams don’t find evidence of troubling inappropriate behavior, according to a half-dozen veterans of past Supreme Court battles. The charges against Kavanaugh, who had a sparkling image among Washington’s conservative legal circles, surprised the White House and many of the judge’s close friends.

“I think this will cause the vetters to pay close attention to that period of a nominee’s life,” said Ronald Weich, dean of the University of Baltimore law school, who previously worked on Supreme Court nominations as a Hill staffer and an Obama administration official. “Would that lead to nominees who aren’t vulnerable to this kind of scrutiny? Yes. And that’s probably a good thing.”

The result could be nominees — both for the Supreme Court and other high-level positions — with more diverse backgrounds and life experiences. All except six of the 100-plus Supreme Court justices in history have been white men, for example, and the vast majority of those have been in college fraternities.

But some experts worry the new scrutiny could sideline well-qualified potential nominees or even lead some to decline offers for fear that the most intimate details of their personal lives would become the latest chum for partisans on cable news and Twitter.

That has been a concern at least since Bill Clinton lamented “the politics of personal destruction” in the 1990s, after attacks on his personal life that he called politically motivated. But changing social mores, along with the social-media-powered speed with which reporters today can uncover far-flung classmates and unseemly yearbook quotes, has made past personal misbehavior more likely to threaten a nomination than ever.

“The standard is going to be so high for the next Supreme Court nominee that that person is going to have to be so squeaky clean,” said a Republican who has worked closely with the Trump White House on its Supreme Court picks. The result? “The more boring the nominee, the better off each side is in getting the nominee through.”

A lawyer who works closely with nominees for prominent government jobs echoed those concerns: “Does this mean you’re going to be left with Stepford Wife-type nominees? The answer is probably.”

Vetters have traditionally hunted for criminal behavior, financial impropriety or conflicts, embarrassing quotes or photographs, public lies and other “skeletons in the closet” that could include affairs or illegitimate children.

In general, youthful heavy drinking has not previously disqualified potential nominees, and there is evidence that voters have given notable passes to those who have engaged in such behavior. George W. Bush was an admitted heavy drinker through his 30s who famously declared that “when I was young and irresponsible, I was young and irresponsible.” Barack Obama was open about his youthful pot smoking. Both were elected to two White House terms.

But Kavanaugh’s high school and college partying has taken on new meaning as a test of his character and trustworthiness amid the sexual assault and misconduct allegations against him that have rocked Washington over the past two weeks.

Brett Kavanaugh

The vetting process for Supreme Court nominees and other Senate-confirmed positions has changed dramatically over the past few decades as officials have learned the lessons of high-profile failures.

Over the past 30 years, the Senate Judiciary Committee questionnaire for Supreme Court justices has ballooned as new questions have been added on issues such as whether a nominee has belonged to organizations that discriminate based on gender, race or religion.

But the current process may not be well suited for the standards of the #MeToo era, in which behavior toward women that was often ignored, doubted or swept under the rug is now exposed to scathing scrutiny that has taken down several prominent, powerful men.

Sussing out sexual assault or misconduct, especially involving incidents alleged to have taken place decades before, can be difficult. In many cases — including that of Kavanaugh’s first accuser, Christine Blasey Ford — women feel too ashamed to tell friends and relatives, making it hard for an FBI background investigation to detect. And FBI background checks also often don’t examine a nominee’s life before the age of 18.

Trump officials have not discussed in detail the Kavanaugh vetting process. But clearly their scrub of his background either did not uncover references to alcohol in his high school yearbook, or far more recent remarks in which he referred to heavy drinking — or else did not consider those to be red flags.

“How would you have picked this up in the vetting process or in the background check?” said the lawyer who works with nominees, who was not authorized to speak on the record. “The answer is you probably would not have, certainly not anything in high school.”

Added Tom Korologos, who worked on hundreds of nominations during his time as a Hill staffer and aide to multiple Republican administrations: “Arrests are easy to find. But a party where you drank a lot of beer at a fraternity house? Well god damn — how do you find that?”

Conservatives, for their part, complain that Kavanaugh’s confirmation has turned into a partisan circus, setting a precedent for future confirmation battles.

“I very much hope that this does not become the new normal,” said Carrie Severino, the chief counsel and policy director at the Judicial Crisis Network, a conservative group that is backing Kavanaugh’s nomination. “If you have anyone who is an enemy who might want to smear you, they have an opportunity.”

Dianne Feinstein

Severino added that she knows of people on conservatives’ shortlist for the Supreme Court who have expressed hesitation about eventually accepting a nomination because of the intensity of the process.

Kavanaugh’s high school and college life have been picked apart since Ford accused him of assaulting her at high school party in the Washington suburbs. Two other women also have accused Kavanaugh of inappropriate behavior, including exposing himself to a drunk student at a party in college and being sexually aggressive with girls at house parties. The judge denies the allegations, insisting he was a studious rule follower who remained a virgin well after high school. Friends and classmates, including a former college roommate, have challenged that image.

Kavanaugh wouldn’t be the first high-profile official whose nomination collapsed amid unexpected controversy.

President Ronald Reagan’s Supreme Court nominee Douglas Ginsburg withdrew amid revelations of past marijuana use, and Zoe Baird, President Bill Clinton’s first attorney general nominee, withdrew following reports that she had failed to pay taxes on undocumented immigrants she employed.

Despite the difficulties, some hoped that the days of nominating Supreme Court justices who might face allegations of sexual harassment or sexual assault had ended after the Clarence Thomas-Anita Hill scandal of the 1990s.

Even Hill thought things might be different this time.

“I think that now we are going to be vetting people to see if some of these issues are in their past,” she told HBO’s John Oliver in an interview that aired over the summer, before the allegations against Kavanaugh became public.

Referring to Thomas’ nomination and confirmation to the Supreme Court, she added: “So, I’m not even sure we would even get to a hearing.”

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