Tribalism and the Trial of Brett Kavanaugh

28th September 2018

Supreme Court nominee Brett Kavanaugh admits that he did some regrettable things in high school. He quite likely behaved in ways that would call his judgement and fortitude into question. It is also probable that he did something terrible in the summer of 1982, on the night that Dr. Christine Blasey Ford has so bravely described in public with impressive detail.

We will never know for sure what exactly occurred that night, or even enough to be truly confident one way or another. Both her testimony and his were compelling, and there was no instance in either that suggested dishonesty on the speaker’s part. Some of this uncertainty is inevitable. The unfortunate fact that the alleged attack took place over 30 years ago, as well as the asymmetric, he-said-she-said nature of most sexual assault cases make it difficult to assess. But much of it is also due to the invasion of partisan politics into a situation that, if anything else is, should be free from it.

Republicans on the Committee are the most at fault in all of this so far. Their decision not to subpoena Mark Judge – friend of Judge Kavanaugh and the only other person alleged to have been an eye-witness to the crime – is arguably the most striking abdication of responsibility to be seen in a Supreme Court nomination process in history. It doesn’t take much to conclude that nothing more of significance will be discovered without his appearance before the Committee, suggesting that Republicans aren’t primarily interested in finding the truth.

The best possible course of action would be to open an FBI investigation into the matter – yet most Republican members also refuse to do this, with their expressed reason being that Judge Kavanaugh has already been forced to endure enough. This is a flimsy defense because, most importantly, this is not a criminal trial. It is essentially a job interview – even if it is for one of the most important jobs on the planet – and in a job interview, there is no hard-and-fast principle of “innocent until proven guilty.” The burden is more so on the job applicant to assure the interviewer that there is no reason to worry when deciding whether to hire them. This is to say, if Judge Kavanaugh really is innocent and wishes to clear his name, and if Committee Republicans valued the truth more than placing another constitutional originalist on the Supreme Court, it would seem odd that neither of them are in agreement with Committee Democrats on the need for an FBI investigation.

Democrats on the other hand are far from innocent themselves. Ranking Member Dianne Feinstein of California sat on Dr.Ford’s letter that outlined the incident for almost two months after receiving it, waiting until the 11th hour to reveal its existence and halt what looked to be a sure nomination to the supreme court. The initial failure to act on the allegations according to protocol and in a prompt, judicious manner gave the impression that its release was more a Democratic strategy instead of a neutral attempt to get to the bottom of a shocking allegation against a Supreme Court nominee. It was also disappointing to see how seriously many Democrats took the later, far less credible allegations against Kavanaugh that emerged in the following days. The lack of sources and corroboration for these stories should have prompted Democrats to distance themselves from them, at least until more of the facts could be confirmed. But instead, many spoke of them in the same terms as Dr.Ford’s, and thus further gave the impression that they were just fishing for anything that would hurt his character and reputation.

Whatever may come of this, because of the way it has been mishandled by those on both sides of the aisle (and by the media), a significant portion of the country will feel that a terrible wrong has been committed against them. And they will likely harbor this resentment far into the future, affecting various other important decisions that will require bipartisan cooperation.

If we are to emerge from these trying times intact, we must dedicate a greater level of focus to bridging the ever-widening divide between us, and rejecting the tribal instincts that have gotten us to where we are today. If anything warrants our putting aside party and ideological labels, it is a topic like sexual assault.

At the time of writing, it appears that the dissent of Senators Flake and Murkowski may trigger the FBI investigation that their colleagues are so stridently opposed to.  If this comes to pass, it may provide some sort of closure to this thoroughly difficult situation.