By Patricia L. Sharpe
Esteemed Members of the Senate Judiciary Committee: as you prepare for this highly sensitive hearing, please try to remember that justice requires a fair process as much as an examination of facts. Whatever the outcome of your inquiry, you will suffer in the court of public opinion if you are not seen to conduct a thorough, fair-minded investigation into the validity of the charges against a Supreme Court nominee. The reputation of the court will also be compromised.
He said, She said
I do not know what happened on that terrible night so many years ago when a bunch of teens seem to have drank too much at a house party. I do not know if we will ever know for sure, even if both parties testify before a Senate committee next week, even if witnesses are called. Why? For one thing, there is no indication that the Republican members of the Judiciary committee intend to conduct themselves more honorably than they did in the Anita Hill case.
Judge Brett Kavanaugh's supporters, including the President, accuse the woman of keeping silence too long for credibility. Mr. Trump, who has plopped himself heavily on the scales of justice, needs to find other subjects to tweet about. It is now up to the Senate to evaluate his nominee's professional and personal qualifications. Nevertheless, the President has demanded a police report as proof that Dr. Christine Blasey Ford's was assaulted.
To report or Not to Report
As Mr. Trump would have learned, had he cared to do a little research, massive accumulations of data prove that young women, even today, are unlikely to tell any adult that they have suffered a violent sexual assault. The younger they are the less likely they’ll speak up, even to their mothers. Thirty years ago the zeitgeist always favored the alleged attacker over the alleged victim. The victim got the blame and the shame, and trying to report a rape in those days was almost as painful as the rape itself. To a marginally lesser extent, it still is. Most rapes go unreported.
Non-reporting is not evidence of non-rape.
Down Memory Lane
Those who wish to discredit Dr. Ford also cite memory problems. Incomplete recall. Inconsistency. Vagueness. Memory issues are vexing, but unsurprising. They also do not prove that the charges are fabricated.
In fact, a similar criticism might be directed at the accused. As strongly and perhaps sincerely as he maintains his innocence, isn’t it possible that he has suppressed his role in the attack? Allegedly he was drunk. Inebriation isn’t conducive to accurate, complete memory. In fact, the whole edifice of his current self-respect may very well rest on self-serving forgetfulness.
Peas in a Pod
We have here a politically-fraught tragedy involving two highly respected, middle-aged professionals. Let me repeat that: two highly respected professionals, two people with family members who love them and colleagues who trust them. By failing to acknowledge this equivalence between accuser and accused, the President and his allies have done their best to influence public opinion in Kavanaugh's favor, while demeaning the woman who dares to complain. Classic misogyny.
The cruel and unfair process to which Anita Hill was subjected has not been forgotten. Oddly enough, there is little indication that the Republican members of the Judiciary Committee, some of whom participated in the "lynching" of Anita Hill, are inclined to be any more judicious this time around.
They should think again. Accused and accuser must be treated with equal respect. Charges deserve thorough, objective investigation. In short, the process as such is critical, whatever the outcome. If justice continues to be an irrelevant consideration for the majority on the Judiciary Committee, the looming 2018 midterm elections are likely to tilt decisively toward Democrats.
Please Read a Weightier "Open Letter" from the Yale Law Faculty to the Judiciary Committee
As the Senate Judiciary Committee debates Judge Brett Kavanaugh’s nomination, we write as faculty members of Yale Law School, from which Judge Kavanaugh graduated, to urge that the Senate conduct a fair and deliberate confirmation process. With so much at stake for the Supreme Court and the nation, we are concerned about a rush to judgment that threatens both the integrity of the process and the public’s confidence in the Court.
Where, as here, a sexual assault has been alleged against an individual nominated for a lifetime appointment in a position of public trust, a partisan hearing alone cannot be the forum to determine the truth of the matter. Allegations of sexual assault require a neutral factfinder and an investigation that can ascertain facts fairly. Those at the FBI or others tasked with such an investigation must have adequate time to investigate facts. Fair process requires evidence from all parties with direct knowledge and consultation of experts when evaluating such evidence. In subsequent hearings, all of those who testify, and particularly women testifying about sexual assault, must be treated with respect.
The confirmation process must always be conducted, and appointments made, in a manner that gives Americans reason to trust the Supreme Court. Some questions are so fundamental to judicial integrity that the Senate cannot rush past them without undermining the public’s confidence in the Court. This is particularly so for an appointment that will yield a deciding vote on women’s rights and myriad other questions of immense consequence in American lives.