Judge likely to survive the blaze of publicity

Despite the #MeToo movement, Brett Kavanaugh’s Supreme Court nomination is likely to be confirmed after a desultory and incomplete investigation, writes Scott Lemieux

Judge likely to survive the blaze of publicity

Despite the #MeToo movement, Brett Kavanaugh’s Supreme Court nomination is likely to be confirmed after a desultory and incomplete investigation, writes Scott Lemieux

Christine Blasey Ford’s now-public allegations that she was the victim of an attempted sexual assault by Supreme Court nominee Brett Kavanaugh have had a striking and immediate political impact, with the US Senate Judiciary Committee delaying its vote on Kavanaugh.

Ford’s serious charges present a very close analogy with the allegations made by Anita Hill against her former employer Clarence Thomas during the latter’s Supreme Court confirmation hearings in 1991.

In the era of #MeToo, a great deal has changed since then. But a great deal hasn’t, and it seems likely that the result will be the same as 1991 — that is, the confirmation of Kavanaugh after a desultory and incomplete investigation.

For reasons the journalist Danielle Tcholakian recounts in detail, the Senate Judiciary Committee’s investigation into Hill’s charges was a disaster. Hill was allowed to testify but was subjected to hostile and sometimes offensive questioning by multiple senators.

“How sure can you expect this committee to be on the accuracy of your statements?” demanded Arlen Specter, then a Republican senator from Pennsylvania.

Utah Republican Orrin Hatch, who is still on the Judiciary Committee, asserted that Hill had been “coached” by special interests and made a ludicrous charge that Hill’s story had actually been taken from William Peter Blatty’s novel The Exorcist.

Conservatives outside of the US Congress worked even more aggressively to smear Hill (with charges that ringleader David Brock, then a right-wing reporter, later conceded were false.)

Most crucially, three women who wanted to corroborate Hill’s testimony were not allowed to testify before Congress.

Republicans were, however, far from the only bad actors during this fiasco. The Democratic Party was, after all, the majority party in the Senate, and future US vice president Joe Biden was in charge of the Judiciary Committee. He could have ensured that Hill’s charges received a full and fair investigation but did not.

Eleven Democrats ultimately voted for Thomas despite the lack of a full investigation into Hill’s charges, and despite the fact that the shift from Thurgood Marshall to Thomas would be one of the largest ideological swings in the history of the Court.

(Thomas was ultimately confirmed 52-48, the smallest margin ever for a successful nominee.)

And Ted Kennedy — who was instrumental to the 1987 defeat of Robert Bork, who with Thomas and other conservative judges would have almost certainly overruled Roe v Wade — was notably quiet during the proceedings, presumably because of his own history of behaviour with women. The unfair treatment of Anita Hill was very much a bipartisan affair.

The Democratic Party, at least, has changed. When charges of sexual harassment were made against Minnesota Senator Al Franken, he resigned under pressure from colleagues within his party.

He was replaced on the US Judiciary Committee by Kamala Harris, the first-term African-American Senator from California who aggressively questioned Kavanaugh during the initial hearing and has strongly supported Ford.

And while Democratic Senator Dianne Feinstein has received criticism from both left and right for not sharing Ford’s letter when she received it in July, there is no evidence that she waited due to political calculation or indifference.

In contrast to 1991, Democrats in general — up to and including Senate Minority Leader Chuck Schumer — have called for the process to be delayed and Ford’s charges given a full and fair investigation.

But Democrats no longer control the Senate, so whether Ford’s charges will receive a full investigation will depend on Republicans, whose representatives on the Judiciary Committee are all white men.

On Sunday, the committee and Ford’s lawyers agreed that Ford would testify before a Senate panel today. Kavanaugh, who has called Ford’s allegation “completely false,” has also agreed to testify at the hearing.

Likely influenced by what happened to Hill, Ford’s lawyers requested that the committee subpoena Mark Judge, a Kavanaugh friend who Ford has said witnessed the attack — a request Republicans have denied.

Committee members “have also refused to invite other witnesses who are essential for a fair hearing that arrives at the truth about the sexual assault,” Ford’s lawyers said in a statement.

It appears highly unlikely that Republicans will slow down the process further.

Judiciary Committee chairman Chuck Grassley has made it clear that there would be no additional FBI investigation of the charges; his counsel said it was the committee’s “non-negotiable right” to decide who would be allowed to testify.

In a recent New York Times op-ed, Hill called for a “fair, neutral and well-thought-out course” to investigate Ford’s charges, while also sceptically observing that “the committee has learned little from the Thomas hearing, much less the more recent #MeToo movement.”

Unfortunately, it looks like her scepticism will be justified, and again a Supreme Court nominee will be hastily confirmed without a serious investigation into very serious charges being made against him.

Scott Lemieux is a lecturer in the Department of Political Science at the University of Washington

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