Brett Kavanaugh: Thoughts on a Story That May Never End

While Brett Kavanaugh has been confirmed as a justice on the Supreme Court, one assumes the controversy over his nomination will go on for a long time (forever-?), so it is probably not too late for me to make a few comments.

First, there is the question of whether we must automatically “Believe Women,” as a full-page ad said in The Wall Street Journal (and probably lots of other papers).¹  With respect to this question, Megan McArdle’s column in The Washington Post on Susan Collins’s vote on now-Justice Kavanaugh’s confirmation, talked about some things I hadn’t thought of before:

“Women know, in a visceral way that men never can, what it is like to live your life in consciousness of a single, inescapable fact: that virtually every man you meet is capable of physically overpowering you and taking what you won’t give them freely. We also know that if some man attacks us, it is likely to be in a private place, with no witnesses, and that the physical evidence will often be little different from the aftermath of consensual sex.

And so we know that our safety inescapably rests on two fragile foundations: the goodwill of those men who refrain from doing what they could; and if they don’t refrain, our ability to persuade strangers to believe us rather than our attackers.”

But “Believe Women” can’t mean that women always tell the truth.  Ms. McArdle says this, too:

“We [i.e., women] know, alas, that we sometimes give in to the human temptation to lie, and that we have only a normal human conscience, not some sort of magical feminine guardrails that keep us from lying about serious things such as rape. We’re all too aware that we make mistakes, as humans do, and that sometimes those mistakes are grave – including, yes, the possibility of being mistaken decades later about an attacker’s identity.”

Sadly, this point has been made in cases like the Duke lacrosse team and the Rolling Stone article about the University of Virginia.  The women in those cases lied.  It would have been wrong to “Believe] Women” in those cases.  Which is one of the reasons those cases were so unfortunate.  They made it easier for people to not believe women who should be believed.  But they also showed us that nothing is one hundred percent.

Which brings me to a point that many people will probably disagree with.  We need to understand the position of women and why it is so hard for them to report these attacks.  The situations can be embarrassing.²  Women worry that no one will believe them.  They can be harassed, shamed, and even blamed if they report an attack.  I understand corroboration often isn’t available.  Still, at some point, after some number of years, it may not be appropriate to act upon charges and/or memories that cannot be substantiated

Those who are accused have rights, too.  Fairness goes both ways.  We need to respect the courage of women who report attacks.  But we also need to remember that not all women tell the truth all the time and that memories can play tricks on us.  The fact that a particular person seems credible doesn’t mean that what they are saying is true.³

I do not mean to attack Dr. Christine Blasey Ford’s integrity or the fact that she honestly believes what she said about Brett Kavanaugh.  However, as David Bernstein, a professor at George Mason School of Law, said at The Volokh Conspiracy: “Under the best of circumstances, a thirty-two-year time gap before an allegation surfaces would raise questions about the accuracy and completeness of complainant's memory.”

Professor Bernstein continues:

“In the absence of eyewitnesses or other corroborating evidence, I would want to know a lot more about this, from the original Washington Post news story reporting the allegations: ‘Years later, after going through psychotherapy, Ford said, she came to understand the incident as a trauma with lasting impact on her life. ... She also said that in the longer term, it contributed to anxiety and post-traumatic stress disorder symptoms with which she has struggled.’

This raises many questions. What did she originally tell her therapist? Who was her therapist? Is her therapist known as a cautious clinician, or someone who believes in recovered memories, or what? What modalities of treatment did her therapist use? In particular, did she use hypnosis to either help Ford recover the memories, to render them less traumatic, or otherwise? When was Ford diagnosed with anxiety and post-traumatic stress disorder? What other trauma(s), if any, led her to suffer from PTSD?”⁴

But, we are told, the hearings on Brett Kavanaugh’s nomination were not a criminal trial.  They were just a job interview.  I agree they weren’t a criminal trial, but they were a lot more than a mere job interview.  In a job interview, if you don’t get the job, you can apply for other jobs or go back to your old job.  That wasn’t possible for Brett Kavanaugh.  If he was defeated for the Supreme Court on the grounds he was a sexual attacker (or lacked proper judicial temperament {see below}), was he really going to be able to continue as a Court of Appeals judge?  It is one thing for Douglas Ginsburg to continue on the Court of Appeals when his nomination to the Supreme Court was withdrawn because of reports he had used marijuana or for Merrick Garland to continue on the Court of Appeals when he didn’t even get a hearing on his nomination.  But would somebody whose nomination to a position on the Supreme Court was defeated in the Senate because he was a sexual attacker be able to stay on the Court of Appeals? 

Eventually, some of those who opposed Judge Kavanaugh’s nomination said they were voting against him because he hadn’t exhibited the proper judicial temperament during the committee hearings.  Even though Judge Kavanaugh was, in his own view, being wrongly accused of being a sexual attacker; even though his family and friends were being told he had violently attacked a woman 30+ years ago; even though he was not only to be denied a seat on the Supreme Court, but likely to be forced out of his current job and perhaps be hard pressed to get a new one.⁵  In spite of all of this, he was somehow expected to be restrained in his response.   

While one might argue that it would have been better if then-Judge Kavanaugh had been less aggressive or more judicial in his reply, it wouldn’t have mattered to the Democrats in the Senate.  They had already decided to vote against Judge Kavanaugh.  They had decided before the hearings started; they had decided before Dr. Ford’s charges were made public.  They were just looking for an excuse.  For some of them, it was “Believe Women.”  For others, it was that he didn’t have a proper judicial temperament.  But it in any case, it was just an excuse for what they had already decided to do.
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¹ Of course, many of those who tell us to “believe women” don’t think we should believe the women who accused Bill Clinton.
² According to Dr. Ford’s testimony, she apparently was at a party where alcohol was served when she was only fifteen years old.  (I believe the drinking age was eighteen at that point.)  In such circumstances it would be understandable if she didn’t want to tell parents about what happened at the party.  Or tell any of her friends about it for fear her parents would find out.
³ For example, former Nebraska senator Bob Kerrey said, of Bill Clinton: “Clinton’s an unusually good liar.  Unusually good.”
⁴ For a case study focusing on the hysteria that accompanied some of the child sex-abuse cases in the 1980s and 1990s, see Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times. 
⁵ Justice Kavanaugh has already had to cancel the seminar he taught at Harvard because of protests.  
      Similarly, I wonder if any big law firm would hire him.  Paul Clement was Solicitor General, the number three position in the Justice Department, under George W. Bush.  After leaving the Bush administration, Mr. Clement took a position at King & Spalding (“K&S”), a big Atlanta firm.  While with the firm, he handled cases for a number of clients in arguments before the Supreme Court.  Until, that is, he agreed to defend the Defense of Marriage Act (“DOMA”) in a case.  When it became public that Mr. Clement was going to defend DOMA, the protestors came after K&S.  A group ironically called the Human Rights Campaign (apparently being able to have a lawyer defend your position in court is not a human right) threatened to send letters to K&S’s clients and to top law schools claiming that K&S was “promot[ing] discrimination.”  At this point, the firm folded, and said they would drop the case.  Mr. Clement didn’t fold, however.  He had agreed to represent this case, and he wasn’t going to quit.  He resigned from K&S and went to another firm so he could continue to handle the case.  (See here and here.)  Still, given how K&S caved in to pressure when they were threatened, what law firm or company would hire Brett Kavanaugh when massive complaints would be made about the firm for hiring him?