This post comes from Las Vegas attorney Jessica Brown. It is used with her permission.
Today was not a confirmation hearing, it was “political theatre.” We hear that phrase frequently, so let me explain what it means. A confirmation hearing is called to confirm a nominee after the FBI and other agencies have gathered facts about that nominee. The Senators comb over the materials given to them and then convene a hearing to question the candidate about those materials. By the time the hearing is convened, the Senators usually have their minds made up and the hearing is mostly a formality. That did not happen today. Instead, the Republicans staged a meaningless mock-trial. They did this in order to make it seem like Dr. Ford had the burden of proof to show that Judge Kavanaugh sexually assaulted her. But the Senate is not a Court, and Dr. Ford had no such obligation.
An actual criminal prosecution imposes the burden of proof on the state. Before a trial, a prosecutor spends many hours and days gathering facts and evidence in order gain a conviction of a defendant for a serious crime. None of that happened here. The FBI did not investigate the allegations, and none of the attorneys prepared arguments based on the facts today.
Instead, the Republicans on the Committee handed-over their confirmation responsibility to a novela-type drama production. They handed over questioning a Supreme Court nominee to a sex-crimes prosecutor, Ms. Mitchel. The purpose of having Ms. Mitchel was three-fold. First, they wanted to make this look like a courtroom in order to show that Dr. Ford was not credible and that Judge Kavanaugh was being unfairly and almost brutally maligned. Ms. Mitchel’s questions did not matter. What she asked did not matter because the Senate is not a court and the outcome of the confirmation process is already pre-ordained. The Republicans will vote to confirm him regardless.
Second, Mitchel was there because the Republicans needed to present themselves as victims. They are going to say “we can’t ask the questions because then Democrats will label us ‘bad-men’. It’s so unfair!” The Republicans are, therefore, the victims here, not Dr. Ford.
Third, the Republicans hoped to show that Dr. Ford is hysterical and uncontrolled. That her memory was faulty, that she is simple, and that she is disjointed. Senator Grassley and many other men on the Senate Judiciary Committee masterfully did that to Anita Hill. They made her look like a sex-deranged, obsessive freak. The Republicans failed to do that to Dr. Ford today.
Dr. Ford appeared sincere and poised. To be fair, this is a different time, a different culture, and, significantly, Dr. Ford is not black. These are important factors. As a culture, we are now more aware of the ways in which women are maligned when they simply want to speak about the horrible wrongs that have been committed against them (us). And, the intersection of race and sex weighs heavily against black women in the public consciousness in a way that it does not for white women.
Make no mistake, what happened to Anita Hill made today possible – to make it so that a woman could simply state what had happened to her without being publically humiliated and shamed. More women ran for office after the Clarance Thomas confirmation hearings because of the way Anita Hill was treated, and Diane Feinstein made it a point to get on the Senate Judiciary Hearing. In my own state, Nevada, Senator Cortez-Masto blocked the confirmation of a prominent attorney for an Article III judgeship because he had been found to have retaliated against a pregnant attorney when she complained about discrimination in the office of the federal prosecutor here. I hope that it does not take another 30+ years to get good, honorable, smart, SCOTUS nominees now that women are more intimately a part of the judicial nomination process.
As more women take positions of power, the judiciary will change. Entitlement and privilege will still be a problem, and meritocracy is not a what people have assumed it is, but putting women in positions of power will help to create a judiciary, and therefore a culture, that does not excuse violence against women.
As for Judge Kavanaugh, he also failed. His job was to garner “Himpathy.” Himpathy is the undue sympathy and empathy given to privileged men. Senator Graham said that what Kavanaugh had been through these past two weeks “shook his core.” Nevermind what Dr. Ford had suffered through 35-years of trauma. While every Republican said that Ford was probably misremembering details, no Republican made the same statements to Kavanaugh who had admitted he was drinking. While Kavanaugh was trying to appeal to other white men (I like beer! I’m just like you!), to most of us he just looked out of control.
It is also important to note that Kavanaugh may be being honest here. He may not remember the incident. Many men probably don’t remember when they have assaulted women because this type of assault does have not corollary for them and thus has no meaning for them. Having a date force herself on you or coerce you does not happen to the vast majority of heterosexual men, and they do not feel powerless in physical proximity to women, so sexual assault does not make an impression on their brains. Many men have no idea how exhausting it is for women to manage the anger of men around them. Judge Kavanaugh showed much of that type of narcissistic anger – the type of anger that would cause the women around him to immediately cater to him out of fear – when he shouted and screamed today. (See picture posted below. The reaction of the women is fear more than disgust.) Simply put, because it does not happen to them, it does not happen at all in the public conscious and the public stories they control. But, that does not mean men who cannot remember they sexually assaulted women should be judges. It just means they do not remember the trauma they have caused and they do not care.
Today Judge Kavanaugh convinced the public that he is pompous, entitled, and inarticulate. Most strikingly, he showed just how irrational, distempered, and unprepared he is. For that reason alone, he should not be on the highest court in the country. Meritocracy frequently fails us when it promotes men like Judge Kavanaugh to the highest positions of moral and actual authority in the country.