The searing, destructive psychodrama that began with the public airing of sexual assault charges against Judge Brett Kavanaugh has been well-framed by essayist Lance Morrow as two parallel black & white films: Advise and Consent and Rashomon; the former a classic Hollywood 1962 drama; the latter a celebrated 1950 art film by Akira Kurosawa, the legendary Japanese film director.
Advise and Consent (the title updates the archaic “advice and consent” usage in U.S. Const. Art. II, sec. 2) brought the famed Allen Drury novel to the big screen (Drury co-authored the screenplay). A nomination for secretary of state runs afoul of a key senator’s secret, youthful affair. A senator who supports the nominee threatens to publicly reveal the affair unless the senator supports the nomination. The key senator commits suicide. Senators outraged by the dirty trick ostracize the offending senator and the nominee is defeated.
Rashomon is a story told in court from four viewpoints: the murder of a samurai and violation of his wife in a forest is recounted by the victims (the dead man via a medium); the bandit who allegedly committed the crimes; and a woodcutter who witnessed the episode. A priest who encountered the couple earlier, also figures in the plot. The stories are each distorted by the motives of the four participants, each seeing their own role more favorably than the others do. The film’s message: Definitive truth is ever unattainable in human affairs.
The late Meg Greenfield, who ran the Washington Post’s editorial page long ago, used to say that the city of Washington is best understood as high school. She meant that the capital’s emotional age and social dynamics — its cliques and power plays — have the characteristics of adolescents between 14 and 18. The Ford-Kavanaugh business was a high-school reunion organized as a forensic did-he-do-it? She said. And he said. There was virtually no corroborating evidence.…
The networks were riveted. Here was America in 2018, its angriest essences distilled into this characteristic but fairly strange drama enacting itself as middle-aged memories of high school.…
[W]e were deeply back in adolescence, in underage beer drinking, football practice and swimming at the country club, back in the time of intense studies and intense friendships, of class rankings, all-nighters and idiotic, salacious entries in the yearbook.
The hearing became a sort of séance. The year 2018 set up a quivering, gauzy resonance with the year 1982. Middle age… established communication with a prior world — with adolescent youth and its hopes, follies and terrors, and the mystery of an assault that did or did not happen.
Morrow’s sharp essay stops short of noting a limit to his parallel. The public courtly behavior of senators, commonplace in 1962, has been replaced by a debate reminiscent of the Delta kangaroo court trial (3:19) in Animal House — a satirical take forty years ago, but mild compared to today’s Senate. On the other hand, Rashomon offers an uncanny parallel, in terms of alternate realities.
Dianne Feinkenstein. The ranking minority member of Senate Judiciary Committee (SJC), “Di-Fi” compiled a record in this case that made for a poisonous cocktail whose toxic ingredients mixed gutter viciousness, stomach-turning cynicism, shocking betrayal, and sinister political strategy, a senatorial equivalent of Dr. Victor Frankenstein’s monster. (A doctor with benevolent intent created Mary Shelley’s fictional monster; Dianne Feinkenstein was both; her rampage unleashed with malice aforethought, in the form of a Democratic Party victory at any cost.)
Burden of Proof: Courts and the Court of Public Opinion. Democrats are not right about much in this debate, but are when they say that the standard for confirmation to high public office is not the “beyond a reasonable doubt” standard for criminal prosecutions. Such a standard could have theoretically paved the way for confirmation of O.J. to a federal post, after his acquittal in the criminal trial, notwithstanding that in a subsequent civil trial the jury found O.J. liable for two wrongful deaths. (His subsequent criminal conviction in 2008 would have ended this hypothetical prospect.)
O.K., O.J. does not appear to be a candidate now or in the future, for any public office anywhere. But nonetheless there remains the question of to what standard we hold nominees.
So what burden of proof balances the need to have a reasonable guarantee of nominee character with due process fairness that a nominee accused not be treated as guilty until proven innocent?
Ace professor Alan Dershowitz suggests a “clear and convincing” evidence standard. Black’s Law Dictionary defines this standard:
Evidence which is positive, precise and explicit, as opposed to ambiguous, equivocal, or contradictory proof, and which tends directly to establish the point to which it is adduced, instead of leaving it a matter of conjecture or presumption, and is sufficient to make out a prima facie case (i.e., sufficient on its face to allow a prosecution or lawsuit to proceed in court).
This standard of proof is an intermediate standard, requiring more that the civil standard — “a fair preponderance” of the credible evidence (often said to be 51 percent, or 50.1 percent), but less than the “beyond a reasonable doubt” standard for criminal cases. The latter is often said to be proof to a moral certainty, but short of absolute certainty (beyond a shadow of a doubt).
In Ford’s case, nominations investigative counsel Rachel Mitchell concluded in her Sept. 30 memorandum to Republican SJC senators:
In the legal context, here is my bottom line: A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard. (Boldface in original.)
Mitchell was slammed as having gone too soft on Ford, missing opportunities to discredit her. But it must be kept always in mind that the overarching goal of Ford supporters in the media was to get a sound byte showing Ford being pressed by aggressive cross-examination. A single such clip would be looped 24/7 through the November elections — and used again in 2020. Mitchell’s written memo provided ammunition for wavering senators.
Another consideration is that both eyewitness testimony and witness recollection are highly fallible. The American Psychological Association filed an amicus (“friend of the court”) brief in a Supreme Court case, Perry v. State of New Hampshire (2011). Numerous studies over decades have shown that eyewitness identification is wrong about 33 percent of the time. Juries routinely overvalue eyewitness testimony, basing their verdict on the confidence of the witness. Cross-examination is often ineffective against a confident witness who errs. In a similar vein, a psychologist writes in a WSJ op-ed that the therapist aims not at empirical reality, but healing narrative:
In many cases therapy leads patients to change the stories they tell themselves to heal their emotional wounds. A therapeutic narrative may be a mix of accurate and inaccurate memories, along with inferences to fill in the gaps. Like mythology or other literature, it can provide truthful insights into one’s inner life even if it doesn’t pass the test of objective accuracy.
Complicating matters in this case is the undeveloped state of the adolescent brain. Between ages 9 and 25, the prefrontal cortex and limbic system undergo stages of flux and reorganization. These areas of the brain are responsible for memory, judgment, stress and emotional regulation, and connecting behaviors to consequences. Before the brain is fully mature, boys and girls alike are prone to impulsive, aggressive and selfish behavior. Teens commonly use the psychological defenses of denial and repression to protect themselves from painful memories or actions.
Middle adolescence (14 to 17) is also a time of what mental-health professionals call present-oriented thinking. Teens at this stage have little connection to the past (experience) or the future (consequences). That contributes to later difficulty in recalling events and actions from those years of development.
In a related assessment, a body language expert analyzed Ford’s testimony (4:59) and found gestures indicating deception on her part.
It is important once more to emphasize that giving any complainant, in any context, of whatever gender, racial, ethnic or other group a “right to be believed” elevates mere mortals to godlike status. No society, let alone any government or other institution, can function if it confers any privileges to automatically anathematize targets of toxic complaints. Such an open-ended rule can be applied to anyone.
Even Bill Maher understands this: he saw a change from “listen to any woman who says she’s been wronged” to “automatically believe.” In due process terms, parties to litigation have a right to be heard, but all testimony is subject to factual scrutiny and credibility assessment.
Also, defenders of the accused have been reminded that the accuser is not on trial. But rape shield laws only limit inquiry into one’s past, by excluding reputational evidence and past sexual history not directly germane to a given criminal or civil proceeding. Rape shield evidentiary limits do not bar examining any complainant’s credibility in trials, nor, by extension, in confirmation hearings. (Let us dispose, as well, of the “judicial temperament” canard: the nominee’s indignant reaction to lurid accusations is mild compared to Justice Ginsburg’s comments about presidential candidate Donald Trump.)
Given calls for an open-ended FBI investigation of Kavanaugh’s past, it is important to re-emphasize that the FBI does not investigate nominees; it conducts background checks. As David Rivkin and Kristi Remington, both former senior officials who where deeply involved in overseeing nominee scrutiny, recently explained:
FBI background investigations are carried out by a special team within the bureau called Special Inquiry and General Background Investigations Unit. SIGBIU functions as a gatherer of facts. It doesn’t cajole or challenge witnesses and routinely offers them anonymity. It never proffers any credibility assessments or speculates about the motives of witnesses.
SIGBIU operates on tight deadlines and usually moves faster with Supreme Court nominations. The process begins and is completed well before the nominee’s Senate Judiciary Committee hearing takes place. Occasionally, SIGBIU is directed to conduct further interviews. Throughout the whole process, it operates under instructions from both the Justice Department and the White House Counsel’s Office.
Significantly, there is a firewall between SIGBIU and FBI’s criminal-investigative divisions. SIGBIU’s goal is to have witnesses be open and forthcoming. Agents routinely assure witnesses that nothing that they say during the interview will be referred for criminal investigation. Even more fundamental, the FBI’s velvet-glove approach to background investigations reflects its recognition that people they interview are not suspected of any crimes and cannot be coerced into cooperating or threatened with a grand jury subpoena. (Italics mine.)
The authors note that the “blatantly partisan and unfair demands” by Kavanaugh’s Democratic opponents are without historical precedent. (The utterly raw-sewage allegation, floated by Sen. Kamala Harris (D-CA) — pure assertion without any evidence — augurs for more such trash to turn up, even after a final vote.) It all amounts, said Alan Dershowitz, to “sexual McCarthyism.” Surely also a first, Judge Kavanaugh defended himself on the eve of the vote.
Arch NeverTrumper Bret Stephens praised Trump for standing behind the nominee and leftist bullying:
For the first time since Donald Trump entered the political fray, I find myself grateful that he’s in it. I’m reluctant to admit it and astonished to say it.…
I’m grateful because Trump has not backed down in the face of the slipperiness, hypocrisy and dangerous standard-setting deployed by opponents of Brett Kavanaugh’s nomination to the Supreme Court. I’m grateful because ferocious and even crass obstinacy has its uses in life, and never more so than in the face of sly moral bullying. I’m grateful because he’s a big fat hammer fending off a razor-sharp dagger.
A few moments have crystallized my view.… The first moment was a remark by a friend. “I’d rather be accused of murder,” he said, “than of sexual assault.” I feel the same way. One can think of excuses for killing a man; none for assaulting a woman. But if that’s true, so is this: Falsely accusing a person of sexual assault is nearly as despicable as sexual assault itself. It inflicts psychic, familial, reputational and professional harms that can last a lifetime. This is nothing to sneer at. (Italics mine.)
Stephens also cited a politically incorrect number as to rape accusations, relying on a study covering 2006-2010: False rape allegations are at least five times as prevalent as those for other crimes. About five percent of rape allegations are “false or baseless.”
Evocative of these troubled times: the last weekend of September saw as top search on Twitter & #Hashtag: “Kill Kavanaugh.” Theologian George Weigel assessed matters from Rome, noting that two sinister aspects of the crusade against the judge are a Roman circus-like blood-sport mob, and a quasi-theological “fideism.” The former’s applicability is self-evident; the latter Weigel summarizes:
The precise theological term for this mindlessness is “fideism”: a faith, or belief, that is impervious to reason and is indeed contemptuous of reason. That means it’s superstition, not faith. And if Senators Feinstein, Durbin, Hirono, Klobuchar, and the rest of the superstitionist Democrats cannot see in themselves the image of the judges who hanged putative witches in 17th-century Massachusetts, they should look in the mirror again — or perhaps have a look at Arthur Miller’s dramatic recreation of that abomination, The Crucible. (Italics mine.)
What has been called “the politics of dehumanization” has given us a grotesque cartoon depicting the nominee’s 10-year-old daughter praying for her “angry, lying, alcoholic… sexually assaulting” father.
The Senate Vote. Susan Collins (R-ME) gave a superb floor speech in explaining why she would cast the deciding vote putting Judge Kavanaugh over the top. Is it useful to compare her diligent, comprehensive consideration of the nominee and the events surrounding the nomination, with the opposition’s “Just win, baby!” take-no-prisoners effort. It was a model of senatorial discretion. By comparison, several key Democrats and major leftist activist groups announced their opposition immediately. She noted that one group actually sent a message to Senate offices with the name of the nominee in blank, before the White House announced President Trump’s pick. She rejected former justice John Paul Stevens’ late hit, in telling a Florida audience that Kavanaugh’s display of temper at the Sept. 27 hearing showed the nominee unfit to be confirmed.
After Susan Collins gave her brilliant defense of the fundamental values of procedural due process and the bedrock presumption of innocence, angry mobs filled the streets; a Women’s March poster called her a “rape apologist.” And, naturally, Hollywood celebs chimed in with their extensive vocabulary of derogatory expletives.
(At the SJC Sept. 27 hearing, Rep. Tom Tillis (R-NC) noted that activists had already reserved a Web URL address as part of a future effort to oppose the next Supreme Court GOP nominee.)
Bottom Line. With the 50-48 vote Saturday to confirm Judge Kavanaugh as the nation’s 114th Justice, it would be nice to look back and find that Sen. Collins’s speech marked a turning point in the domestic wars. One keen observer thinks that her speech “saved the Senate.”
But the raw passion of Democrats and their street mobs cannot be so easily quenched — as shouting protesters showed by repeatedly disrupting the final floor vote. Especially culpable is a truly stupefyingly hyper-partisan leftist mainstream media, utterly uninterested in exploring weaknesses in Christine Ford’s story, while probing every nook and cranny of Judge Kavanaugh’s high school hi-jinks, and floating every possible dodgy accusation.
We have entered uncharted waters, embarking on an Odyssey full of the terrors faced by Homer’s Odysseus. A raging, blind Cyclops, the hungry monster Scylla, the deadly whirlpool Charybdis, America’s demons proliferate at an accelerating pace. One critic warns, noting “so much hysteria being whipped up by trusted media outlets”:
Talk of California secession or breakup clouds the air. Leading progressive voices frankly state that our constitutional system has failed us, citing the Electoral College and the disproportionate influence of low-population states in the Senate. Vague cries to “rise up” don’t look so vague when masked Antifa demonstrators join the party. “We must not be enemies,” Lincoln counseled us in his first inaugural address. “Though passion may have strained, it must not break our bonds of affection.” Anyone feeling confident today that our bonds of affection are stronger than our passions?
Until this fall, I have maintained that nuclear annihilation by adversary terror states is America’s national security nightmare and main challenge. I am coming around to the view that our greatest threat is disintegration from within, descending inexorably into a Hobbesian war of all against all, facing a Sophie’s Choice between living (if that it the term) under a Leviathan state or seeing America sundered irremediably by unchecked multicultural identity politics, eventually sliding into a violent phase of our Second Civil War.
John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014).