At the Senate Judiciary Committee hearing today, suppose both Brett Kavanaugh and Christine Blasey Ford testify under oath. Suppose they each stick to their story. Ford says the drunken sexual assault happened as she has described, and Kavanaugh once again categorically denies that he has ever done such a thing or was even at the party in question. Suppose also that both Ford and Kavanaugh give stirring, emotional performances.
What is the Senate Judiciary Committee supposed to conclude from that? What are individual senators supposed to do about it afterwards? Make a decision on the basis of who gave the best performance? Do they calculate the political optics of voting for or against an embattled nominee? Do they simply go with their gut?
Whatever they do, they are not going to be able to decide on the basis of facts, such as they are, or anything like evidence. They will not even be able to decide on the preponderance of evidence, which is the standard in a civil as opposed to criminal trial, because no substantive evidence of any kind has been presented amid all the accusations swirling around Kavanaugh in recent days. The Judiciary Committee has bent over backwards just trying to get sworn statements from Kavanaugh’s accusers.
What is likely to happen today is a kind of grand farce: a real-life reenactment of a Title IX rape tribunal on steroids—and not on some left-wing college campus but in the U.S. Senate, supposedly the “world’s greatest deliberative body,” now reduced to a kangaroo court before the eyes of a gazing world.
Regardless of what happens, this much is certain: no one wins. When this is over, one side is going to believe that the other has committed a great travesty of justice. If Senate Republicans confirm Kavanaugh, the left will forever claim that the GOP ignored “credible claims” from women and put a rapist on the Supreme Court.
If Democrats manage to defeat Kavanaugh’s nomination, Americans on the right will not only be furious that Republicans caved, they will be inclined to believe that future allegations of sexual misconduct are nothing more than political weapons, and that conservatives seeking high office cannot expect the presumption of innocence, due process, or anything close to a fair hearing.
The ‘Evidence’ Is Nothing But He-Said, She-Said
Consider the documents each side has submitted to the committee as evidence. Kavanaugh’s legal team handed over pages from his 1982 calendar for the months of May, June, July, and August. Perusing it, anyone can see young Kavanaugh had quite a busy life that summer. But as an analysis by the New York Times showed, the calendar doesn’t disprove Ford’s sexual assault allegations. Although Kavanaugh listed myriad social engagements, outings, sporting events, movies, and so on, he could have attended a party that summer without listing it in his calendar.
Ford’s legal team has submitted four signed declarations, from her husband and three friends, claiming that Ford told them about the alleged sexual assault. But as with Kavanaugh’s calendar, these declarations don’t amount to much. The events Ford describes supposedly took place 36 years ago, yet she never mentioned them to anyone—not her parents, not her friends, not even her husband—until 2012, when it came up during a couple’s therapy session.
So far, there’s no corroborating evidence contemporaneous with the allegations, and therefore no way to weigh these declarations beyond he-said, she-said, they-said.
Democrats will doubtless point to the other accusers who have come forward in recent days. On Sunday, The New Yorker published an account by a woman named Deborah Ramirez, who attended Yale with Kavanaugh and claims that he exposed himself to her at a drunken dormitory party, “thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.”
The problem is, like Ford’s allegation, no contemporaneous witnesses have come forward to corroborate the story. In addition, Ramirez never mentioned the incident to anyone at the time, and came forward “after six days of carefully assessing her memories and consulting with her attorney.” The New Yorker contacted several dozens of classmates of Ramirez and Kavanaugh yet were unable to confirm that Kavanaugh was even at the party. Two students Ramirez claims were there denied any memory of the party. Those former students, along with two others who were close to both Kavanaugh and Ramirez at Yale, issued a statement saying that they never heard of anything like the incident alleged by Ramirez.
On Wednesday, another woman came forward, Julie Swetnick, with an even more salacious accusation: that Kavanaugh and his friends targeted high school girls with drugs and alcohol at parties where “trains” of boys would gang-rape girls. Swetnick claims to be a victim of one such drugging and gang-rape, and claims Kavanaugh was present at the party where it happened (Swetnick’s statement notably falls short of accusing Kavanaugh of participating in the gang-rape, only alleging that he was at the party where it happened).
This latest allegation—published on Twitter by Swetnick’s celebrity attorney, Michael Avenatti—is, like the others, uncorroborated. That’s odd, because the claim here is that there was a serial gang-rape cult in the early 1980s in Washington, D.C., made up of high school and college students, including Kavanaugh, and that these gang-rape parties happened repeatedly. Moreover, Swetnick claims that she went to these parties as an adult—10 of them!—and never did anything besides “avoid the punch.”
It’s a crazy story—so crazy, in fact, that if it were true there would be plenty of witnesses, including multiple perpetrators and victims, who could confirm it. Alas, the New York Times could not independently corroborate even one of her claims, and said Avennati declined to make her available for an interview.
The Hearing Will Not Clear Up Anything
For his part, Kavanaugh denies all of this categorically, as he has since the beginning. He says he’s never even heard of Swetnick, let alone met her, and that the accusations of Ford and Ramirez are false, nothing but a smear campaign.
Whether these accusations are true or not, Senate Democrats have gotten what they wanted out of them. They are now calling on the confirmation process to be suspended while the FBI conducts a “thorough investigation.” Senate Minority Leader Chuck Schumer thinks Kavanaugh should withdraw from consideration, and on Wednesday afternoon the 10 Democrats on the Judiciary Committee asked President Trump withdraw Kavanaugh’s nomination.
Senate Democrats are right about one thing: this hearing is not going to clear up anything. There will be no justice at the end of it, for anyone. Neither the senators on the Judiciary Committee nor the American people will be able to say that they have seen enough evidence to be able to judge these claims fairly, because the claims are allergic to evidence and the hearing itself is a farce.
By dragging out these decades-old allegations in the eleventh hour, Senate Democrats have conjured a Kafkaesque nightmare plucked from the pages of “The Trial,” in which a person’s entire life can be destroyed by an accusation. They have done this as part of their resistance to the Trump administration, but in the process they have reduced their deliberations to mere spectacle, with the entire country watching.