The Implications of the Kavanaugh Testimony on the Future of American Politics

This past Thursday, the Senate Judiciary Committee held a public hearing to assess the recent allegations made against Supreme Court nominee Brett Kavanaugh by Dr. Christine Blasey-Ford. Partisanship has been at an all-time high since the retirement of Justice Kennedy this past July, especially with the realization that President Trump would be able to nominate two Justices before the midterms this November. Since then, both Democrats and Republicans have been arguing over the believability and credibility of the actors involved in Dr. Ford’s allegations. These past months, believability and partisanship have taken center stage. However, we should only focus on the credibility and corroboration of the statements of the parties involved as well as place an emphasis on due process.

Believability only matters in the eye of the beholder. Dr. Ford gave a very emotional statement to the committee — understandable for a person claiming they were sexually assaulted — and came off as very believable. Judge Kavanaugh was extremely fiery and blunt in his statements, reasonably so since he’s maintaining his innocence. Both Ford and Kavanaugh have their reputations and careers at stake in this process, so what now?

The greatest point of contention in this hearing is whether Dr. Ford and her allegations are credible. Dr. Ford made statements to her psychiatrist in 2012 alluding to Kavanaugh and detailed information about the night of her alleged assault. The question is whether she remembered it as accurately as she claims. Human memories are not pictures of events, they are malleable. Similar findings have been reached by numerous psychological and criminological studies, including findings from the National Research Council and supported by statistics from the National Registry of Exonerations. Considering this and numerous cases of false witness identification, like the case of Ronald Cotton (who was incarcerated for the rape of Jennifer Thompson, who claimed at the trial she could never forget the face of her attacker, but was later exonerated thanks to DNA evidence), we must acknowledge victims can mistakenly identify their attackers despite repeated assertions. More than 35 years have passed since the alleged event and numerous variables can contribute to false eyewitness testimony, like suggestibility and retrograde of memory. Additionally, Ford stated she was intoxicated at the time of the event, as was Kavanaugh.

Other questions also remain. Kavanaugh was previously serving on the second highest court in the nation, so why did Ford decide it was best to speak out when he was nominated to the Supreme Court? Second, there have been 6 in-depth FBI background checks of Brett Kavanaugh to date and none of them have turned up allegations of sexual assault or sexual deviancy. Would an investigation turn up some new, corroborated testimony or would it come back to the same conclusions as before? Especially considering this is not a criminal investigation, therefore the FBI scope would be limited and could not investigate more than what the Judiciary Committee has already done. Moreover, we still don’t know the complete conversation and allegations Dr. Ford made in her original session with her psychiatrist, due to Ford claiming medical privilege. Are those allegations made in 2012 entirely consistent with her allegations made now or are there discrepancies? Furthermore, Dr. Ford and her team of lawyers cannot corroborate her story of events. Witnesses to the event, like Mark Judge and Leland Keyser, have denied Dr. Ford’s account of the events that night.

Coming away from the eight-hour hearing on Thursday, I thought it was highly partisan and unproductive with as much dramatic flair as an episode of “The Days of Our Lives”. This was unsurprisingly reflected in the polarized committee vote after the hearing; not a single Democrat voted in favor of Judge Kavanaugh being appointed and not a single Republican voted against him. We need to ask ourselves what the purpose of a hearing like this should be; should it be about the believability of an accuser and the accused or should it be about whether someone is capable enough to serve on the highest and most prestigious court in the land? In other words, was the process of how the hearing transpired correct?

The purpose of holding a Senate Judiciary hearing is to assess the capability of a nominee, essentially a job interview. In this case, the nominee should have unequivocal knowledge of the Constitution as well as interpret cases through the lens of constitutional textualism, as opposed to a subjective interpretation or a subversive view of the laws of this nation. From the beginning of the hearings this approach was not taken and both Judge Kavanaugh and Dr. Ford have been caught in the crossfires of partisan politics and have been extremely traumatized by the events taking place. After Dr. Ford’s identity was leaked, her and her family received death threats; Judge Kavanaugh and his family have also received death threats among other consequences, such as having to discuss his high school sex life on national television and being scorned incessantly for allegations that might not even be true.

If someone of Harvey Weinstein’s character were assessed in a hearing like this, considering the consistent pattern of despicable behavior in his adult life, this massive character flaw would probably affect his critical thinking and interpreting of a judicial case. Let’s entertain for a moment that Dr. Ford’s allegations are true, and a 17-year-old Brett Kavanaugh pinned down Christine Blasey-Ford to a bed and groped her at a high school party. This, if true, is obviously a case of wrong behavior as well as poor judgement, but this also allegedly happened during high school. Throughout his professional career, Judge Kavanaugh has been highly regarded by his peers and has earned respect during his time on the Court of Appeals for the past 12 years. Unlike someone with a pattern of corroborated abuse of power and moral depravity like Harvey Weinstein, up until the past few weeks, there has been no suggestion of a pattern of behavior to disqualify Kavanaugh from the Supreme Court. There has yet to be an instance of substantiated behavior that would suggest Judge Kavanaugh is unfit to serve as a Justice on the Supreme Court beyond allegations of poor judgement that possibly occurred in high school. The question now is whether that alleged instance is enough to affect his judgement and his ability to serve.

This is an incredibly difficult stance to take in the #MeToo era. While I think victims have the right to be heard and to seek justice, the “search and destroy” attitude taken by so many individuals in mainstream politics has gone too far. With someone who has a father, male relatives, male friends and colleagues, I don’t think their lives and careers should be ruined by an unsubstantiated claim of sexual misconduct or assault. I want there to be a place for due process and equal treatment in the law as well as basic understanding and agreement of what those things look like and how they should be practiced. Thursday’s Senate hearings were not held to the reasonable standards we as citizens and voters should demand of our representatives. Civility and due process should triumph over believability and partisanship.

Rebecca Rinaldi is a fourth year Criminology, Law and Society major. She can be reached at rinaldir@uci.edu.