Every senator voting to confirm Kavanaugh to the Supreme Court should be pushed to answer one question: Do you believe her?
Dr. Christine Blasey Ford threw her life into turmoil yesterday to testify before the nation. Asked by Sen. Dick Durbin (D-Ill.), with what degree of certainty she believed that Judge Brett Kavanaugh assaulted her, she responded: “One hundred percent.”
Every senator voting to confirm Kavanaugh to the Supreme Court should be pushed to answer one question: Do you believe her? That question helps illuminate so much about this moment in American history, as survivors of sexual assault challenge our nation to confront long-entrenched norms, including not believing individuals who report that they are victims of sexual assault, or minimizing the harms to the accuser relative to the harms to the accused.
It is not hard to get broad agreement that sexual assault is bad. But, as many of us have seen firsthand, that consensus is tested once communities are asked to confront allegations against someone with social and professional standing that mirrors their own. And, as we are witnessing in real time, people can work through an extraordinary set of mental contortions to protect themselves from admitting that “their guy” did the wrong thing.
Ford was not supposed to be on trial on Thursday. Yet we watched Rachel Mitchell, a sex crimes prosecutor, conduct what was effectively a cross-examination of Ford, the alleged victim, first by trying to identify inconsistencies in her statements (which Ford forthrightly explained), and then by attempting to undermine her credibility generally by noting that Ford was afraid of flying but sometimes flew. Then, Republican senators prevented Mitchell from finishing that same exercise with Kavanaugh, the alleged perpetrator. Despite this unbalanced treatment, Ford emerged from Thursday’s hearing with few openly doubting her story, except for one critical detail: The identity of the man who assaulted her.
President Donald Trump told reporters Friday that he found Ford “a very credible witness” and a “very fine woman.” To date, no senator has said outright that Ford was not credible. Sen. Orrin Hatch (R-Utah) told reporters on Thursday, that Ford was a “good witness” and “articulate.” Sen. Richard Shelby (R-Ala.) said “I thought she looked credible.” Even Sen. Lindsey Graham (R-S.C.), who emerged as Kavanaugh’s chief advocate Thursday, described Ford as “very sincere.”
Yet, this tacit acknowledgment of Ford’s credibility has not translated into any willingness to believe her testimony about the relevant events and, more specifically, to believe her certainty about who assaulted her. On Thursday night, Graham told Fox News’ Sean Hannity that he was “more convinced than ever that [Kavanaugh] didn’t do it.” So, what is going on?
One possibility is that the Republicans don’t actually find her credible, but are unwilling to state that publicly given the optics of the #MeToo era. Indeed, the Republican members of the Senate Judiciary Committee were sufficiently self-aware that it would look bad to have 11 men question Ford’s testimony that they hired Mitchell to do it for them. If this is the case – that they were unconvinced by Ford’s testimony — then they have placed the credibility bar for sexual assault survivors at an insurmountable height.
There is no such thing as a “perfect victim.” But, for this particular group of senators, Ford managed to come close. Quite apart from her careful and compelling recollection of events, Ford is highly educated, from an affluent background, with an ability to serve as her own expert witness on traumatic memory. And, unlike Anita Hill, she’s white. Rarely is there such demographic congruity between the judge and the judged.
Rather than truly not believing her, a more likely possibility is that they do find her credible and yet, listening to Kavanaugh’s denial, and foregrounding his Yale pedigree and his current role as a judge on the federal bench, they still cannot bring themselves to believe he committed the alleged assault. Instead, they are looking for other ways to reconcile her credible testimony with their faith in their nominee. The task is not an easy one. It requires believing that Ford was actually assaulted and yet mistaken about the identity of her assailant – an assailant that she already knew. “How are you so sure that it was he?” Sen. Dianne Feinstein (D-Calif.) asked Ford in one of the more stunning moments of the Thursday hearing. “The same way that I’m sure that I’m talking to you right now. It’s — just basic memory functions” Ford replied.
Faced with the challenge of crediting Ford’s testimony, while maintaining that Kavanaugh did not assault her, Republicans have been calling for corroborating evidence. Yet even with the announcement late Friday that the FBI would conduct a “supplemental” investigation into the recent allegations against Kavanaugh, Republicans on the Senate Judiciary Committee were still broadcasting their support for him and his version of events, tweeting late Friday afternoon, “Believe Brett Kavanaugh #SCOTUS #ConfirmKavanaugh,” and linking to an op-ed in the Washington Examiner, which vouches for Kavanaugh’s innocence.
What evidence does the committee already have, and what kind of evidence might they expect? Testimony is evidence. If Ford is credible, as she is largely acknowledged to be, her testimony should be given the evidentiary value it deserves. In most U.S. courts, credible testimony alone can be enough for a criminal conviction. And for good reason. In sexual assault cases, the perpetrator and the victim are often the only ones present at the scene of the crime. If credible victim testimony did not stand as evidence, then there would be even less justice for survivors of sexual assault than there is already. (Also important to keep in mind, is that confirmation hearings are about assessing the fitness of a nominee – a task involving a significantly less demanding standard of proof than that required in a criminal, or even civil, trial.)
Unlike in so many cases of sexual assault, however, this is not an instance where those interested in figuring out the truth have to battle any “he said/she said” problem. Ford testified that Mark Judge, Kavanaugh’s friend, was a direct witness to the assault. Yet, Friday morning, the committee dismissed a resolution to subpoena him.
Meanwhile, Ford (and, later, the American Bar Association, Sen. Jeff Flake (R-Ariz.), and others) asked for an FBI investigation. And now, Trump has authorized one. This is a positive development. Still, if someone does not want to believe something, no amount of evidence will convince them. And if someone does want to believe something, it does not take much to support their belief.
Ford underwent a polygraph, which indicated that she was telling the truth. Polygraphs are certainly imperfect instruments, as Kavanaugh was quick to point out. But it is nonetheless worth the thought experiment to consider where we would be today had Kavanaugh also undergone a polygraph, and it had assessed his denial as truthful. Can anyone imagine that under such circumstances any Republican would have called for his denial to be supplemented by“corroborating evidence”?
The final possibility lurks then, that Republicans do find her credible and believe Kavanaugh sexually assaulted her, or are seeking to maintain willful blindness about that likelihood. This is perhaps the worst of the range of bad scenarios confronting us, as the vote moves forward to confirm a lifetime appointment on the highest court in the land. What if our worst fears are realized: They know the truth. But, when it comes to their guy, they just do not care.
Originally published by the Just Security, New York University School of Law, under a Creative Commons Attribution-No Derivs-NonCommercial license.