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. What the video shows is a bunch of young pepole led by their noses by people with no respect for our Constitutional form of government.

      Recently Project Veritas showed videos of government officials of a similar age and dispostion intentionally slowing the work of government down, releasing documents illegally, using federal equipment in the pursuit of their own socialist ideas, etc. Some of the dumb leftists say that Project Veritas isn’t reliable but to date just days later one of these individuals was fired and another restricted in his use of federal equipment.

      https://www.projectveritas.com

    2. It has become the ends justify the means party. This doesn’t end well.

      According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.

      Woe to the nation when this latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws! Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests. Frederic Bastiat
      http://bastiat.org/en/the_law.html

  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!!

  2. 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!!

  3. There’s a lesson in all this for you woman-hating troglodytes. You wouldn’t have to try to force through an unacceptable stooge if what you wanted from the Supreme Court was desired by the American public. All rational American patriots want women to be in control of their own bodies–including the reproductive parts. The polls are uniform in finding that 70% are in favor. So, when you want wackjob-wingnut bible-thumpery that most don’t want, you might run into some headwinds. Ya think? So sorry for your loss; say a prayer, or sumthin.

  4. Turley you should also repeat the evidence on both sides. She has no memory of date/time and only told her therapist and husband this happened with some unnamed suspect. FOUR of her supposed alibis have denied, under risk of perjury, that it ever happened; the judge categorically denies it; her lawyer administered and has not released the polygraph test which is not even basis for prosecution and means nothing especially when we haven’t even seen the report the Dems haven’t released her un-redacted letter. THIS IS A WITCHHUNT of the most monumental kind and is shameful! It’s time to be more blunt and tell the Democrats to stop the lieing and smearing.

    1. Haha. Excellent. the gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make are in full-scale panic mode. So sorry for your loss and your hatred of America.

      this is to “what is that ticking sound?” sbg

  5. With this latest allegation, or character assassination attempt, which we all expected b/c this is the Democrat playbook — I want the Democrat party to know what I am hearing loud and clear from both women and men.

    The sentiment is some variation of this: I can’t remember the last time I was this angry about something in politics. This is disgusting.

    AND there will be a red wave voting in the midterms. Count on it.

    1. “I can’t remember the last time I was this angry about something in politics. This is disgusting.”

      Karol Markowicz tweet
      6:30 PM – 23 Sep 2018

    2. Even more disgusting:

      BREAKING: Chairman Grassley reveals Judge Kavanaugh’s two young daughters have faced serious death threats “and vicious assaults as a result of these allegations” — and “they’re getting worse by the day.”

      Paul Sperry tweet
      7:37 PM – 23 Sep 2018

    3. I have been saying to Repubs: Do not capitulate!

      BREAKING: Chairman Grassley has asked Blasey-Ford’s lawyers to turn over results of a private polygraph Ford claims she took & passed–along with “the list of questions.” The test was based on a statement “summarizing” her allegations, and may not have mentioned Kavanaugh by name

      Paul Sperry tweet
      7:33 PM – 23 Sep 2018

      1. Not a problem. Such matter can be dealt with in an expeditious manner and handled appropriately as to be scheduled in January.

        this is to “just pretend like there’s no other victims” t-hot bobbie

  6. A few years back, a male student was in his dorm room at Brown University in Rhode Island. It was a Saturday night. A female student enters his room. She has had a couple of adult beverages. She starts to come on to him. She puts her hands on him and starts to unbutton his shirt. Before long they’re really starting to enjoy each other’s company. A few weeks go by and she accuses him of raping her. Before long the whole campus population wants the sexual predator off campus. This guys life got ruined. There’s no proof that Kavanaugh did this, and even if he did at 17, that was over 3 decades ago. Kids often do some very dumb things. And as they mature they realize that some of the acts they committed as a youth they would never dream of doing as an adult. Judge Kavanaugh it appears has matured into a good man with a marriage that works and 2 daughters who appear to be fine young women. Let’s face it this isn’t about Kavanaugh, it’s about Trump. And blocking a Trump appointee. Again there is no concrete proof that Judge Kavanaugh did this.

  7. Marcy Wheeler, today:

    BRETT KAVANAUGH JUST PROVIDED COMPELLING EVIDENCE HE RECEIVED SEXUALLY EXPLICIT EMAILS FROM ALEX KOZINSKI

    September 23, 2018/9 Comments/in Law /by emptywheel

    https://www.emptywheel.net/2018/09/23/brett-kavanaugh-just-provided-compelling-evidence-he-received-sexually-explicit-emails-from-alex-kozinski/

    “In his latest attempt to respond to the allegation that he attempted to rape Christine Blasey Ford, Brett Kavanaugh has let it be known he has calendars from 1982 that (he claims) exonerate him, as if teenagers create permanent records of the incidences where they drink illegally and attempt to rape their acquaintances.

    “But his claim to have records so readily at hand should focus new scrutiny at one of his answers — or rather, one of many refusals to answer — to a question from Patrick Leahy.”

    (continues)

  8. The alleged party was not at Ms. Ford’s house. She’s identified the four other attendees. Did any of their houses have a pool?

    1. You should consider that the “party” where Mrs. Ford claims to have been groped might be an “after party”, following a daytime pool party at another home. This might explain how Chrissy would up wearing just a swim suit with an overshirt to the party in question.
      She couldn’t go home and change, because she attending the after party where no parents were home had to be kept from her parents.

      1. With so many mights in the Ford allegation and so few mights in Kavanaugh’s proven record, it is unconscionable to destroy this man’s life. But then again, innocence is of no concern for those that also support abortion on demand.

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