The long awaited testimony of Dr. Christine Blasey Ford who accused Supreme Court nominee Bret Kavanaugh of a sexual assault at a high school party some 35 years ago has taken place. The nominee also testified. There was no Perry Mason moment – no sudden confession to lying or sexual assault. In real life confrontations in court there rarely is. Instead trial lawyers during cross-examination chip away at little unlikely or dishonest details about collateral matters, in hope of collecting a critical mass of them to use in final argument.
In a Senate hearing such a dramatic moment is even less likely. The procedure is not designed to get at the truth but to grant Senators equal opportunity to preen before the cameras. They don’t ask questions; they give speeches. When the speech includes a question, they won’t let the witness interrupt with an answer. The Senate Republican majority did not want to have to ask tough questions on national television of a woman claiming sexual assault, so they hired a female sex crimes prosecutor from Arizona to conduct their examination. Even then the lawyer was unable to conduct an effective cross-examination, as Senate Rules stopped questioning every five minutes for five minutes of questioning by the other side.
So every time the lawyer asked five minutes of questions, she was interrupted by a five minute speech from a Democratic Senator. The lawyer was also plainly under instructions not to treat the witness harshly. Even under those conditions she was able to bring out the obvious problems with the witness’s testimony and develop a few suspicious details.
After the earlier regular hearings on the nomination had concluded, it became clear that the nominee would probably be confirmed by two votes on a party line vote with one or two Republican Senators wavering. The Committee vote was scheduled for Thursday, September 21.
There are three or four Democratic Senators up for reelection this year whose constituents voted heavily for Trump. The Democrats wanted to have the vote on Kavanaugh postponed until after the election so those Senators would be able to vote against the nomination without having to face their electorate for another six years. The means were at hand.
Back in July the ranking Democrat on the Judiciary Committee, Senator Diane Feinstein had received a letter from Dr. Christine Blasey Ford, a Psychology professor at Palo Alto University and Democratic activist, who claimed to have been sexually assaulted by Kavanaugh at a party when they were both in high school about 35 years ago. Dr. Ford had requested that her name be kept secret. There are procedures for the Senate to conduct private inquiries on such subjects which remain secret but Senator Feinstein did not initiate those procedures.
As is the custom in these cases Senator Feinstein met privately with Kavanaugh. She did not ask him about the incident – with or without the victim’s name. Nor, of course did she raise the subject in the public hearing.
During the week before the scheduled Thursday, September 21 vote on the nomination, Ford’s name was leaked to the media. Recall that no one in the Senate knew Ford’s name but Senator Feinstein and her staff. Ford then came forward and gave her story in the Washington Post. The media joined Democratic Senators in demanding that Ford’s testimony be taken by the Judiciary Committee before any vote. Under pressure, Judiciary Chairman Grassley agreed to have Ford testify and scheduled a hearing for that purpose on Monday, September 18, three days before the scheduled vote. Ford’s lawyers, also Democratic activists said she would not testify unless there was first an FBI investigation and the Committee agree to have Kavanaugh testify first with no opportunity to rebut her testimony. While those demands were ultimately abandoned after the desired delay, her lawyers also said Ford could not testify before the scheduled committee vote because she was unable to fly. The Committee offered to send staff investigators from both sides to interview her in California but this was also declined.
Ultimately Grassley caved again and agreed to postpone the vote.
The hearing was scheduled for September 27. The majority then scheduled the committee vote for Friday, September 28.
According to Ford’s statement Ford and another youth named Judge forced her into a bedroom where Kavanaugh forced her onto a bed, held her down and tried to remove her clothing while covering her mouth to keep her from calling out. She was able to escape, she said, when Judge also jumped on the bed.
Difficulties with her story arose even before Ford testified. She said there were six people who were at the party but could not name anyone but herself, Kavanaugh, Judge and a lifelong friend of hers named Leland Keyser. Kavanaugh flatly affirmatively denied that any such event occurred. Judge who apparently has a bad history of alcoholism said he had no memory of any such incident and that Kavanaugh would not have done such a thing. Ford’s friend Keyser said in a sworn statement, as her lawyer reported, “Simply put, Ms. Keyser does not know Mr. Kavanaugh, and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.” In spite of that, Keyser does say that she believes Ford.
Ford said she only had one beer at the party but could not say where the party occurred or when, even what year. She does not know how she got to the party or how she got home. She did not report the incident to her parents (perhaps understandably as she was not supposed to be at a party) but she did not report her complaint to Keyser then or in all the years she had known her.
She first reported such an incident decades later in therapy but did not mention Kavanaugh’s name. Her therapist’s notes state there were four men in the room at the time of the attack.
As soon as the hearing was scheduled Democrats began demanding that there also be an FBI investigation before any vote. This would have had the desired effect of futher delay. There was, of course, no way for the FBI to investigate a 35 year old incident that only one person knows about when she does not know where it occurred or who was there except for people who deny or have no memory of it.
During her testimony some troubling details were developed. It turns out that Ford’s fear of flying did not prevent her from flying to vacation trips in the South Pacific.
Ford also testified that after the incident she went to a Safeway grocery store where she encountered Judge who was working there. She went up and said hello to Judge because they were “friendly.” Her point was that Judge looked guilty. A better point is that she went up to him and spoke to him in a friendly manner after such an event occurred.
Judge Kavanaugh gave very strong, appropriately indignant testimony, although he overdid it at one point. When Senator Amy Klobucher (D-MN) asked him if he ever had a blackout from drinking, he responded a couple of times “Have you?” After a recess, he apologized to Senator Klobucher.
The best moment of the hearing was Senator Lindsay Graham’s irate and eloquent denunciation of the Democrats behavior over the nomination to the detriment of Dr. Ford, Judge Kavanaugh and the political process in general.
The percipient witnesses with any memory of the event have been examined. People have their own ideas of the accuracy of Ford’s testimony. It does seem that the Senators and other people who claim to believe Ford’s testimony is accurate were opposed to the nomination in the first place. Likewise, those who state they believe Kavanaugh were in favor of his nomination all along.
I am no different. I have supported Judge Kavanaugh’s nomination. The only people who can claim to know the truth of the alleged incident are the two principals. Others who claim to know seem to be doing so based on their friendships or politics.
“Credibility” in court means not only a witness’s honesty but their ability to recall and report accurately. For the reasons discussed above I have difficulty crediting Dr. Ford’s testimony.
If the truth of an accusation cannot be established, the party with the burden of persuasion fails. That burden lies with the parties who press the accusation, in this case, the Democrats.
It is time for a vote on the merits of Judge Kavanaugh’s nomination.