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The Kavanaugh Hearing Makes a Mockery of the Process

It’s about political risk management, not a search for truth

September 26, 2018

On Friday at 9:30 a.m., less than 24 hours after Dr. Christine Blasey Ford testifies before the Senate Judiciary Committee, the panel is set to vote on whether to send Judge Brett Kavanaugh’s name to the full Senate for confirmation as a Supreme Court justice. Senate leaders have said they hope to hold a floor vote early next week. 

Nothing says “I will carefully consider what you have to say” to a sexual assault victim like giving her a few hours to tell her story and then, less than a day later, resuming a relentless drive to place the man she says attacked her on the Supreme Court. 

It’s been obvious for the last 10 days — has it really been only 10 days? — that Senate Republicans were prepared to discount virtually anything Ford might have to say. Scarcely two days after Ford first publicly described her alleged sexual assault by Kavanaugh, Senator Lindsey Graham (R-SC) dismissed the whole matter. “This has been a drive-by shooting when it comes to Kavanaugh," he told the Washington Post. “I’ll listen to the lady, but we’re going to bring this to a close.”

The committee’s top Republican lawyer handling judicial nominations let everyone know in a tweet that he was “Unfazed and determined. We will confirm Kavanaugh.” 

But completely ignoring Ford’s allegations and refusing outright to hold any hearings was never an option. The optimal outcome for panicked Republicans would have been for Ford to decline the committee’s invitation to testify. The committee opted for soft intimidation, hoping she would fold. Less than 48 hours after she went public, and even as she was fleeing her home in the face of death threats, the panel began imposing random deadlines. Had she been a white male social media billionaire, the committee would have spent months patiently negotiating an appearance. Or, if she were the CEO of a company in the midst of a major merger, she would merely inform the committee of the date she could come, and then the hearing would be noticed. Instead, Ford was essentially told when and where to be without regard to her circumstances. 

Ford did not fold. She agreed to testify. So Republicans had to concoct a simulacra of an impartial hearing. And that is what we will be treated to on Thursday. The hearing will proceed without the benefit of a preliminary, professional investigation from the FBI; without testimony from Mark Judge, the other person Ford says was in the room when she alleges she was assaulted; without the benefit of expert witnesses who know about trauma, memory, or sexual assault; and without providing senators adequate time to question the witnesses. 

Ever since Ford’s story upended Kavanaugh’s predestined ascension to the Supreme Court, the Judiciary Committee’s Republican majority has had a single goal: political risk management. The number one risk? More information. A straight-up “he said, she said” with only a swirl of additional, randomly gathered evidence and no expert advice — all filtered through Fox News — gives senators maximum room to defend a vote for Kavanaugh.

That’s why a professional, systematic FBI investigation had to be stopped. “[I]t is not the FBI’s role to investigate a matter such as this,” Sen. Chuck Grassley (R-Iowa), the committee chair, explained. Nonsense. This is entirely the sort of thing the FBI investigates during nominee background checks. The FBI regularly looks into a nominee’s history of alcohol consumption, drug use, spending habits, and more. They go all the way back to college or even high school when they investigate some matters. As the Brennan Center expert who ran investigations for the Obama White House has explained, if the Republicans had wanted an FBI investigation, all they had to do was ask.

Instead of commissioning trained investigators to carefully gather evidence and present it coherently to the committee, the public was treated to an unhinged, but carefully orchestrated, Twitter theory, offered by a conservative lawyer with ties to the Federalist Society and backed up by floor plans downloaded from Zillow, fingering a different student at Kavanaugh’s school for the alleged assault. Who needs the FBI when you’ve got an amateur CSI-Bethesda operative on speed dial?

The committee could have also called more than two witnesses. The most important would have been Judge, the other person Ford says was in the room. Judge sent the committee a letter asserting that he has no memory of the episode and that he does not “wish to speak publicly regarding the incident.” With that, at the direction of his lawyer, Judge skipped town and holed up at a friend’s beach house three hours north of Washington. 

Another set of witnesses could also assist the committee: Ford’s husband and therapist with whom she discussed the incident many years before Kavanaugh’s nomination. (Indeed, Ford’s husband, as well as three friends, on Tuesday sent sworn declarations to the committee saying Ford had previously told them about the alleged assault.) Or the committee might possibly benefit from hearing from experts on matters such as the delayed reporting of sexual assaults and the indicia of false reporting. There is simply no legitimate reason not to call Judge or many other witnesses, if the goal is to gather all the facts. 

The last piece of political risk management that will be on display Thursday is the use of Rachel Mitchell, a sex crimes prosecutor from Arizona, brought in by Republican senators to conduct questioning on their behalf. This “female assistant,” will “ask…questions in a respectful and professional way” according to Senate Majority Leader Mitch McConnell (R-Ky.). The unspoken implication is that the male senators were likely to ask questions in a disrespectful and unprofessional way. More to the point, the optics of 11 male senators asking skeptical questions of a sexual assault victim was not a good look on the Republican party. 

Presumably, the Republicans will yield all of their question time Thursday to Mitchell. How much time? Grassley has decreed each senator will have a whole five minutes to ask questions. That means 105 minutes of questions for Ford, then 105 minutes for Kavanaugh. Less than four hours of so-called inquiry now stand between Kavanaugh and his date with a Senate vote.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Image: Getty)