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Blind Justice or Blind Rage: The Kavanaugh-Ford Hearing and the Politics Of Belief

download-6download-7Below is my column in USA Today on the upcoming hearing on the allegations of Dr. Christine Blasey Ford against Judge Bret Kavanaugh.  There has been a strange disconnect as Democrats denounce Republicans for prejudging Ford or denying her an impartial hearing while they announced in advance that they believe her — and by extension they do not believe Kavanaugh.  While the Senate is not a court of law, both sides recognize that they are supposed to afford witnesses a fair and unbiased hearing, particularly when the subject is such a serious allegation as attempted rape.

Here is the column:

It is a growing mantra on and off Capitol Hill. Both members and commentators have insisted that Christine Blasey Ford “has a right to be believed.” Hawaii’s Democratic Sen. Mazie Hirono not only has insisted that she and other women alleging abuse “need to be believed,” but men need to “just shut up and step up.” It is a jarring disconnect for members who insist that they confirm a nominee who will approach legal questions with a fair and open mind while dispensing with such considerations in their own treatment of his nomination. The fact is that Ford has a right to be heard and to be treated fairly. Neither she nor Kavanaugh have a right to be believed on the basis for an allegation or a denial.

Throughout the confirmation hearings, Democratic Senators pressed Kavanaugh as to whether he was a lock for business and corporate interests — favoring certain types of litigants and not giving a fair hearing to others. Sen. Sheldon Whitehouse denounced the conservatives on the Court — and by extension Kavanaugh — as changing their approach based on who was making allegations. He decried conservative jurists who spared corporate or business litigation from what they viewed as the “indignity of equal treatment.”

Kavanaugh and Ford deserve blind justice

Yet, the touchstone of legal process is neutral, consistent, and fair review. That means that no one has an advantage because who they are or what they represent or what they are alleging. Law is objective and, yes, blind.

These politicians however insist that blind justice means turning a blind eye to abuse. Various Democratic senators announced within days of Ford’s allegations that they believe her, including Minority Leader Chuck Schumer. Hillary Clinton and others have insisted that the test is whether you believe any woman alleging abuse. Clinton declared “I want to send a message to every survivor of sexual assault … You have the right to be believed, and we’re with you.”

What precisely does that mean? In the case of Ford, she is a highly credible person with a distinguished background as a college professor. However, does that alone mean that you should believe her over Kavanaugh, a person with a similarly distinguished background? Ford has only offered an allegation with minimal factual support. Indeed, she admits that she cannot recall the specific date or specific party involved in the assault. That does not mean that she lacks credibility but no reasonable judge would declare that they believe one party based solely on the initial (and contested) allegation.

It is a curious standard to maintain in this context. What would be the response if a nominee insisted that corporate parties “have a right to be believed” or people had a right to be believed based on their race or their religion? Indeed, judges received far more detailed allegations in the form of complaints in every case but maintain their strict neutrality in judging the case until after testimony and evidence has been fully placed into the record. A statement that a judge “believes” one party would be grounds for immediate removal for a lack of impartiality.

It is certainly true that senators are not judges, but they have repeatedly acknowledged their obligation to allow for a fair hearing. A hearing on an allegation of this kind comes closest in the Senate to a judicial proceeding other than an impeachment trial. Witnesses appear in the expectation that the committee will afford both parties the basic protections of due process, including an open mind. It is not enough to say that your mind can be changed but you are starting with a belief that Ford is telling the truth and Kavanaugh is a liar.

Justice means no preferences, prejudices

This hearing shows more vividly why such impartiality is so important. This is an alleged incident that occurred 36 years ago. Recently, ranking member Sen. Diane Feinstein (D., Calif.) said that she could not recall speaking or corresponding with Ford or her lawyer just days ago.

Yet, members are rushing to the airways to assure voters that they have made up their minds before any hearing. Sen. Richard Blumenthal (D. Conn.) declared “Let me say right at the outset, I believe Dr. Ford, I believe the survivor here.” Others have insisted that they will not allow Kavanaugh to paint Ford as a “liar” by denying her allegations.  Of course, Ford is labeling Kavanaugh as a liar in making the allegation. That is part of the zero-sum aspect to sexual abuse cases. Someone is usually lying, but that does not mean that you declare one to be a “survivor” and one a “liar” before any sworn testimony or evidence is put into the record.

Moreover, it is possible to believe Ford while believing that she could be mistaken on the identity of the attacker. It is possible to pass a polygraph examination with a false memory or association.

By the same token, the fact that Kavanaugh can produce former girlfriends and dozens of women who speak highly of him is of little import in judging these facts. He is in no more of a position to claim the right to be believed. It is his alleged treatment of this woman, not all other women, that is at issue. Moreover, Kavanaugh has categorically denied being at this party despite the fact that Ford cannot clearly recall the details of which party and house was involved in the alleged attack.

In 2016, Justice Anthony Kennedy (who Kavanaugh hopes to replace) wrote the majority opinion overturning a conviction based on the bias of the presiding judge. Kennedy wrote “Bias is easy to attribute to others and difficult to discern in oneself.” Members cannot demand an assurance from a nominee that he will approach all cases with an open mind when they are promising voters that their minds are already made up before any testimony is given on these allegations. That is the meaning of blind justice. There are no peaks, no prejudices, no preferences.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley

173 thoughts on “Blind Justice or Blind Rage: The Kavanaugh-Ford Hearing and the Politics Of Belief”

  1. Right, we should listen to the Senator who just put the blame on all men and then told us all to shut up. Emptywheel is a loon on a mission.

  3. Why do they believe her? Because no one puts themselves through this kind of bullsh!t without a damn good reason. If he didn’t do it, what’s he afraid of??

  4. Ms Ford alleges a crime took place 35 years ago in Montgomery County Maryland. She also alleges that she wants an investigation

    Why didn’t she just file a complaint with the Montgomery County police department?

    Will anyone ask her this question ?

    2. This is obvious. An accusation of rape belongs in the criminal justice system, not a Congressional hearing. But this isn’t about justice, it’s about bare knuckled politics. The Republicans blocked Garland and now the Dems want to block Kavanaugh and anyone else Trump would nominate at all costs.

      The left are turning our justice system on it’s head: the accused is now presumed guilty and no due process is required. They can’t win in an actual court, but they can win the House and Senate and that is all that matters for them.

      1. The Republicans simply ignored the Garland nomination, which was their prerogative. They didn’t orchestrate a campaign of defamation against him.

      2. Ivan, the whole idea of a Congressional Hearing for SCOTUS nominees is to determine if they’re worthy of a lifelong seat.

        1. The claim by Ford is totally untrue, however, it doesn’t matter. Even if true a juvenile male grabbing at a female at a party is not something to consider especially when his entire adult repuputation has been excellent. If you wish to judge him unfit then a substantial number of males would be made unfit as well and that could be the majority. This has opened up a can of worms for every mother with a male child and has made growing up as a male that much more difficult.

          Moreover, all the Democrats that have been involved in this late entry that has caused harm to the character of Kavanaugh and potential harm to Ford should at the lesat recuse themselves from the vote.

          1. Ah…So you’d sell out your own daughter?

            this is to “I wouldn’t mind at all if some horny guy trapped my daughter and tried to remove her clothes, then held his hand over her mouth to muffle her screams for help, and turned up the music so no one could hear her screams” allen / allan

            1. “Ah…So you’d sell out your own daughter?”

              We are not all like you Mark. You would sell out your daughter, mother and wife and you wouldn’t even succeed in getting a good price.

              1. Awesome. That’s all you got?

                this is to “I don’t have much if hannity’s not preaching” allen / allan

      3. You have neglected to ask the most salient question: What is that ticking sound?

        this is to “I don’t really understand what ‘left’ means, but hannity says it’s bad so I do too” ivan

      4. 2 more women have come forward, each telling of their experience with MK’s “sexual aggression.” One was in the same freshman class as MK at Yale. The New Yorker has an article about her “experience” that is written by Ronan Farrow (a Pulitzer Prize winner author) and Jane Meyer.

        MK is toast.

    1. Marcy Wheeler:

      “BRETT KAVANAUGH WAS IN THE LOOP ON (BROADER) PRECURSOR TO JOHN YOO’S STELLAR WIND MEMOS”

      https://www.emptywheel.net/2018/09/05/brett-kavanaugh-was-in-the-loop-on-broader-precursor-to-john-yoos-stellar-wind-memos/

      “Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.

      “This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.”

      1. Honestly, you don’t think that this guy Kavanaugh, like John Yoo can crank out some ass covering memos to tickle the prostrate of any federal judge when it comes to the CIF’s power to protect this nation for whatever fantasized or legitimate reason?
        Seriously?
        That’s all this about. Who’s going to be on the SCOTUS when Trump declares Marshall law after trying to be deposed like a third rate tyrant.

    2. If they don’t agree with your decisions, then you are entitled to nuthin’ but a presumption of guilt and a good ol’ smear job. Oh and hey, as if that’s not enough, Sen. Hirono has a message for men, too. She told y’all to just shut up already.

  6. “Justice means no preferences, prejudices” what a joke! Of course it’s technically correct but the nominees is being privileged and preferred over and over again. The GOP members of the Committee are covered in bias and prejudice against Professor Ford. The snide and smearing comments are unbelievable but not unexpected. When a member of the Senate who is a lawyer opines that “attempted rape is not a crime” how can any one think any thing else.

    The is nothing blind about how the GOP members of the committee are proceeding. They see the nominee and they know what he has committed to do and they see nothing else. So much for justice with no preferences and no prejudices.

    1. No, just the wishes of the gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make. True American patriots who love our country will defend her from you and your ilk. So sorry for your loss, but not really. By the way: what is that ticking sound?

      this is to “I’ve got my internet privileges back” crazy geoge

  8. “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

    – Abraham Lincoln
    _______________

    Little did “Crazy Abe” know he was referring to his own legacy; the 13th, 14th, 15th, and 19th amendments.

    How long will actual Americans allow the utter destruction of their country?
    __________________________________________________________

    “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”

    – Admiral Isoroku Yamamoto

  9. Christine Blasey Ford
    __________________

    Like a “Pet Rock” or bottled water,

    there’s no there there.

    It’s all hype!

    Defense attorneys are paid handsomely to lie in a “court of law,” which would more accurately be referred to as a “court of lies.”

    Just ask Justice Roberts who illegally and arbitrarily commingled the definitions of the words “state” and “federal” to forcibly impose the unconstitutional and communistic Obamacare through “exchanges.”

  10. “…Justice Anthony Kennedy…on the bias of the presiding judge…wrote, “bias is easy to attribute to others and difficult to discern in oneself.”
    __________________________________________________

    Thank you for your disquisition on philosophy, Your Honor, and Prof. Turley for the reiteration, but that is not what you are charged with.

    Yours is merely to declare all acts contrary to the manifest tenor of the law and Constitution void.

    That is all.

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

    Like the football referee, your charge is to simply declare all acts contrary to the manifest tenor of the rules void, not legislate, preach or philosophize.

    America will judge the judge with instant replay and, like observing the video, we can all read the simple English words of statue law and the Constitution.

    “…declare all acts contrary to the manifest tenor…void.”

  11. Is there a lawyer in this audience that can tell us whether “evidence” and “proof” are required to establish a crime in a court of law?

    What happened, Professor Turley?

    Did the Central Committee get to you?

  12. “Sen. Richard Blumenthal (D. Conn.) declared “Let me say right at the outset, I believe Dr. Ford, I believe the survivor here.”
    ____________________________________

    “We have learned something important since the days that I served in Vietnam, ” Sen. Richard Blumenthal (D. Conn.)

    Sen. Bloomingfraud did not “serve” in Vietnam. He is a proven liar.

  13. Breaking News

    Good news for Dr. Ford. Special potty arrangements have been made for the legal team. So the testimony can be given with dignity & equal treatment.

  14. Sorry, but this is funny:
    “There was Rep. Ralph Norman, R-S.C., with this knee-slapper at the Rock Hill Kiwanis Club: “Did y’all hear the latest late-breaking news from the Kavanaugh hearings? Ruth Bader Ginsburg came out [saying] she was groped by Abraham Lincoln.” Hardy-har-har.”
    Quoted from this article:
    https://www.realclearpolitics.com/articles/2018/09/23/its_been_27_years_since_anita_hill_have_we_learned_nothing_138143.html

    1. Ruth Bader Ginsburg came out [saying] she was groped by Abraham Lincoln.”

      Ruth Bader Ginsburg “has a right to be believed.”
      ________________________________________

      Enough incoherence and hysteria.

      Repeal the 19th amendment.

  15. While Judge and Smyth’s statements backing up Kavanaugh’s denials could be written off as friends protecting their fellow Georgetown Prep classmate, Keyser’s statement cannot. To the contrary, Keyser’s attorney admitted to CNN that his client was Ford’s life-long friend.

    Additionally, as the only other woman supposedly at the gathering, Keyser’s statement may hold more weight with key Republican Sen. Susan Collins, as well as the suburban moms watching what has been portrayed by the media as the latest Me Too reckoning play out just a little over a month before the midterm elections.

    http://thefederalist.com/2018/09/23/fourth-supposed-witness-kavanaugh-accusers-alleged-assault-says-didnt-happen/?utm_source=The+Federalist+List&utm_campaign=b7bb62d1e4-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-b7bb62d1e4-79248369

    1. The smart money says Judge and Kavanaugh haven’t had lunch in 25 years.

      1. Well if the only evidence being brought to trial is the word of those identified by Ford having been at the party, then it’s 4 to 1; and 1 of the 4 is supposedly Ford’s lifelong friend. Ford has been handed a lifeline with the opportunity to admit this may be a false memory. Democrats do not care.

        1. Not a trial. Hannity isn’t a lawyer, nor does he play one on TV. The ability to identify what’s relevant and focus only those issues is unfortunately not common amongst the lay public; a truism even more demonstrated by gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make who are the sole remaining support for the day glo bozo and his criminogenic “administration.”

          this is to “I’d sell my soul and all of my family’s for one more anti-roe vote” olly

  16. What is actually being put on trial here is the Judiciary branch of government. Judge Kavanaugh represents a threat to the administrative state. If he’s confirmed, President Trump will have a court favorable to conservative efforts to continue to unwind the bloated bureaucracies of our federal government. No, this is not about back-alley abortions, polluting waterways, deforestation, nuclear war, or the end of civilization. This is about forcing the Legislative branch to own the laws the write, not some unaccountable bureaucracy. And most importantly, not some activist court that cannot or rather will not be impeached by a branch of government that gave them the power in the first place.

  17. In your editorial article in the USA Today paper, you said “By the same token, the fact that Kavanaugh can produce former girlfriends and dozens of women who speak highly of him is of little import in judging these facts. He is in no more of a position to claim the right to be believed.”

    However, I somewhat disagree. What these former girlfriends and dozens of women say speaks directly to his character over many years – even decades.

    And isn’t that what this is about, since Prof. Ford cannot remember much of the incident?

    1. One does get the impression that Turley’s mentality is quite distant from that of a working lawyer. Which wouldn’t be so disconcerting if he weren’t teaching aspirant lawyers.

  20. Only about 2% of rape allegations turn out to be false according to Stanford University.

    https://web.stanford.edu/group/maan/cgi-bin/?page_id=297

    I haven’t made up my mind about this yet, but the stats are on Ford’s side.

    She should testify about this with or without an FBI investigation.

    Chances of Democrats winning the House are currently 4 in 5, so Nancy Pelosi can order an investigation into this after she becomes speaker.

    If the House finds her Ford’s claim has merit, the House can move to impeach Kavanaugh. It would be suicidal for Republicans to vote to avoid impeaching an attempted rapist.

    1. Unfortunately, Prof Ford’s statements have shown her recollection of this event to be hazy. There might even be a mistaken identity issue. Then you add the intense preparation and suggestive recall by her handlers. Who is paying for her handlers? What skin do they have in the game except to block Pres. Trump in everything? The stakes are really huge in this comedy.

      1. Prof Ford’s statements have shown her recollection of this event to be hazy.

        Actually, they suggest she isn’t ‘recollecting’ anything at all.

    2. Only about 2% of rape allegations turn out to be false according to Stanford University.

      Another appearance of this stupid meme.

      1. ‘Stanford University’ does not conduct studies. People with an institutional address there do.

      2. No clue why you fancy that an academic who discovers (or purports to discover) that 2% of rape allegations are proven false thus legitimates every uncertain or unexplored allegation.

        1. I did not say that the stat legitimizes every allegation. I said that it is rare for rape allegations to be false.

          And you’re being stupid. That statistic concerns allegations proven false. By citing it, you are claiming uncertain allegations are true.

          1. DSS, You have to give MAM time. That mind seems to work very slow and can’t distinguish between unproven, positive and negative.

          2. No, I am saying that it is rare for rape allegations to be false. I haven’t heard Ford testify yet, so I haven’t made a judgement about whether her claim is true.

            That’s why she should testify so people can see for themselves if she is a credible witness.

    3. OH, and BTW, I find your ‘temp name’ to be highly bigoted. Only a lib could get away with that. I married a Mexican, and am offended at your clear insult, as I and my wife, on her own, voted for Trump. I would call you a pig eyed POS, but I don’t want to denigrate a pig.

      1. Well, that’s your opinion, so here’s another: I don’t believe you’re married, your ilk doesn’t mix well with actual people. Rather, assuming you’re allowed to vote and not on parole, if you actually voted for the day glo bozo then you’re either a gullible rube, dupe, klan wannabee, pocket-traitor, or grifter on the make; since we’re trading opinions.

        this is to “I’m not sure what a ‘lib’ is, but hannity says they’re meanies” bob the offended

        1. That is why some people are idiots. My ilk? Attack attack, attack. That is all you know and ur not even in the conversation.

          1. Don’t behave or speak like an idiot, and you won’t have to wear that jacket.

            to “bob the offended”

        2. Mark M, I’m just curious…what descriptive adjectives do you use for those who actually voted for the corrupt, incompetent, lying, sickly, unlikeable, and crooked Hillary Clinton who believes, to this very day, that she was inherently deserving of being elevated to the position of leader of the free world because she has a vajayjay and it was her turn?

          1. For TBob and the uninitiated:

            “Marky Mark NPD”

            Narcissistic personality disorder — one of several types of personality disorders — is a mental condition in which people have an inflated sense of their own importance, a deep need for excessive attention and admiration, troubled relationships, and a lack of empathy for others. But behind this mask of extreme confidence lies a fragile self-esteem that’s vulnerable to the slightest criticism.
            A narcissistic personality disorder causes problems in many areas of life, such as relationships, work, school or financial affairs. People with narcissistic personality disorder may be generally unhappy and disappointed when they’re not given the special favors or admiration they believe they deserve. They may find their relationships unfulfilling, and others may not enjoy being around them.
            Treatment for narcissistic personality disorder centers around talk therapy (psychotherapy).

            Symptoms

            Signs and symptoms of narcissistic personality disorder and the severity of symptoms vary. People with the disorder can:

            Have an exaggerated sense of self-importance
            Have a sense of entitlement and require constant, excessive admiration
            Expect to be recognized as superior even without achievements that warrant it
            Exaggerate achievements and talents
            Be preoccupied with fantasies about success, power, brilliance, beauty or the perfect mate
            Believe they are superior and can only associate with equally special people
            Monopolize conversations and belittle or look down on people they perceive as inferior
            Expect special favors and unquestioning compliance with their expectations
            Take advantage of others to get what they want
            Have an inability or unwillingness to recognize the needs and feelings of others
            Be envious of others and believe others envy them
            Behave in an arrogant or haughty manner, coming across as conceited, boastful and pretentious
            Insist on having the best of everything — for instance, the best car or office
            At the same time, people with narcissistic personality disorder have trouble handling anything they perceive as criticism, and they can:
            Become impatient or angry when they don’t receive special treatment
            Have significant interpersonal problems and easily feel slighted
            React with rage or contempt and try to belittle the other person to make themselves appear superior
            Have difficulty regulating emotions and behavior
            Experience major problems dealing with stress and adapting to change
            Feel depressed and moody because they fall short of perfection
            Have secret feelings of insecurity, shame, vulnerability and humiliation

            ***When to see a doctor***

            People with narcissistic personality disorder may not want to think that anything could be wrong, so they may be unlikely to seek treatment. If they do seek treatment, it’s more likely to be for symptoms of depression, drug or alcohol use, or another mental health problem. But perceived insults to self-esteem may make it difficult to accept and follow through with treatment.

            If you recognize aspects of your personality that are common to narcissistic personality disorder or you’re feeling overwhelmed by sadness, consider reaching out to a trusted doctor or mental health provider. Getting the right treatment can help make your life more rewarding and enjoyable.

            *** Emphasis

            1. Excellent. Please post more material Just. Like. This.

              this is to “ya know, it does describe the day glo bozo to a ‘T’ doesn’t it?” georgie

      2. You married a Mexican? But what about the chain immigration the Trumpies are so angry about.

        If you marry a Mexican, he or she can sponsor relatives to immigrate to the US as well for purposes of family unification.

        Congress hasn’t stopped this, despite the far-right anger about it

    4. The studies on false rape charges range from 4% to 41% and that offers not an iota of proof on an individual case.

      1. Yes, but part of the feminist credo is that it is illegitimate to treat anything a woman says with skepticism, unless she’s defaming or criticising another woman who also has larger number of diversity Pokemon points.

      1. Good point. Partisan Democrats never quit playing games when they’re not out and out lying.

    6. It would be so great if folks like you could express an opinion without referring to statistics, which are the real world equivalent of making shit up. I have a whole pile of ‘statistics’ I could show you that state people should have, by all rights, LOVED Hillary. Do any of you live here on earth with the rest of us? Are you even human beings?

      1. There’s nothing wrong with statistics, which are, in fact, necessary for understanding social life. It is just that they can be stated misleadingly.

        1. Always empathy fer all TRUE victims.

          But, millions o’ lil Boyz got/get their dicks pulled ‘n butts-probed by naZty lil Galz.

          Then they all GROW UP!!

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