I dealt with countless sexual harassment and assault lawsuits against the University of California, Berkeley. Not even wrongful death suits evoked as much raw, ugly emotion. For that reason, plus the complexity of the issue, I haven’t wanted to talk about #MeToo. But the Kavanaugh Supreme Court nomination compels me to speak up.
When Dr. Christine Blasey Ford’s allegations first surfaced, I had two questions. Was it more likely than not that Kavanaugh sexually assaulted her? And if it was, should that have any bearing on his nomination? I didn’t come to any conclusions until yesterday’s hearing.
After Dr. Ford’s testimony, I believe Kavanaugh attacked her as she alleged. I can still be persuaded to the contrary — Kavanaugh must be presumed innocent, and there remains an element of uncertainty here — but in its tone and content, her testimony was convincing and consistent with that of the sexual assault survivors whose accounts I’ve heard directly. There’s also circumstantial evidence to back her up: she identified Kavanaugh as her assailant years before he was nominated to the Supreme Court; she passed a lie detector test; and she cooperated with the Senate Judiciary Committee despite profound misgivings.
So should that disqualify Kavanaugh?
Not in and of itself. Mature adults should not be judged by what they did as 17 year-olds, even if what they did was horrible.
What I wanted from Kavanaugh was evidence he’s grown beyond his 17 year-old self and possesses a temperament worthy of the highest court in the land. I’d have been fine with something along the lines of, “I don’t remember assaulting Dr. Ford, but I have to acknowledge that I got drunk a lot back then, and drinking impairs memory, so it’s possible I did it. If so, I can never sufficiently express my shame or my apologies to Dr. Ford. All I can say is that I’m not that person now, and I hope you can forgive me.”
Instead he appeared on Fox News three days before his joint hearing with Dr. Ford and declared himself 100% innocent. The choice of venue was telling. If he really wanted to persuade the public, why didn’t he choose a more neutral medium? And one of his arguments for innocence was that he remained a virgin in high school — shockingly weak logic from a supposedly brilliant legal mind.
Then he released his calendar for the summer of 1982, similarly facile — and irrelevant — support for innocence.
So it was no surprise he used the Clarence Thomas “high-tech lynching” defense in his testimony yesterday. Portraying himself as the victim, he not only proclaimed his categorical innocence of Dr. Ford’s charges, but of charges made by two other women as well. And then he attacked: “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”
One of the trial attorneys I used to work with criticized the Democrats for not immediately responding to this right-wing dog whistle. Here’s the first question he’d have asked Kavanaugh: “Well, that was certainly the most partisan speech ever made by a Supreme Court candidate. Since I’m supposed to be evaluating you for a position where you must put your personal beliefs aside and just follow the law, shouldn’t that concern me?”
Exactly. A Supreme Court nominee with judicial temperament worthy of the position would not categorically deny ever having touched anybody as a drunken 17 year-old; would not have run to Fox News for sympathy; would not have offered lame “evidence” of his innocence; and would not have dredged up the Clintons and “the left” as the reasons for his trouble.
But a partisan hack would.
I would not have seen a basis to deny Kavanaugh the Supreme Court nomination had he declared his innocence in more conditional, humble terms, or had he admitted to assaulting Dr. Ford. The crime, though hideous, occurred long ago. But the defense strategy he’s chosen proves he’s not qualified to sit on the Supreme Court.