Due Process Matters
The Kavanaugh Supreme Court nomination has reached a new low. The Committee hearings on his confirmation were a political process; not so much a “finding of information” than a sales (or hatchet) job. And now the Ford accusation makes that process even more political.
For the purposes of this discussion, let’s assume that the timing of the Ford accusation, after the close of hearings immediately before the Committee vote, was on purpose. It was a Democratic tactic to disrupt the “steamroller” to confirmation. It was purely political.
Does that matter? The fact that the Ford letter was leaked, probably by a Democratic staffer, for a political end; does it change what is required of the Committee and the full Senate? It shouldn’t.
Bret Kavanaugh, the darling of the Republican political establishment, has been accused of committing what would have been a felony sex crime when he was seventeen years old. Maryland does not have a statute of limitations, so in theory he could still be prosecuted for such an act. And while there are many that would give Mr. Kavanaugh some kind of “pass,” the “boys will be boys (and drunk boys worse)” exception, it doesn’t change the possibility that Mr. Kavanaugh may now be lying to the Congress and the American people about his actions.
It deserves “due process;” a thorough investigation into the charges. Mr. Kavanaugh should be welcoming such a search if he is telling the truth, it would serve to exonerate him. He deserves more than just a few “old men” questioning, and then reaching a pre-arranged conclusion. But he is silent, not asking for an investigation, and his Republican backers are clearly avoiding it.
Who else deserves “due process?” Dr. Blasey-Ford, who is the victim in the case. She is almost certainly a victim regardless of whether Bret Kavanaugh committed these acts, because it is most likely that the acts did occur. The number of sexual assault victims who “make it up” is less than ten percent. And there seems little reason for Dr. Ford to enter this maelstrom of negative attacks other than a single compelling one: she believes she’s telling the truth.
The victim should have some presumptions too. She should have the presumption that her story may be true, and deserves more than just a “grilling” in front of a Senate Committee. She deserves an investigation, one that the FBI could do in relatively short order. She deserves her “due process,” and so do the American people, regardless of the political nature of the timing of the charge.
We currently have one Supreme Court Justice who we reasonably believe sexually harassed his staff. Justice Thomas, here twenty-seven years later, has never come out of the cloud Anita Hill placed on his term in office. And there WAS an FBI investigation, even though the hearings on Ms. Hill’s charges were still cut short. Should the Republican majority ram-rod Judge Kavanaugh through without “due process,” he too will be under a cloud. While I expect he wouldn’t say an investigation is “for his own good,” it might be.
What shouldn’t happen? Mr. Kavanaugh’s good friend Ed Whelan, former Scalia Clerk and President of the Ethics and Policy Center (a conservative think-tank) put forward another suspect, a high school friend of Kavanaugh’s, with diagrams of the house that match up to Dr. Ford’s story. Mr. Whelan is allowed to investigate and reach conclusions accusing someone, but the FBI isn’t: that’s not “due process.”
So the maneuvering continues. Dr. Ford’s lawyers are negotiating with the Republican leadership, and it’s less than likely that there will be a “real” investigation of what actually happened. Mr. Kavanaugh will likely be confirmed, and the Republicans will pay a heavy price at the polls in November. Perhaps this will be the “last gasp” of the “old boys club.” “#MeToo” is strong in this nation, the “old boys” are old and losing control. Dr. Ford will become one more symbol of their unwillingness to find the truth, of their “ends” of controlling the Supreme Court, “justifying the means.”
They are willing to do almost anything to control the Court majority: even a charade that the whole nation will see as faked. Sure it’s politics; it’s everything that we hate about politics. The price for it will be heavy, at the polls and someday in the Court itself.
I hope so.
“it is most likely that the acts did occur. The number of sexual assault victims who “make it up” is less than ten percent. ”
I’d be curious where this stat came from. I don’t know how anyone can state that as a fact.
Also, there’s “making it up,” and having different perspectives on what happened, particularly when both parties involved were heavily inebriated. This plays itself out on college campuses all the time. Two people have too much to drink, and there is sex. The next morning, one says it was entirely consensual, the other feels taken advantage of. It may be hard to get at the truth, and both may legitimately have their own version of the truth. That is compounded astronomically by the passage of time: particularly, 35 years or whatever it has been. Our perception of things changes dramatically over time, as we all can attest.
I have seen very closely the way a false allegation of improper sexual advances can destroy the reputation of a young man, & damage his family. In that case, 3 years later, the girl admitted she made up the allegation, & apologized to the young man. The young man accepted her apology. But the damage, which was astronomical, was done.
There’s a reason we have statutes of limitations: at some point, either the thing is simply too stale, or the evidence trail has grown too cold, for the thing to be pursued. I understand that Maryland has no statute of limitation on felony sexual assault (although note, this would presumably be attempted sexual assault, & I think would have to be sexual assault in the 1st or 2nd degree, although the elements for that may have been alleged by Dr. Ford). We all know he is not going to be prosecuted. But he is being persecuted. Based on allegations of decades & decades ago. And it is quite clear that this all for political purpose: the Dems want to either hold up the nomination til after the midterms, or, if not, achieve maximum political theater at the spectacle of old white men questioning this woman. Either way, its a win for them, an opportunity for Corey “Grandstander” Booker and the rest to showboat for the cameras some more, with their political purposes & ambitions obvious to all.
What has happened to the judicial nominating process in this country is just terrible. That goes as to both parties. Merrick Garland should have been confirmed; what McConnell did in holding up that nomination was just wrong. That doesn’t make what Feinstein et al are doing right.
The percentage of made up sexual assault charges came from the National Sexual Violence Resource Center (https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf)
They have studies to back it up – take a look.
While I would agree that a false accusation does serious damage, I also need to point out that there has been a culture of male entitlement that allowed young men to take advantage of women (boys will be boys.) You and I both went to Universities where there were men like that (though I don’t remember that as a big issue at our high school – it may have been because of the friends we had.) In my previous line of work in high schools, I’ve had the unfortunate opportunity to see what happens to the women who are damaged, and then not believed or supported. It happens.
Kavanaugh should call for an FBI investigation; if he’s got nothing to hide. Kavanaugh should have known that if this was out there, it would come out. There’s nothing so harsh as the national spotlight. And don’t be fooled, if Gorsuch had such a history, it would have come out too.
He didn’t, even though he too was a product of Georgetown Prep.
To be honest, I think this is a process of bad vetting. I don’t think this is about lying, at least by the women. This is about a change in our society – what is accepted or not.
And finally, I really don’t know how we step back to “regular order.” On a really global scale it is the Congress who should be dealing with all of the social issues rather than the Courts, but since that hasn’t happened (or happened often) then the Courts have stepped in. Until we deal with that bigger problem (see this week’s post – Universal Solution) this is the way of Court nominees. But don’t ask the Democrats to do something that Mitch McConnell has never done, operated “fairly.” That’s not – fair.