Jamil Smith: How Can We Trust Brett Kavanaugh?

We appear to have at least one liar on the Supreme Court. In 1991, Clarence Thomas repeatedly said “No, senator” when asked if he’d done any of the things that Anita Hill alleged: bragging about his penis, his sexual prowess, making specific references to pornographic films and so forth. He added, “If I used that kind of grotesque language with one person, it would seem to me that there would be traces of it throughout the employees who worked closely with me, there would be other individuals who heard it, or bits and pieces of it, or various levels of it.”

Neither the committee nor the Senate took Thomas up on his dare, but they should have. Reporting from that time and since has substantiated Hill’s claims, despite Republican allegations that she was the fabricator. Jill Abramson, the former New York Times executive editor who covered the Thomas confirmation hearings, made a thorough case for his impeachment in New York magazine this past February.

It has been 27 years since that debacle, one that is regularly hailed as the moment when Americans first confronted sexual harassment. (Perhaps that would be true if we were only speaking about men.) But just as Hill was then, women are still regularly called liars when they speak out. Sixty-three percent of rapes, for instance, are still unreported, according to the National Sexual Violence Resource Center — despite less than 10 percent of those reports proving to be false. Believing women when they say that they’ve suffered a sexual assault is not risky. It is erring on the side of caution.

But rape culture helps maintain the status quo. And on Monday, in advance of a possible federal investigation, yet another accuser is scheduled to testify before the Senate Judiciary Committee chaired by Republican Chuck Grassley of Iowa — one of the two Senators, along with Hatch, who questioned Anita Hill in 1991.

The hearing will come eight days after Christine Blasey Ford, a 51-year-old psychology professor at Palo Alto University, revealed to the Washington Post that she was the anonymous constituent who wrote to Sen. Dianne Feinstein in July alleging that Kavanaugh sexually assaulted her at a house party in the early 1980s. The details she included are specific and horrifying, noting that at one point she feared that Kavanaugh “might inadvertently kill me” as he held his hand over her mouth. Ford both passed a polygraph and has corroboration from her therapist’s notes, her husband, and a friend ,whom she told about the attack in 2017. Kavanaugh has been steadfast in his denials, saying on Monday, “I have never done anything like what the accuser describes — to her, or to anyone.”

I believe Ford, as there is no credible reason to doubt her. But while I agree that her testimony before the Senate is necessary, this will be less a hearing than a debate between a woman who claims that she was assaulted, and a man who claims not only that he didn’t do it, but that he can’t recall even being where the alleged event happened. Neither can his friend, Mark Judge, who Republicans have not yet called to testify. That is curious, given his essential role in the story Ford recounts — his alleged piling onto Kavanaugh during the assault, Ford says, allowed her to escape. Many Republicans, even White House adviser Kellyanne Conway, have said that Ford should be heard. What they aren’t saying, outside of Sen. Jeff Flake (R-AZ) and a few others, is that they are interested in the truth. That makes sense, given that the Monday hearing is being expedited to save the candidacy of yet another Supreme Court nominee with an earned reputation for lying under oath.

Sen. Hatch has already begun questioning Ford’s veracity with much the same language as he did Hill’s account in 1991. “I think she is mistaken,” Hatch told reporters yesterday. “If that was true,” he said of the allegations, “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.”

I guess we measure things differently, senator, because really good men don’t seek to control the bodies of women and girls, whether at abortion clinics or at house parties. (Hatch also said that Kavanaugh told him he wasn’t even at the party, a strange denial if he did in fact make it, since no specifics about the date of the party and alleged assault have been made.)

Kavanaugh should withdraw his Supreme Court nomination to save us from enduring this charade, but he won’t. Instead, Republicans will likely attempt yet another character assassination of a woman who has nothing to gain from speaking her truth. Kavanaugh has everything to lose by lying, and yet he has a considerable history of not telling the truth.

Accepting that, Kavanaugh’s strategy seems odd. I’m not talking about his obvious obfuscation concerning abortion rights, nor his efforts to downplay any threat that his appointment poses to them. That could be just him playing possum in a hearing, which is hardly unprecedented.

Democrats have persuasively argued that Kavanaugh lied to the Judiciary Committee in 2004 and 2006 during prior confirmation hearings for his current seat on the D.C. Circuit Court of Appeals. Kavanaugh claimed to know nothing about torture or the NSA’s warrantless wiretapping in the Bush years, which was a lie. Kavanaugh also denied receiving stolen Democratic memos pertaining to Bush’s judicial nominees during his time working in the White House; during the Supreme Court confirmation hearing about two weeks ago, Sen. Patrick Leahy (D-VT.) pointed to emails that contradict Kavanaugh’s testimony.

Perhaps the most brazen lie of all was his claim to not have been involved in handling the judicial nomination of the stridently anti-abortion judge William Pryor to the 11th Circuit, when emails revealed that he was deeply involved in selecting and guiding Pryor through the Senate confirmation process.

Yet, if you believe folks like Hatch, Kavanaugh is the victim. Hatch already labeled Ford as “mistaken” and “mixed up” — perhaps he’s saving “hysterical” for Monday’s hearing. In 1991, he slandered Hill as “too contrived” and argued that her account was “so slick it doesn’t compute.” Translated, it means little more than “I don’t believe women.”  

Other Kavanaugh defenders have taken a different tack: even if the alleged incident happened as Ford described, Kavanaugh shouldn’t suffer any consequences for it.

Former Bush press secretary Ari Fleischer lamented that Kavanaugh might be blocked from a lifetime appointment to the Supreme Court because of “high school behavior.” Former Reagan campaign chairman Ed Rollins, the chairman of a pro-Trump PAC, told the Daily Beast that “if this is the new standard,” meaning whether or not you tried to rape someone in high school, “no one will ever want or be able to serve in government or on the judiciary.” A lawyer described as close to the White House told Politico that “if somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. We can all be accused of something.” It is easier for these men to accept a reality in which sexual assault allegations victimize them more than the act itself injures the survivors.

Undoubtedly, there are more rapes and other forms of sexual violence because of apologists like this, the men who act as though a penis entitles you to the benefit of the doubt. But even if they use those paleolithic arguments, it still doesn’t explain why a proven liar should be believed.

Writing Tuesday on the New York Times op-ed page, Hill offered thoughts on how to avoid turning this Monday hearing into a repeat of her experience. One of her recommendations: don’t rush it. But she also noted that while both Kavanaugh and Ford will be obligated to tell the truth, only the nominee has the “burden of persuasion.” In this latest chapter of the #MeToo era, we will see a different Senate Judiciary committee than in 1991, with a roster of women like Feinstein, Mazie Hirono, Amy Klobuchar and Kamala Harris — to say nothing of the men on the committee with a responsibility to assess these claims seriously.

They must do so, despite a president and a culture that tell us to mistrust women who accuse men of sexual misconduct. “You’ve got to deny, deny, deny and push back on these women,” Trump is quoted as saying in Bob Woodward’s new book. “If you admit to anything and any culpability, then you’re dead.” That is a model of masculinity that has worked for years, but one that is past its expiry date. Especially when you’re like Kavanaugh, applying for the most exalted job there is in jurisprudence.

I doubt that Republicans care about institutions like the Supreme Court beyond their ability to bend them towards their policy aims, but it is important that the American public can trust the judicial branch. Ideally, there would be no men on the Court — perhaps I should stop there — who have been accused of sexual assault and harassment. But regardless of gender, there can’t be justices who lie to us. Well before Ford’s accusations surfaced, Kavanaugh had given us definitive reasons to question his ability to tell the truth. Whether or not you think that he tried to sexually assault a girl in high school, he had already disqualified himself on account of his falsehoods. What does a man have to do to not be believed?