There should be an investigation.
Sorry: I assume that I don’t need to give any more explanation than that of my topic here; but in truth, there are several things happening right now that could lead me to call for an investigation, so I should certainly give my audience a little more than that.
There should be an investigation into the accusation of sexual assault made against Brett Kavanaugh.
There. Is that clear enough? Mmm, perhaps not; I know this story has exploded into unavoidability, but I also know that many of my fellow citizens, and many interested parties around the world, make a point of staying away from the mass media and the political news cycles; those people may need more information. I don’t expect that any of them read this blog – not sure that anyone will read this blog once they have realized what my subject is – but in case they do, I should explain.
Judge Brett Kavanaugh, currently an appellate judge on the U.S. Court of Appeals for the Washington D.C. District, has been nominated by President Trump for the seat on the U.S. Supreme Court vacated by Justice Anthony M. Kennedy. Judge Kavanaugh is on the fast track to confirmation, partly because he’s a fine conservative judge with excellent experience and credentials, and therefore a good choice for the seat (if you don’t mind the fact that he’s a perfect fit for the mold of Republican Honky, having grown up wealthy and privileged and white, attending private schools and Yale, working for the Bush White House, et cetera, et cetera. He’s even married with two children whom he coaches in softball, for God’s sake. He’s a Republican Ken doll. Does that make him a good or bad choice for the Supreme Court? Honestly, I want to help my party stop playing identity politics, because identity politics are bullshit, and so I’m going to say we should let Judge Kavanaugh’s stereotypical markers go, and focus on his actual record of words and deeds), and partly because the Republican-controlled Senate wants to fill Justice Kennedy’s seat before the November elections, when the Democrats may win control of the Senate, and may then cast out any Republican judicial nominations while chanting “Merrick Garland! Merrick Garland!”
I have to say: I had this splendid and insane idea. What if the Democrats, should they win the elections in November and take control of Congress, could call Merrick Garland for a hearing, and then vote him into Kennedy’s seat? I mean, he was nominated for the Supreme Court by a President, and he wasn’t voted down by the Senate, simply never given a chance to be considered. Could they go back and pull his nomination out of the cold case files, so to speak, dust him off and put him through the process now?
The answer is no, sadly. His nomination officially expired when the 114th Congress closed in January of 2017. Too bad. Think how sweet that would have felt. It might even have precipitated the second civil war, and about time, I say. I don’t mean that.
Anyway. Judge Kavanaugh was going forward with his successful bid to become an entrenched 30-year bastion of conservatism, when suddenly the car went off the road and crashed down a hillside. It is currently flying, in super slow motion, over a cliff’s edge; it is not clear yet whether it will flip over, smash into the ground and explode in red-white-and-blue flames, or if it will glide perfectly onto another roadway on the other side of the narrow chasm it may currently be flying over. That is to say: Kavanaugh’s nomination has suddenly gone awry, but it may still straighten out and land him in a seat at the Supreme Court.
The reason the Kavanaugh car went off the road is a woman named Christine Blasey-Ford, Dr. Christine Blasey-Ford, who has stated publicly that, when she was a teenager known simply as Christine Blasey, she was assaulted at a party by a drunken 17-year-old boy who pushed her down, lay on top of her, groped her and kissed her, tried to take her clothing off, and when she tried to scream for help, he put his hand over her mouth to silence her. That drunken assault was committed, according to Dr. Ford, by Brett Kavanaugh.
Okay. Cue outrage. Cue insanity. Cue tens of millions of people all saying, “Oh, shit.” I know I certainly did, several times, when I first heard this story after it broke. But after the outrage and insanity and the Oh-Shits have passed, we now have to deal with this situation. And the question is, what do we do?
It’s not fair to treat this as a special case because of the political ramifications. If Dr. Ford’s story is true, then she was attacked by a drunken savage, who may quite possibly have raped her had his equally drunken buddy, a man named Mark Judge, not jumped laughingly atop the two while they struggled on the bed, knocking all three to the floor and enabling the young woman to get away. (I have to say, though maybe I shouldn’t, but I have to: that’s the part that makes me think Dr. Ford’s story might be true exactly as she said it. That is not the kind of act someone would make up, because it’s so absurd, so entirely dumb; it turns an attempted rape into a bad Three Stooges skit. It makes the rape attempt seem less serious, which would undercut the narrative if Dr. Ford wanted to invent an attack to use as a weapon. But it is also clearly something that a drunk-ass teenaged boy would do. I also think it is something that a guy would do if he thought his buddy was taking a joke too far, and he suddenly got disturbed that maybe this wasn’t a joke, to his buddy: according to the story Dr. Ford recounted, Mark Judge was laughing wildly the whole time, and he jumped on top of them twice, only knocking them off the bed the second time. I can quite easily see that young man doing that intentionally to make Kavanaugh stop, maybe after seeing Kavanaugh do something that wasn’t playful and funny in that Ha-ha-we’re-drunk-guys-assaulting-a-girl-but-not-really kind of jokey way. Maybe putting his hand over her mouth after she screamed? However: I also have to note that there is no indication other than Dr. Ford’s testimony that the two guys who carried out this, to me, realistic-sounding attack, were actually Brett Kavanaugh and Mark Judge. So I believe the event happened. I do not know for certain if Kavanaugh was the one who did it. That depends on whether we believe Dr. Ford. Is it believable that she would forget who did this to her? It is not; trauma creates strong memories, and she knew both boys’ identities at the time. Is it possible, since memory is often deceptive, that she has mixed up the identities of her attackers in the intervening years? It is possible, and it is also possible that Dr. Ford is lying intentionally. So I can’t be sure; there is a reasonable doubt. Forgive the ridiculously long aside.) Whether that savage would-be rapist is now a judge, or nominated for the Supreme Court, or if he was just some dude who drove a bus or sold insurance or ran a car wash would make no difference. Dr. Ford’s account should be considered carefully, and the reasonable next steps should be taken. We are well past the statute of limitations, so there cannot be any criminal or civil action taken against Dr. Ford’s attacker; but the purpose of acting on an accusation of assault shouldn’t be for the sake of punishing the attacker: it should be for the sake of trying to make things right, however that can be done. The truth is, of course, it can’t be made right, because Dr. Ford can never be relieved of the burden of what happened to her; but that makes it more important, not less, that we try.
At the same time, this case can’t be separated from the politics. The potential stakes have been raised, all the way to the highest court in the land. This may be important not only for those involved, but for the entire country. It doesn’t change the situation, but it changes the extent of it, and therefore changes the extent of our response to it. Howsoever far we might be willing to go for the sake of doing what is right for Dr. Ford – and I’d argue that that should be pretty goddamn far – we have to be willing to go much, much farther to do what is right for all of us.
So what is the right thing to do? Let me start by stating, as I think I’ve been doing all along, the obvious: we should not be playing partisan politics with this. And as is always the case, neither party is innocent of that crime, the crime of exploiting intense suffering, perhaps even causing intense suffering, for the sake of partisan political gain. It is utterly appalling that the Democrats, specifically Senator Dianne Feinstein, sat on the accusation for two months, revealing it only when it was the last bullet in the gun and could be used to delay Judge Kavanaugh’s nomination as long as possible. It seems likely that the political calculus here also sought to make it impossible for President Trump to nominate a replacement in time to get someone confirmed before the midterms if he and the GOP should decide to abandon Kavanaugh, which means they have little choice politically but to stick with the man accused of sexual assault, which will surely be used to make much political hay regarding the President and the rest of the privileged white dudes in power and their tendency towards sexual violence and misconduct. That’s a disgusting abuse of Dr. Ford and Judge Kavanaugh and the entire political system. (Honestly, if I may be allowed another aside, I have to say that I think President Trump did nothing wrong here. I’m already seeing memes associating Trump with all of the sexual misconduct in the GOP, and though he certainly bears responsibility for his own alleged crimes and multiple verified instances of misogyny and sexual misconduct, he didn’t make the Republicans, nor the Democrats who have also committed crimes and sexual misconduct, into the scum that they are. He could not possibly have known about this assault accusation against Judge Kavanaugh, and so he should not be taken to task for picking a man who had this hidden in his past; it was hidden too well and too deep for anyone to know, which is why Judge Kavanaugh has the title and the position that he does. I saw Trevor Noah of the Daily Show making a comment about how Trump seems drawn to other sexual assaulters, and while that may be true, it also hides the truth that people who commit sexual assault are not always, not even often, clearly criminal in their demeanor. There is nothing to show, on the outside, that someone may have committed sexual assault in their past. The nicest guy you know might be guilty of sexual assault, and still seem like the nicest guy you know. There’s no particular reason to think that Trump could sense if Kavanaugh is guilty of this, and he couldn’t have known that Kavanaugh would be accused of it. That being the case, I actually think the honorable thing for the President to do is to stand by his nominee until and unless the truth is proven; and that’s what Trump is doing.) I don’t believe the cover story of protecting Dr. Ford’s anonymity; it wouldn’t even be hard to bring up the accusation without details but with enough information to scuttle the nomination before it went to committee. Senator Feinstein could have gone to President Trump’s advisors and presented the situation, and they absolutely would have steered the President to a different nominee; it’s not like Brett Kavanaugh is the only good Republican Ken doll in the judicial branch, and there were a dozen other possible names floating around for the seat. No, it seems clear that Senator Feinstein held this grenade until the very last second so as to inflict maximum damage, and that is simply gross.
On the other hand, the idea that the Republicans can push this nomination forward to a vote without properly pursuing the matter in a manner befitting the seriousness of the allegation, and the potential impact of putting a man guilty of sexual assault onto the Supreme Court for the rest of his life, for the sole reason that that man is also a conservative, is just as utterly disgusting. I can’t imagine being so cynical that I could do what the GOP seems to have done, which is to find a way to spin this that seems acceptable to enough of their base that they can then go ahead and do what they planned to do before this came to light: put a fifth conservative justice on the Supreme Court and start laying down precedents that will help them win the culture wars. But all I hear from them is, “Well, she’ll have a chance to speak, but we can’t delay this nomination. Don’t have time. Got to get this done fast.” Their reasoning is clear, and grotesque.
The right thing to do politically would be to go to a vote and vote Kavanaugh down, right now, and then get a second nominee through the process as fast as they possibly can; I would also argue that this would be the right thing to do for Dr. Ford and Judge Kavanaugh, because it would take all of the ungodly pressure and scrutiny off of the case, and Dr. Ford could pursue it as she saw fit. It should be pursued, now that it’s out, both for her sake and because even if he is not headed for the Supreme Court, Kavanaugh is currently a judge on the Court of Appeals: he may not be one of the nine most powerful judges in the country, but he is one of the 188 most powerful judges. But bringing an accusation to light, proving the allegations, and potentially calling for Kavanaugh’s impeachment from the appellate court, none of that has the same insane heat as this does. And that way, the GOP could go ahead and get their fifth judge on the Supreme Court. Without inflicting a second justice, along with Clarence Thomas, who may be (is, in Thomas’s case) guilty of criminal sexual acts. (And Democrats worried about the long term effects in the culture wars should keep Thomas in mind. He is 70 years old, and he will not want to live out his last years as Ruth Bader Ginsburg is doing, working into her 80’s through ill health because she needs to keep her seat and do the right thing. Thomas does not have a hundredth part of Ginsburg’s strength, and his moral character is essentially nil. So make sure that Congress is Democratic, and Trump is out by 2020, and you’ll get a fifth liberal judge when Thomas steps down.)
But this is all beside the point. Because this is not a political issue. There are political issues attached to it, which change the dynamics of it; but they do not change the core issue. The core issue is that a woman has said she was attacked. And while there is no evidence beyond her word that Kavanaugh was the man who did it, there is evidence that it happened, both in her willingness to come forward with the accusation when there is little evidence that she gains thereby (I say “little evidence” because she might be using this allegation to hurt Kavanaugh and Trump, and her gain might be their loss. But there’s no evidence that Dr. Ford is a fanatic who would throw away her entire life for the sake of sticking it to Trump, just so he could nominate a different Republican Ken doll to the court after tossing out Kavanaugh. Also note that if her intent was political drama, she would have made the very same play that Feinstein made, coming out publicly at the most intense moment, rather than sending a letter to her congresswoman two months ago.), and in the fact that she recounted the attack to her therapist in 2012, long before she could have predicted she’d make an allegation against a Supreme Court nominee. It is not clear that she is telling the truth, because it is not clear that she definitely recalls the truth; that it happened seems likely, but that it was Kavanaugh is in some doubt. She took a polygraph test and passed it, but that isn’t good evidence; the therapist’s notes from 2012 differ from her story in critical ways (The notes say there were four males in the room when she was attacked. Kavanaugh is not named in them.); she can’t recall many details about the overall situation (though she has not had the opportunity to speak about this and answer questions, so we don’t yet know everything she recalls, only what her initial public statements describe); the other people in the room deny her allegations. That Kavanaugh denied it doesn’t show he’s innocent, because of course he has quite a lot to gain from denying it and nothing to gain from admitting guilt; the testimonials of his good character and the fact that there are many women whom he hasn’t attempted to rape do not, of course, mean anything at all.
So what do we do when there is a credible but not airtight accusation of a serious crime? It depends. What would be gained from pursuing the matter? What would the costs be? If this was just two people with an old trauma between them, then there wouldn’t be much for society to gain, and it wouldn’t be worth very much to pursue it; it would of course be worth the world for Dr. Ford to pursue it, and people who could help her would be, I think, honor bound to do so if they could, for her sake. But this is a 35-year-old crime, and if she brought it to a Maryland prosecutor, even if the statute of limitations didn’t exist (And by the way: it shouldn’t. The statute of limitations is that “Boys will be boys” bullshit made into law – “Well, shucks, he hasn’t raped anybody since then, so what’s the big deal?” – and it’s everything wrong with our justice system.), the prosecutor might not pursue it because there are other crimes and other criminals that pose larger threats. I think the story should be published, because there is not a better way to find out if other women might have suffered similarly; and if there is a pattern of behavior, suddenly there is much more reason to pursue charges against the assailant, to protect other innocents from harm.
I recognize that publishing an unproven allegation would ruin a man’s reputation. I face that possibility myself, all the time, because society believes someone like me, a man in his 40’s who spends all day with teenagers, is already probably 40% of the way towards child molestation; a credible public accusation would be more than enough to end my career forever, and prevent me from ever working in anything remotely like this field again. But the truth is that victims are destroyed by sexual assault, and it is the work of a lifetime to rebuild themselves; many can’t ever do it, particularly not if they are victimized more than once. Coming forward in our society with an accusation is even more dangerous than being accused: Brett Kavanaugh might lose his nomination for the Supreme Court; Dr. Ford has received death threats and has had to move out of her home, just in the last week. There isn’t an instance of public accusation that doesn’t go approximately that way: for all the grief that Bill Clinton (And Hillary Clinton, and Al Gore) got because of Clinton’s misconduct, it wasn’t a patch on what Monica Lewinsky went through. Laughing stock of the entire nation, for – well, for life, really, though she has done an admirable job of rebuilding herself since then. If I were accused of sexual misconduct, I’d be ruined; but the one who accused me, because I am a successful and popular teacher and a good guy, would be the target of every single bit of anger and hate that all of my friends and family could bring to bear. It would be bad. If someone were willing to do that to themselves, it would stand as reasonable evidence that the allegation were true. Proof? Of course not. But evidence. And because I recognize that, I work hard to make sure I don’t ever make it easy for someone to bring a false accusation against me, and I work even harder to make sure that no one could make a genuine complaint about my behavior, could accuse me of harassment or discrimination or something similar.
Plus, I’m not a rapist. Which makes it a lot easier to avoid accusations of rape.
I have to say, I got drunk as a teenager, more than once. Really drunk, sometimes. At parties, even. And I never even jokingly pretended to rape anyone. There is a difference between someone who will commit an act this heinous when their inhibitions are lowered, and someone who would never commit the act. That difference matters. And it has nothing to do with age and nothing to do with alcohol. People who say “Boys will be boys” about sexual assault, or who use a phrase like “drunken hijinks,” need to learn that.
So as I said above, what do we do when there is a credible but not an airtight accusation of a serious crime? We investigate. Of course we investigate. We ask questions. We send professionals in to interview everyone involved, and everyone who might know the truth, and we find out everything we can about it. Everyone should want this: Kavanaugh is already at risk from the accusation; if he’s innocent, an investigation is the best chance to prove it. If it were me, I wouldn’t be satisfied with being able to deny it – even if I categorically denied it, as Kavanaugh has – and then move on, I’d want someone who knew what they were doing to ascertain the truth, and make it known as an objective fact. Dr. Ford should want an investigation in order to prove that she’s telling the truth, and to bring herself one step closer to justice and the good rebuilding of herself from her trauma. And indeed, Dr. Ford has asked for, even demanded an investigation. Well, one out of two ain’t bad. The Republicans should want an investigation because it will be far faster than pursuing another nominee if Kavanaugh is innocent, and far better than either confirming an attempted rapist to the Supreme Court if he’s guilty, or abandoning a man just from an accusation, which is neither good nor politically savvy. For those concerned about how a mere accusation can do irreparable harm to a man’s reputation, an investigation would increase the penalty for those who make false accusations, and show that the accusation alone is not the end of the story.
For all the rest of us, an investigation would help ensure that we get a decent person on the Supreme Court (Partisan politics aside, please: a decent person who is a conservative is a decent person; many and many a conservative Justice have made decisions that have been good for the country. And remember that any decision does not have to be the end of the fight, because even the Supreme Court can be overridden by the will of the people. Even if we don’t get Kavanaugh, we are going to get a conservative: because even if the Democrats win in November, they won’t take control until January, and that’s plenty of time for a whole new nominee. So let’s get a decent one). An investigation would help us learn the truth, and help a victim work through a trauma, and those are both good things regardless of other considerations. An investigation would help us remember how seriously we have to look at sexual assault, and if Kavanaugh is guilty, it may help us start thinking seriously about how we can work to prevent similar things from happening, and also how we can’t assume that all sexual assaults happen in the same way, or that all those who commit sexual assault are the same kind of person, or that finding 65 women who think you’re nice shows that you couldn’t possibly have tried to rape a 15-year-old girl, and gagged her when she tried to scream.
Nobody knew about what happened at that party when it happened, because society has stigmatized victims more than attackers, and girls more than boys, for millennia. We have to change that. We should make sure we all know now what happened then. There should be an investigation, a complete investigation by the FBI, intended to help ensure the best outcome for our national interest, as well as do the best we as a society can do for the victim.
Christine Blasey-Ford has been silenced once before. Now she should be allowed to speak.