Kavanaugh Accusation: No Defense Or Due Process In The "Me Too" Era?
The nomination of Federal Judge Brett Kavanaugh has been contentious since President Trump announced him as his nominee to the U.S. Supreme Court to fill the seat soon to be vacated by Justice Anthony Kennedy. Despite passing through six FBI background checks, a unanimous "well-qualified" rating by the American Bar Association, even an endorsement from former President Bill Clinton's former personal attorney: His nomination process has been a severe battle.
In an effort to derail Kavanaugh from taking a seat on the nation's highest court, several Democratic Senators and activists have accused him of lying under oath, staged loud protests throughout his nomination hearing, selectively edited video from the hearing to accuse him of taking a position in which he was simply repeating the words of the plaintiff in a legal brief, conducted political grandstanding, and now his nomination is facing a bigger challenge: An accusation of sexual assault.
The accuser, Palo Alto University Professor of Psychology Christine Basely Ford, PhD., claims that Kavanaugh groped and tried to kiss her at a party 36 years ago when she was 15 years-old and he was 17 years-old. Dr. Basely Ford sent a letter to California Senator Dianne Feinstein making the accusation at the end of July.
Senator Feinstein, who sits on the Judiciary Committee which held the hearing, did not question Kavanaugh about the accusation nor did she bring it up at any time. Shortly after the hearing concluded, Senator Feinstein announced she had the letter, which she forwarded to the FBI for investigation.
After reviewing the letter, the FBI sent it to the White House. The White House then sent the letter to Congress. During this time, the identity of Dr. Basely Ford was withheld for privacy concerns. She then revealed herself in an interview with the Washington Post, which published that story on Sunday.
Kavanaugh has firmly denied the accusation, and says that he has no recollection of being at that party. Any mention of the alleged incident only first came to light in 2012, when a couples therapist was informed that Basely Ford had told her husband about being attacked and/or molested by boys from an "elite private school."
Dr. Basely Ford has said she does not remember where the party was located, and has also been unclear on exactly when the alleged incident occurred. She has now established that it happened in 1983.
She does say that another boy was in the room with her during the alleged assault, identified as Mark Judge. When first contacted about the accusation, he said that he had no idea what she was talking about.
However, Judge also authored a book about getting "blackout drunk" during his younger years and his recovery from alcoholism later in adulthood.
The accusation also comes during changing times in the U.S., as the "Me Too" and "Women's March" movements have given a lot of attention to the prevalence of sexual assault and harassment. It has also informed many people about the importance of taking the victims of sexual assault and harassment seriously, and with care.
At the same time, these movements have also raised the stakes in politics in several ways. It has raised the stakes in the politics of the country, at the workplace, at places of worship, and in our schools.
Several men in the entertainment industry, most notably Bill Cosby and Harvey Weinstein, were brought down by charges of rape and harassment. Men in journalism, business, and politics have been forced to resign under revelations of terrible behavior. What many have noted in all of those cases is a pattern.
So far, in Kavanaugh's case, no pattern has emerged. While it could take time for a pattern to emerge, there is still one accusation that contains no evidence.
It is a troubling place to be, and all because of the uncertainty. We are now much more steadfast in our resolve to take sexual assault and harassment seriously. At the same time, the root of our society in the United States is held together by the rule of law.
The U.S. Constitution clearly establishes the rule of law.
Ironically, the debate swirling around a man who can ultimately rule on the law is at risk for being denied his place to do so outside of the rule of law. Specifically, the bedrock of the rule of law: Due process.
The attacks on Kavanaugh via social media from citizens, activists, some politicians, some in the media, and plenty of anonymous individuals using social media have been vicious. They have sealed his fate and have determined him guilty.
ABC News' Chief Political Analyst made the following disturbing declaration on Twitter Tuesday morning:
Tuesday afternoon, Hawaii Senator Mazie Hirono, also a member of the Senate Judiciary Committee, told cameras this:
However, the rule of law in the United States of America is clear: The U.S. Constitution clearly established that in this country, no one could be, "deprived of life, liberty or property without due process of law." (5th Amendment).
In 1868, the 14th Amendment was ratified, clarifying this with the establishment of the "due process clause", which states in part, " [N]or shall any State deprive any person of life, liberty, or property, without due process of law."
After the dust settled from Feinstein's bombshell announcement and the Washington Post story, the country has been divided on whether Kavanaugh is fit for the Supreme Court.
The decision now lies solely with members of the U.S. Senate. First, the Judiciary Committee must vote to approve placing his nomination for a vote of the full Senate. With several key Democrats in the Senate facing close re-elections in more Conservative, red states, their vote could make or break their chances in November. The stakes are high for them as well.
Republicans have keyed on the timing of the release of the accusation, and say that Democrats are simply trying to 'run out the clock' so that any vote on Kavanaugh will not be held until after the mid-term elections are done. Democrats believe they have very good chances to reclaim the Senate and then block any nominee President Trump sends for approval.
Political analysts say that all of this is "payback" for the GOP's successful blocking of President Obama's nominee, Merrick Garland, to replace Justice Antonin Scalia. Senate Majority Leader Mitch McConnell successfully held off a vote to approve Garland until after the 2016 Presidential Election.
President Trump was then able to nominate and place Neal Gorsuch on the court.
However, should an individual as credentialed as Kavanaugh, and who has also been vouched by many others as being an outstanding person and citizen be denied because of one accusation that cannot be proven and appears to be politically timed to prevent his placement on the high court?
Republicans on the Senate and President Trump have said that they take the accusation seriously, and that she should speak to the Judiciary Committee. Despite numerous requests, she has not responded to Senate Judiciary Committee Chairman Chuck Grassley. Grassley also says that Democrats have refused to help get her to testify.
Judge Kavanaugh has agreed to testify in his defense.
In the new era of #MeToo awareness, it appears that most of the vitriol is coming from the left side of center. The right is being accused of vitriol against Dr. Basely Ford. President Trump has said (via White House Advisor Kellyanne Conway) to take her seriously and to not attack her.
Utah Senator Orrin Hatch has been attacked for saying he believes Kavanaugh and thinks Dr. Basely Ford is "mistaken" in her accusation that he was her attacker. Hatch also told reporters of the accusation, “If that was true, I think it would be hard for senators to not consider who the judge is today. That’s the issue. Is this judge a really good man? And he is. And by any measure he is.”
This highlights the troubled place we find ourselves. While we want to ensure that victims of sexual assault are treated appropriately and given their opportunity to see their attacker convicted and punished, there is still a legal process in the United States of America.
It is important to maintain the rule of law and respect for the rule of law, even as we struggle with strong emotions tied to certain cases.
If Judge Kavanaugh is not allowed to become Supreme Court Justice Kavanaugh only because of an accusation with no substantive evidence, it will set a serious precedent and consequence for the Republic.
The aftermath will be that any accusation will be enough to disqualify, remove, and/or destroy anyone without due process if a plurality opposes that individual.