The Kavanaugh Allegation Process Is A Miscarriage Of Justice For Everyone


A Senate star chamber full of grandstanding senators on both sides will not elucidate what happened four decades ago, when all people involved were minors, and the accuser is unclear on the details.

By Mollie Hemingway
TheFederalist.com

After the Senate Judiciary Committee hearings for Supreme Court nominee Brett Kavanaugh concluded last week, Sen. Dianne Feinstein, D-Calif., revealed that for six weeks she’d hidden a claim he’d sexually assaulted someone. Christine Blasey Ford then told the Washington Post that Kavanaugh had sexually assaulted her when they were teenagers.

Although she said she doesn’t remember where or when the alleged event occurred, she said she believes it may have been in the summer of 1982 and that Kavanaugh’s friend Mark Judge was present for the assault. Notes from a couples therapy session in 2012 show that she spoke of an assault involving four boys, not two, from an elitist DC boys’ school. Kavanaugh isn’t mentioned in the notes, but Ford’s husband says she told him the name at that time and said she was worried he might be a Supreme Court nominee in the future.

Kavanaugh categorically denies the allegations. Judge says he doesn’t recall any such event and that Kavanaugh didn’t behave that way. Another alleged party attendee named by Ford says he doesn’t recall such a party and that Kavanaugh didn’t behave that way.

The Senate Judiciary Committee has delayed the vote on whether to confirm Kavanaugh, reopened the hearings, and invited both Kavanaugh and Ford to speak to the matter. Kavanaugh has agreed but Ford says she won’t testify until and unless the FBI investigates her claim. Democrats, who previously asked for the hearing, now suggest that the vote to confirm Kavanaugh should be delayed for as long as it takes for an investigation to take place.

Senate Republicans are less enchanted by the demand that they indefinitely delay Kavanaugh’s confirmation vote so unverifiable claims might be investigated. Sen. Chuck Grassley, R-Iowa, said, “Immediately after learning of Dr. Ford’s identity from news reports Sunday, committee staff started working to gather facts related to her claims. We’ve offered Dr. Ford the opportunity to share her story with the committee, as her attorney said yesterday she was willing to do. We offered her a public or a private hearing as well as staff-led interviews, whichever makes her most comfortable. The invitation for Monday still stands.” The committee explained that the FBI “considers the matter closed” and doesn’t make credibility determinations.

Much of the media coverage has focused on how this is good for or Democrats and bad for Republicans. While that’s interesting, if debateable, it’s far more important to discuss whether this is good for the republic itself.

Senate Not Appropriate Venue To Litigate Sexual Assault

Feinstein has not been asked to explain why she sat on the claim for six weeks, hiding it until after the hearings concluded. She had an opportunity to ask Kavanaugh to address the matter privately, or in public. She could have shared the information with the committee at any point so that they could begin to gather information. Instead, she hid it until she sent it to the FBI with identifying details redacted.

But even if she had handled the situation properly, and not as a political cudgel, the Senate is still an inappropriate place to litigate claims of sexual assault. Since Maryland apparently doesn’t have a statute of limitations on felony sex assault, charges could still be filed there if the case is strong enough to do so.

While the media and other Democratic institutions are currently disdainful of due process for sex assault claims, in America, we don’t say that murky allegations are the same as guilty convictions. We don’t even say that clear allegations are the same as guilty convictions. People have a constitutional right to face their accuser, and cases must be proven beyond the partisan court of punditry. If Kavanaugh, a husband and father of young girls, is an attempted rapist, the appropriate place to make that case is in a courtroom.

Society should encourage the use of legal proceedings where the accuser can get a measure of justice for wrongdoing and the accused faces a jury of peers instead of a jury of partisans, where representation can cross-examine witnesses. A society that instead encourages litigating murky claims of sexual assault in the kangaroo courts of the media and Senate hearings is an unhealthy society. A Senate star chamber full of grandstanding senators on both sides will not elucidate what happened four decades ago, when all people involved were minors, and the accuser is unclear on the details.

The Media Discussion Leaves Much To Be Desired

The Washington Post’s Robert Costa reported that Sen. John Cornyn had questions for the accuser:

It is true that Ford says she can’t remember when the alleged incident was, saying only the year it might have been. She says she doesn’t know the location of the incident either. She also doesn’t remember how she came to be at the party or how she got home. But she does say she remembers several of the people who were at the party.

Therefore, many questions need to be answered about the allegation, considering the Supreme Court nomination sits in the balance. You can’t establish a precedent where anyone can make an unverifiable and murky claim against another person to kill his nomination and career. Presumably if the allegation is enough to keep Kavanaugh off the highest court, it should be enough to remove him from the second-highest court in the land as well.

Here’s how CNN’s Chris Cillizza responded to the search for answers:

In fact, asking questions is not dangerous at all. It’s vitally important. Journalists should do more of it, instead of giving marching orders for Democratic partisans and uncritically accepting their narratives.

The Atlantic’s Caitlin Flanagan usually writes good and important pieces. She was widely praised for writing in “I Believe Her: When I was in high school, I faced my own Brett Kavanaugh.”

Flanagan writes of a man who attempted to rape her in high school, and how she came to forgive him. As a result of this experience, though, she finds it easy to believe that Kavanaugh is an attempted rapist. This is roughly akin to saying that since a black man robbed her family, she finds allegations against unrelated black men to be believable.

Oddly, Flanagan says the 2012 notes from a therapist — which don’t mention Kavanaugh but do mention four men assaulting Ford, contra Ford’s current claims — sealed the deal for believing her claims. The New York Times’ David Brooks found this argument convincing and worth reading in order to make up one’s mind about Kavanaugh:

The piece led the New York Post’s Seth Mandel to say that Kavanaugh’s nomination was dead in the water:

MSNBC and CNN truncated a video of Kavanaugh discussing former classmates at Georgetown Prep who went on to graduate from Columbus School of Law, where he was speaking. He added a joke about how what happens at Georgetown Prep stays at Georgetown Prep. CNN’s Acosta spun the edited clip as nefarious.

MSNBC’s Lawrence O’Donnell tweeted that allegations of sexual assault are the same thing as convictions:

If you take sexual assault seriously, if you take due process seriously, media behavior in this moment needs to be vastly improved.

This Is Unjust For The American People

Republicans currently control the Senate and the presidency. The president was elected in large part because he promised to nominate Supreme Court justices who will uphold the Constitution. Many Republican senators were elected for the same reason. Voters who made these decisions seek justices who are originalists on constitutional questions and textualists on the law.

Since his surprising victory, elements of the Resistance have, well, resisted everything Trump does. When Kavanaugh was nominated, many Democrats announced that they would never vote for him and would do whatever it took to delay and fight his nomination.

It is tough to lose elections, and deal with the consequences of losing elections. Much of Washington, D.C. — in both parties, to be honest — has refused to accept the previous election.

Feinstein’s behavior is not the behavior of someone who seeks justice for a victim of sex assault. It is the behavior of someone who seeks to prevent a Republican president from filling a vacancy with a qualified candidate. The American people have a right to elect a president who fills vacancies on the court. It is one thing to keep a precedent of not filling vacancies in the last few months of a presidency. It is entirely another to establish a precedent that unverifiable allegations can indefinitely prevent the filling of a seat.

The American people elected Donald Trump to fill these vacancies. Delaying tactics that are not about seeking or obtaining justice should not be rewarded, particularly when they involve the destruction of reputations and careers without sufficient compelling evidence.

Mollie Ziegler Hemingway is a senior editor at The Federalist. Follow her on Twitter at @mzhemingway
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