Comparing the Handling of the Justin Fairfax and Brett Kavanaugh Situations

by Neil H. Buchanan

The intense media coverage of the situation in Virginia -- with the Governor and Attorney General admitting to having engaged in racist behavior, and the Lieutenant Governor having been accused by two women of sexual assault -- has looked at the situation there from seemingly every angle.  Although I acknowledge that I might have missed it, however, I have not yet seen more than passing remarks comparing the Lieutenant Governor's situation to the grotesquely mishandled confirmation process for now-Supreme Court Justice (ugh) Brett Kavanaugh.

Before trying to fill at least a bit of that apparent void, I should note that I have a somewhat closer than usual six-degrees-of-Kevin-Bacon-style connection to Lt. Governor Justin Fairfax, because a colleague at my law school is an immediate relative of Fairfax.  I am passingly friendly with that colleague, but we are not friends, and I have never met the lieutenant governor.

Even so, it is true that my school took genuine joy and felt a special connection in celebrating the election of a man in a state where his ancestors were once enslaved.  Indeed, on the day that I mentioned in class the moving story about Fairfax having carried the manumission document of his great-great-great grandfather, my eyes were not the only ones in the room that were tearing up.  This was a big moment for Virginia and for America, but it also felt somehow more personal.

Now, Fairfax faces two credible, corroborated claims of rape and sexual assault.  Given this shocking turn of events, we have to ask what people on the left think and are willing to do when one of their best recent feel-good stories takes such a shocking turn.  This is all the more important because Fairfax, at age 39, had been seen as rising star in the Democratic Party.  Although it is now all but impossible to imagine that his career has any remaining upside no matter what happens, it is still important to ask what should be done now.

The good news is that, within an excruciatingly difficult situation, Democrats in Virginia and nationally are handling the Fairfax question rather well -- certainly better than Republicans handled Kavanaugh.  As we have seen so often, Democrats hold themselves to the standards that they expect of others -- even when Republicans repeatedly and shamelessly refuse to do so.

As of this moment, Fairfax continues to resist calls for his resignation from large numbers of Democrats.  That is his right, and even though he might change his mind for any number of reasons, for now he continues to hold office.

If these accusations had been reported in a relatively normal environment, the pressure on Fairfax to resign might have been even stronger.  But because both Governor Ralph Northam and Attorney General Mark Herring are also under pressure to step down, it is not merely partisan concerns (although those are obviously real, as I will discuss in a moment) that should cause everyone to take a breath and ask how best to proceed.

When Al Franken was pressured to resign, the only political question was whether he would be able to serve his state in the U.S. Senate better than the Democrat who would replace him.  Whatever superior skills and experience might have weighed on Franken's side of the scales were more than counterbalanced by his loss of credibility as a progressive voice.  (As I suggested in a recent column, having Franken on the Senate Judiciary Committee during the Kavanaugh hearings would have been, at the very least, horribly awkward.)

In Virginia, by contrast, the prospect of simultaneously sweeping out the three Democratic winners of the most recent statewide election raises all kinds of questions of constitutional dimension, along with political ones.  People are now trying to decide what to do in the face of all three men's refusals to resign, which is surely frustrating to critics who want quick take-downs; but even if the Democrats' motives are mixed, they -- and certainly Fairfax -- are permitted to proceed more slowly.

Whether or not one thinks that the system ought to be giving Fairfax space to mount a defense, the fact is that he is refusing to go away.  Compared to what we saw during the Kavanaugh mess, what should we want to see from Fairfax and everyone else?

One of the most egregious aspects of the Kavanaugh confirmation circus was that Republicans had flouted procedure every step of the way.  Even before the allegation of sexual assault against Kavanaugh became public, Senate Republicans and the White House refused to release relevant documents to Senate Democrats and the public.  When Kavanaugh's accuser was then pushed into the spotlight, Republicans first said that they were going to ram the nomination through without a hearing, before relenting in the most circumscribed way possible.

And after the second hearing, there were reasonable calls to (finally) have a full FBI investigation of the situation.  Mitch McConnell and the White House then created an absurdly curtailed investigation-in-name-only, and even the supposedly responsible Republicans in the Senate (with one exception) voted to put him on the Supreme Court for the rest of his life.

This is the most obvious contrast with Fairfax, who is simply asking for the ability to mount a defense, which necessarily allows everyone -- including his accusers and political opponents -- to conduct the kind of investigation that was never carried out in Kavanaugh's case.  And although I believe that it was a good thing for Franken to be pushed out, even his defenders simply say that he should have been granted the investigation by the Ethics Committee that he requested.

Indeed, because the statute of limitations has not run in these matters, prosecutors in Massachusetts and North Carolina (where the two accusers say that Fairfax committed the alleged offenses) are discussing possible criminal charges.  Even though it is apparently unlikely that such charges will be filed, the investigative process is in motion.

Although Republicans insisted on misinterpreting the phrase "believe women" to mean that Democrats were convicting Kavanaugh without fair process (that is, that any mere accusation would supposedly be enough "to take a good man down"), believing women has always meant not automatically disbelieving women.  And whereas Trump and others simply dismissed Christine Blasey Ford as a liar or a dupe, no one is saying that Fairfax's accusers should be dismissed.  Although some of Fairfax's statements have been combative (and perhaps tone-deaf), even he is saying that he wants time for the facts to come out.

One difference between Kavanaugh last Fall and Fairfax now, of course, is that Fairfax is already in the office that he wants to keep, but Kavanaugh would have been kept out of the office that he sought if his confirmation were scuttled.  Individuals aside, the partisan calculus for Republicans was even less convincing than the Virginia Democrats' current dilemma, however, because if the White House had pulled Kavanaugh's nomination, there was still plenty of time (including the lame duck session, even if Republicans had lost the Senate in the midterm elections) to put someone on the Court who was every bit as extremely conservative as Kavanaugh is.

But what about the individuals?  It was always absurd for Republicans to claim that Kavanaugh's life would have been ruined by having his nomination withdrawn, because it is not as if remaining on the D.C. Circuit is a bad way to live one's life.  (Just ask Merrick Garland.)  In addition, as I noted during the Kavanaugh mess, it would have been perfectly plausible for the White House to say to Kavanaugh that, if subsequent investigation cleared his name, he could be first in line for the next opening.

That is not the route that they took, of course, but Kavanaugh would at worst have lived out his life bitter and angry that he lost out on his dream at the last second.  He could, in other words, have been the next Robert Bork -- and a rock star for decades to come at conservative political gatherings.  As I noted above, however, it seems unlikely that Fairfax has much of a future in politics, even if he serves out his current term of office.

Is that fair?  If the allegations against Kavanaugh and Fairfax are all true, then it would seem that it would be more than fair for both of them to suffer -- at the very least -- career consequences.  (I am putting aside my continued belief that Kavanaugh disqualified himself from ever again serving as a judge with his operatic, shrieking performance at his second hearing.  Even if he were innocent of everything, that is not judicial temperament.)  But even some women have claimed to be uncomfortable with the idea that we are judging men by standards that somehow seem "new."

One version of this concern that I have heard is that the story told by Fairfax's first accuser sounds like something that happens -- or, at best, used to happen -- a lot.  Two young people are attracted to each other, alcohol is involved, and the man eventually refuses to take no for an answer.  With Kavanaugh, the exculpatory version of the story is that high school kids are hormonal and cannot be held to account for not being able to control themselves.

I am not at all endorsing either of those defenses, of course.  I am, however, at least aware that expectations change and that a person can be accused of doing something that did not seem wrong at the time.  (Echoes of the other Virginia scandals, the ones involving blackface, can be heard here as well.)  But if things are going to change for the better, then they have to change.  That, in turn, means that someone at some point must be the first person to be treated differently than anyone in his situation has been treated in the past.

Ideally, the rules of a new regime could be articulated and announced in advance, with consequences falling only on those who violate the new expectations of behavior after those expectations have been adopted.  Unfortunately, that is not how things work in terms of social opprobrium.

"I just happen to be the one who got caught" has always been problematic argument, and when society is updating its attitudes about what is acceptable, "I didn't even know that this would be a problem, if I had known that I would get caught" is of limited effectiveness -- precisely because attitudes change only when people collectively say, "Wait, hasn't this been wrong all along, but we were somehow letting people get away with it?"

Again, we are not talking about criminal prosecution here.  The worst that can happen in these situations surely feels plenty bad to the people involved (with Fairfax watching his lifelong plan crumble before his eyes), but no one has an inherent right to a successful political career.  Political success is hopelessly random -- for example, many people forget that Barack Obama's victory in his race for the U.S. Senate was made possible by an ugly sex scandal that forced his Republican opponent to drop out of the race -- and so is political failure.  "He's the kind of guy you'd want to have a beer with" is just as absurdly career-defining as "I can't remember whether that guy was found guilty, but I know he's tainted" is career-ending.

We have, in both Kavanaugh's and Fairfax's cases, credible and corroborated accusations of behavior that people understandably (and, in my view, completely correctly) view as disqualifying if not criminal.  Fairfax is being investigated in the careful way that Republicans never permitted Kavanaugh to be investigated.  That honors the idea of believing women.  We are, by contrast, looking at decades of horrific jurisprudence from Kavanaugh (rather than from some other conservative) because Republicans refused to believe women.

Whatever happens in Virginia, the situation there is already a model of due process compared to the kangaroo court that Senate Republicans ran last Fall to pack the Court.