As I watched and listened to the testimony of Dr. Ford and Brett Kavanaugh yesterday, I couldn’t help but wonder how we got here. In a world where truth no longer matters, where partisan politics reign supreme, and bad behavior is rewarded; no side emerges squeaky clean.
I don’t know what happened between Dr. Christine Blasey Ford and Brett Kavanaugh. Neither do you. We can sit here and talk about the “he said / she said” element of this whole ordeal. We can point to sworn statements, polygraph tests, calendars full of chicken scratch and yearbooks full of flatulence jokes. And we can listen to impassioned statements by both, each seemingly convinced of the truth to which they are speaking.
The truth, to us, is that we will never know what, if anything happened.
So Where Does That Leave Us?
We operate in a system where accused individuals are offered a presumption of innocence. That is why the standard of “reasonable doubt” is applied. That is why the “burden of proof” rests on the accuser and not the accused.
These standards are applied in court proceedings and many will be quick to point out that there is no trial here. While true, the standards of due process, reasonable doubt, and the burden of proof are as much procedural, cultural, and societal norms as they are enshrined in law.
The question which is rarely being asked is this. Is an allegation, no matter how credible or believable it may be, enough?
The support for Dr. Ford and Judge Kavanaugh is understandably split, often along party lines. However, it has caused some crossover as well. Speaking with several of the women in my life, I was struck at how some of the most ardent liberal Democrats among them were suspicious of Dr. Fords claims, or more specifically, the timing of it.
Shame On You, Senator Feinstein
I place the blame for such timing squarely with Senate Democrats, specifically Senator Feinstein. After having received an account by Dr. Ford, Senator Feinstein withheld this information from the rest of the committee, certainly from the majority. It was only after the hearings had concluded did these claims become public. This was a disservice to Dr. Ford, Judge Kavanaugh, the committee, its processes, and more.
At any time, Senator Feinstein could have raised this issue, publicly or privately (the committee conducts private, non-televised sessions during the confirmation hearings). The letter sent by Dr. Ford could have been forwarded to the FBI, to the Senate investigatory service, to other members, or to any number of other reasonable channels.
Whatever else may be true, Senator Feinstein behaved poorly. In a move that was purely political, this charge was withheld from view, not introduced, and not revealed until it was used as an 11th hour Hail Mary by Senator Feinstein who no doubt realized that Judge Kavanaugh’s confirmation was imminent.
This is not a search for the truth. This is using a woman’s allegations, her past, and her pain for political points.
Shame On You, GOP
The timing of the allegations is enough to raise questions. Point stipulated. Moving on.
However, Chairman Grassley and Senate Republicans could have done more to at least pretend they were taking the allegation seriously.
It is true that Chairman Grassley made several overtures to Dr. Ford. Deadlines were pushed back, the offer to fly to California to conduct an interview and allow her to speak her testimony was extended. Due to the sensitive nature of the allegation, it was offered that her testimony could be given in private rather than in a public, open session.
What wasn’t offered, however, was further scrutiny of the allegation, up to and including interviewing or hearing testimony from named witnesses or an investigation by the FBI.
Mark Judge Should Have Testified
Mark Judge was named by Dr. Ford as a friend and essentially co-conspirator of Brett Kavanaugh. Mark Judge offered a written statement through his attorney denying his involvement or knowledge of the allegation.
In fact, all witnesses named specifically by Dr. Ford responded similarly, and often under penalty of perjury. They don’t know what she’s talking about or were never at any party. They weren’t there or they don’t know Brett Kavanaugh, etc. These statements were damning for Dr. Ford.
But that doesn’t mean they were true. It may be a bridge too far to assume they are all lying. I certainly find that hard to believe. However, that doesn’t mean they shouldn’t be called before the committee. Mark Judge was named as being in the room during the alleged assault. At least give him the opportunity to be questioned under oath. If he says the same thing, so be it.
The Republican-led Senate Judiciary Committee understandably wanted to confirm Kavanaugh before the midterms and before the next seating of the Supreme Court. The latter has already passed. At this point, what harm can a few more days, or even a few weeks cause?
Democrats and supporters repeatedly called for an FBI investigation of the allegation. Truthfully, it should have happened. I agree it would have led nowhere, for reasons I will get into shortly. However, it would have added legitimacy to the process and offered a way for Senate Republicans to point and say “hey, we had the FBI investigate.”
As Joe Biden pointed out during Clarence Thomas’ hearing:
“The FBI does not reach conclusions……The reason we cannot rely on the FBI report, you wouldn’t like it if we did, because it is inconclusive.”
Had the FBI investigated, they would have interviewed all available witnesses, taken their statements, and presented them to the committee. In essence, this has already happened. The FBI would not reach a conclusion. They would gather what evidence is available and present it to the committee for them to decide as they did with Clarence Thomas.
It should also be noted that to date, Brett Kavanaugh has been vetted by the FBI on 6 occasions, including for a security clearance when he was Staff Secretary for the Bush White House.
So, why have the FBI investigate? Purely for show, in my opinion. It is obvious that Republicans recall the Clarence Thomas ordeal and were reminded of Joe Biden’s arrogant speech above. If the FBI does not reach conclusions and their reports are inconclusive, what would the use be? Pure optics. Nothing more.
Perhaps it was this that caused Senate Republicans to push back against the requests for an FBI investigation. Would the narrative then change from “We want an FBI investigation!” to “The report was inconclusive! We need more information!” Probably so. Such is the nature of partisan politics. It is a game, and one the GOP apparently had no interest in playing.
It is also a game that the Democrats in the Senate had no real playbook for. Upon hearing Dr. Ford’s testimony, we learned very little that was not already reported on. Democrats, for their part, took the opportunity to heap praise on Dr. Ford and thank her for her courage. Several used the opportunity to launch their presidential campaigns. All were content to virtue signal to their base.
Republicans, for their part, ceded their questions to an expert in investigating sex crimes. The line of questioning poked some holes in her story but fell short of attacking her.
When Brett Kavanaugh was called, Democrats repeatedly asked him if he was a drunk, if it was possible he was blacked out and didn’t remember the assault. They repeatedly asked him to call for an FBI investigation of himself. Republicans came to his defense and accused Democrats of playing political games.
In the end, the circus revealed nothing except for that we live in one.
The Absence of Evidence
A lost story-line in this whole ordeal is the seriousness of sexual assault allegations and why their prompt reporting is necessary. After 36 years, evidence fades. Memories became hazy. Witnesses remember (or don’t remember) things Indeed, Dr. Ford could not precisely recall the date, time, or location of her alleged assault. At first, she could not provide the year it took place in. She still does not know whose house she was at and reports vary regarding how many others were in attendance. Was it 4? 5? More? She can’t be certain.
This is 100% believable by the way. Even for a traumatic experience. I am 35 years old today. If pressed for detailed information on any number of parties I attended in high school or college (15-20 years ago), I would have trouble speaking with confidence about any of them.
However, that does not help Dr. Ford’s case. Not in a court of law or the court of public opinion among many. That her account is “believable” or that she seems “credible” is not evidence of wrongdoing. And so the question remains. Is an allegation, no matter how credible or believable it may be, enough?
It’s Not About Belief
It doesn’t really matter if you believe Dr. Ford. What matters is if you want to set a precedent where she is to be believed, and those beliefs acted upon, without the presence of evidence. And, in no small way, would you invite such a standard to be applied to yourself or those you care about?
Principles are rarely easy to abide by. Often, they are uncomfortable. The same is true of the standards and procedures we put in place to protect our society. We have a system of due process, burden of proof, and the presumption of innocence precisely so that accusations or the whim of a ruler (or ruling body) cannot act as judge, jury, and executioner without meeting these burdens.
This is why sometimes criminals go free. Failure to hold these standards is why sometimes innocent people go to prison. Adhering to these standards is how innocent people wrongfully incarcerated are freed years later. When we discover that a fair and impartial process was denied, that the burden of proof was not met, or that the process itself was tainted, we take action. Not often enough in my opinion.
Where Do We Go From Here?
This all means little in the court of public opinion, many of whom have already made up their minds on this issue. Should Brett Kavanaugh be confirmed, there will always be a portion of the population which believes him to be a criminal himself. Should Democrats retake the House in 2018, they will undoubtedly attempt to impeach President Trump and possibly Kavanaugh as well.
If Brett Kavanaugh is not confirmed, it will set a precedent that a mere allegation is enough to ruin a person’s life. An allegation from 36 years ago, where the day, time, and location are not known. One for which there are witnesses named by the accuser who refute the accusation. An allegation for which there is no physical evidence.
Both are not ideal. And in either case, it will not end with Brett Kavanaugh. In either case, no one will emerge from this ordeal unscathed. Not Dr. Ford, Brett Kavanaugh. Not Republicans. Not Democrats. And certainly not America.