It’s been twenty-seven years since that nausea-inducing spectacle of rich entitled white men belittling and dissing the very credible Anita Hill, as she came forward to explain how Clarence Thomas had behaved as her boss.
I was an Assistant U.S. Attorney in those days, prosecuting crimes in the Maryland U.S. Attorney’s Office, making credibility determinations on a daily basis. It didn’t seem very complicated in the Hill/Thomas matter to assess who was lying and who was telling the truth. Prosecutors do this all day long. https://wapo.st/2ppZejb (good recent article from a sex crimes prosecutor: “Prosecutors do th[is] regularly, in large part by parsing what’s reasonable and what’s believable through corroboration, details that have the ring of truth and inconvenient facts that are subtle signs of credibility”). I remember expressing to my wife some disgust at the fact that the all-male club of the Senate Judiciary Committee (with no doubt a few sexual secrets of their own) brushed her allegations aside as if she were just making it all up, without bothering to go through any of this basic work that lawyers, investigators, and juries do all the time.
Almost three decades later, here we go again. An ideologically vetted candidate is up for consideration, and the mostly white male Senate Judiciary Committee would rather not hear what Dr. Ford experienced from the drunken teenage version of Judge Kavanaugh. Senator Grassley tried to rush the vote but then Dr. Ford called everyone’s bluff and said sure I’ll testify. Ooops. I guess the Senators will have to listen to what she has to say. Or will they? Will they just be pretending to listen before rushing off to vote? Will they find away to sidestep her appearance altogether? Will having a woman or two on the panel make any difference this time around?
In the wake of the #MeToo movement, it will be telling to see if anything is different in 2018. If Dr. Ford is given the Anita Hill treatment and Kavanaugh confirmed, we will know for sure that not enough has changed, and certainly not in Washington. Kavanaugh may well provide the decisive vote to overturn Roe v. Wade, putting an exclamation point on the extent to which men still want to control women’s bodies – as drunken seventeen year olds or as Supreme Court justices. If such a decision does come from the Supreme Court, it will be (if Kavanaugh is confirmed) an all-male majority writing the opinion, with the women of the Court dissenting. How much more clear can this situation be?
Let’s peremptorily dispense with one anticipated argument we are sure to hear in the days ahead: We Can’t Tell Who’s Telling The Truth. It’s He Said/She Said… No Senator, you can work a little harder than that. Lay people on juries are asked to make these tough calls all the time, and they’re not allowed to just shrug it off. They are told how to figure it out, just like prosecutors and investigators are paid to figure it out.
If this were a court of law, a judge would instruct the jury on how to make credibility assessments of the inconsistent testimony of two witnesses. The jury would be instructed about such things as motive to lie, bias, and interest in the outcome. They would be told to study body language and demeanor, and to use their common sense. Who’s got a real motive to spin this? People are good at this kind of evaluation, it turns out. It’s only when we overthink things or let our biases jump in front of what our eyes can plainly see that we allow ourselves to get it wrong.
Applying those principles Prof. Hill’s situation 27 years ago and Dr. Ford’s situation today, it seems fairly straight-forward: the nominees have a huge motive to deny the accusation because of what they have to lose professionally and reputationally. Their accusers come forward reluctantly (because of the painful abuse they receive through the process), and speak in measured, precise, careful words, corroborated by other evidence and in Dr. Ford’s case, even by a lie detector test. If she is making all this up, why on earth would she describe and name a third person in the room, who could dispute her account? (That’s not a detail she would include if this is just a made up story.)
Of course Kavanaugh is going to deny the event, just like President Trump denies every allegation of entitled male sexual predation. They both know that making admissions, any admission, in this context is to buy trouble. Their calculus is that the blanket denial will cause enough people to say “Gee, it’s disputed, and I can’t figure out who to believe, so I’ll give him a pass.” This is intellectual laziness in its highest form.
The Senate could figure out who’s telling the truth. Juries and prosecutors do this every day in this country. And if the Senate isn’t sure, they shouldn’t confirm. There are plenty of other candidates who don’t carry this baggage.
And one other thing: let’s not treat this like a criminal trial and talk about “innocent until proven guilty.” That’s more intellectual laziness. He’s not on trial; he’s got a cushy job with life tenure. The question is whether we are comfortable appointing someone who a) may have attempted to rape a young girl, and b) is almost certainly lying when he denies that anything happened at all. It would be one thing if he were to say: I was young and immature then, and I don’t remember things the way she remembers them. But if whatever I did caused her the kind of pain she’s describing, I’m very sorry. That’s not what we’re hearing. We’re hearing: This is bullshit; you prove it.
I’m not buying Kavanaugh’s blanket denials any more than I buy Trump’s. If, as I believe, he’s lying, that is quite material to his suitability as a Supreme Court Justice.
Still run by entitled white men, the Senate will now show us whether it has learned anything. If, as I fear, it will repeat its miserable performance of 27 years ago, we will know exactly where we stand and what must change. Any Senator who fails to take Dr. Ford seriously as Professor Hill was not taken seriously should be ready for a backlash.
And the people better be ready to deliver that backlash in the form of votes.
Even We Here 