Ford and Kavanaugh -- and All of Us

Christine Blasey Ford's possible testimony reminds me of Anita Hill, although the allegations and the times are very different. 

When Hill testified that Clarence Thomas sexually harassed her, our law firm felt like two worlds. The other lawyers, mostly male, thought Hill's complaints insignificant or invented. The secretaries (mostly female) believed Ms. Hill (as did I), and understood why her testimony mattered. 

Ford says that Brett Kavanaugh (then 17, to her 15) tried to rape her, but was too drunk. His failure doesn't erase his mind-set. Or her trauma.

Her account of being strongly affected for years rings true. I've known many women who were permanently traumatized by bad conduct the man responsible might easily have forgotten. (My blog discusses examples.)

Her story is a credible mix of vividly recalled details (of what frightened her) and lost circumstances (whose house this happened at). She told it, identifying Kavanaugh, long before Trump nominated Kavanaugh, and she passed a polygraph test.

We haven't yet heard them testify under oath. 

The third person in the room, Mark Judge, alternately denies the incident and denies recalling it, and has already fatally undermined his credibility. He said such behavior would be wildly out of character for the nice Catholic boys who attended Georgetown Prep then. However, Judge's two memoirs portray the school as a hotbed of debauchery where boys “lusted after girls” from nearby schools and drank themselves into stupors at parties. Further, he's written of “the wonderful beauty of uncontrollable male passion.” Jeez but it'd be fun to cross-examine that fool. (In Judge's 1997 memoir, he references a “Bart O'Kavanaugh” who passes out drunk and throws up in a car. He's also complained of “social justice warriors” who confuse rape with innocent demonstrations of masculinity.)

I recognize Judge's “ambiguous middle ground” where a woman feels tempted but hesitates, and a man's energetic encouragement “helps” her decide. Sometimes what a man considers seduction feels like force to a woman. But that has nothing to do with Kavanaugh and Ford. Ford was 15 and had shown no interest in lovemaking. She says she was clearly fighting him. He was allegedly too drunk to care about her wishes – or enjoyed her fear. 

It's unfortunate that politics delayed bringing her claim to public attention, and to the FBI's attention. It's tragic that her allegation has evoked threats on her life so serious that she and her family have had to move out of their home. But she should speak, and should be heard. Whether or not his youthful conduct should be decisive here, this is an important public discussion.

If Ford testifies, the Senate Judiciary Committee will have powerful evidence against Kavanaugh: the sworn testimony of a sane and careful woman who has passed a polygraph. Judge's writings implicitly support her, by describing an atmosphere in which such conduct wouldn't have seemed unusual. Kavanaugh will say either that he never did such a thing (and never was so drunk he doesn't recall his conduct), or that he recalls no such thing and can't imagine that he'd have done it. Unless something in her words or manner strongly undermines her credibility, Ford's testimony will be the stronger evidence. 

The FBI might then investigate. Someone might invite Kavanaugh to take a polygraph test. 

Meanwhile, a fair observer might conclude that if his conduct at 17 didn't disqualify him from the Court, committing perjury at 53 should.

                                                  -30-

[The above column appeared this morning, Sunday, 23 September 2018, in the Las Cruces Sun-News, as well as on the newspaper's website the newspaper's website and KRWG's website.  A spoken version will air during the week on KRWG and on KTAL 101.5 FM, streamable at www.lccommunityradio.org]  

[I do not want to seem overly judgmental.  I'm not.  I probably drank even more than Kavanaugh did for a while in my youth, and am lucky not to have killed someone with my driving on Friday and Saturday nights.  I recognize that although what he allegedly did -- or tried to do -- was very wrong, I suspect there are moments from my life I wouldn't want to be judged on.  And I try not to judge others anyway.  I'm also well-acquainted with the legal principle that a defendant accused of a crime, who could lose his or her liberty if judged guilty, must be and should be presumed innocent unless and until proven guilty; further, s/he has to be proven guilty "beyond a reasonable doubt"; but I'm more familiar with other legal standards.  For example, in a civil lawsuit -- an accident case or allegations of unfair termination of employment -- is judged by the preponderance of the evidence.  Plaintiffs' lawyers often point out that "if the evidence, on the scales of justice, seems absolutely even in weight, and a feather falls on one-side, then you must decide for that side."  (In between is the "clear and convincing evidence" standard.)  

Kavanaugh is not being threatened with jail or execution, or even a fine.  He is a highly-privileged man holding a high position for his lifetime, unless impeached -- and fewer than a dozen of the 19 federal impeachments in the past 200+ years have resulted in conviction.  He is asking us to appoint us to an even higher position.  So let's not misapply the "innocent until proven guilty" rule.  If it's hard to tell, after they both testify, and you kind of lean toward the idea she's telling the truth (and you think his conduct matters, which is another question), what's wrong with leaving him in his current privileged position?]

[Haven't seen any press on anyone suggesting Kavanaugh volunteer for a lie-detector test.
But it makes sense to me.  It's inappropriate in a criminal case.  It'd be unconstitutional to insist on one there.  However, it's required in a lot of employment situations.  If you want the privilege of working in my bank, why shouldn't you  prove your honesty and thaat you're not addicted to gambling or to expensive drugs like heroin and cocaine?  
Here, Kavanaugh is seeking a lifetime appointment to one of the top jobs in the country.  I'm not saying polygraphs should be required of all such nominees; but where we have such a "He said, she said" situation, and the accuser (assuming she does, on Thursday) presents well and sounds persuasive (and has taken a polygraph herself) why wouldn't a Democratic member of the Judiciary Committee invite the nominee to take such a test?  For that matter, why wouldn't Mr. Kavanaugh, if in fact he knows she's fabricating her story, jump at the chance?  The only answer I can think of, if he's confident in the truth of his testimony, would be that taking a lie-detector test doesn't befit the dignity of a federal judge; but how does he suppose leaving this credible allegation out there would impact his dignity as a U.S. Supreme Court Justice?  If she's full of shit, then show us, Brett. 
If he declined, although that's not something a prosecutor could use as evidence against a criminal defendant, it might seem significant to an honest Senator who doesn't quite know whom to believe.]

[That she didn't publicize her story long ago, or make a criminal complaint against Kavanaugh, does not undermine her credibility.  We should all know by now that women often don't -- particularly 15 year old girls afraid they won't be believed, or afraid their parents will punish them for being there in the first place, or afraid she'll be socially destroyed as uncool, or afraid a complaint will just anger the boy enough that he tries again when he's not too drunk, or just mortified and embarrassed and unsophisticated. 

Ironically, as I was writing this column I interviewed a lady named Cari Jackson.  The Rev. Cari Jackson.  Who, before becoming a minister, went through law school.  She'd told me that although raised Pentecostal, she' begun to disbelieve, but that something traumatic had caused her suddenly to pray again, when she was 14.  What was the trauma?  She was raped.  Probably earlier in time than the Kavanaugh-Ford incident.  She did report it.  She adds that the white cops "violated me again," by insisting on their preconceived notion that she was making up the rape story because she'd wanted what happened but needed a defense against parental punishment.  

Girls are afraid.  Page down to a poem posted here on Friday, about one such girl, who I think was 14 when raped. 

I know another girl was 13 when an uncle tried to kiss her and feel her up in a car with another couple.  Didn't try to rape her, but scared the hell out of her.  Breached trust, too.  Decades later, that event, perhaps forgotten by him, was still affecting her. The poem is based on the story of a woman who'd been raped by an older sister's friend, in a VW. In her 30's she still couldn't have satisfactory sexual relations with a lover, because of it. It is not only the extreme horribles – a gang rape, say – that screw someone up for a long time. 

So Ms. Ford's story revives a lot of sleeping ghosts, of people I cared about scarred emotionally by incidents the boys or men probably forgot. 

And perhaps the best explanation of why people don't report a sexual attack against them when they're young comes from Charles Blow, an op-ed columnist in the New York Times.  The link is to a five-minute discussion on television, and I urge anyone who doesn't fully understand to listen to him.  He points out, for example, that it was 17 years before he mentioned the attack to anyone (a stranger, as it happened), didn't mention it again for two years, and didn't tell a third person for another eight years.  His television testimony is powerful.]

[Times have changed.  But not completely.   Although a recent USA Today story  reports that a poll shows that Kavanaugh is the first Supreme Court nominee whose confirmation is opposed by more people than support it (40 to 31 %), there's still a significant gender gap.   While women mostly believe Ford (35%, against 21% who disbelieve), men tend to believe Kavanaugh's denial (37% to 28%).  Not surprisingly, women oppose his confirmation by 20 points, 43 percent-23 percent, while men support him by four points, 40 percent-36 percent.  (For me, it's too early to say I believe her, since I haven't heard and watched her (or him) testify; but obviously I do lean that way.)]

[Note: after writing all this, Charlotte sent around excerpts from a Washington Post op-ed by a conservative  taking a stronger position on the point that if we can't tell, after Thursday, Kavanaugh should not be confirmed, partly for the sake of the dented credibility of our highest court.  He makes some good points.]

[The other question one hears is, "does it matter?" or "if it was just one youthful indiscretion, should it screw up his life?"  Reasonable-sounding question.  I think it does.  I want to see them both testify.  I tend to think the attempt displays an attitude that like remains inside him.  ("The child is father to the man.")  On the other hand, attitude's change.  I'd not like anyone to assume that mine haven't changed since a childhood in the 1950's and high school graduation in 1964.)  But even assuming a deep change in attitude in Mr. Kavanaugh, I also feel a little as if I lack standing to say, as do all the men on the Judiciary Committee.  If it appears that he did this, how do women -- particularly the many who've been raped or sexually assaulted -- feel about safety when one (or two, depending on your view of Clarence Thomas) of the nine Supreme Court justices have credible though unproven sexual misconduct on their records?  If Kavanaugh had grown up in Nazi Germany, and been in Hitler Youth, would we ask Jews to consider that an insignificant youthful indiscretion because everyone was doing it and thinking that way?  If he'd been in the Ku Klux Klan, would a black Congressperson shrug and remark that lots of southern boys had been, so no matter?  
Again, voting not to confirm him is a far cry from putting him in jail for an alleged incident from his youth.  We should go on our best and fairest reading of whatever the evidence is.]

[Jeez, sorry this is so long!]