The nature of discussion surrounding the testimony of Christine Blasey Ford has been on an odd trajectory, and with all due credit to her lawyers, her supporters and the Democrats on the Senate Judiciary Committee, they’ve managed to pull off a miracle. The problem, you see, is that Ford is a witness. She’s a witness who refused to come forward when the time was right to do something, if there was something to be done. And now, we’re discussing the reasonableness of her demands.
Since when do witnesses get to make demands?
Then, when Blasey and her lawyers balked at Republican terms — asking, entirely reasonably, that the F.B.I. first examine her story — Republicans acted as if she was being irrational and going back on her word.
These weren’t terms. Ford wanted to have her accusations considered without her name being known, her credibility assessed, her story questioned. It was entirely understandable why she would want this, on many levels, but it’s not her choice. What has been ignored is that this is a hearing about whether Brett Kavanaugh should be confirmed for the Supreme Court, not whether Ford was, in fact, sexually assaulted. If we walk away believing her, and not believing Kavanaugh’s denial, then sufficient doubt in him has been established. It’s true that this is a “job interview,” and it’s Kavanuagh’s burden to establish that he is worthy of the job.
This isn’t a criminal trial, nor should it be. There are no rules or evidence, standard of proof, presumptions, per se. However the reasons behind each of these remain sound reasons, foundations of our precepts of jurisprudence, and guide the process, even if the Committee need not be slaves to the mechanics of each.
Once the question of whether Kavanaugh sexually assaulted, possibly attempted to rape, Ford was sufficiently raised, the bell had been rung and could not be unrung, except by Ford. And she, by her attorneys, have been engaged in a constant waltz to do so.
The latest (if that can hold true long enough to finish this post) is that she refuses to testify on Monday, for no particular reason, and wants to be guaranteed safety and a fair hearing. What this means is anyone’s guess, as these are empty words without attachment to any specifics. But even so, Ford has been offered the opportunity to testify, and that’s all any witness gets. She doesn’t get to demand the brown M&Ms be removed from the bowl.
Ford doesn’t get to dictate who will question her, even though most of us desperately hope the committee uses competent counsel rather than allow senators to ham up the works. She doesn’t get to dictate the order of testimony, demanding the Kavanaugh testify first, a ridiculous proposition by any twist of reason. And, hard as this may be to swallow, she should not be allowed to demand that Kavanaugh, whose hearing this is, can’t be present. It’s not that the Confrontation Clause requires it, but that the reasons behind it remain intact. If you’re going to accuse someone of a heinous act, do so to their face.
The most substantive demand, and one joined by the Democrats on the Committee, is that the testimony be preceded by a full FBI investigation. This would slide down the gullet easier had Ford come forward publicly months before. It smells of gamesmanship now, the only purpose of which is to delay the hearing long enough for the Dems to take a shot at taking the Senate in the midterm elections, and to keep Kavanaugh off the Court for as long as possible.
But even if there are disingenuous motives behind the call for an investigation, isn’t it still the right thing to do?
What would such an investigation entail? The F.B.I. could investigate the facts surrounding the accusation itself. And there are facts. Was there a party? Where? Who was there? What do the attendees recall about that night? Did anyone see or hear anything that bears on the accusation? Did Dr. Blasey tell anyone what happened in the hours or days afterward? Did Judge Kavanaugh? The F.B.I.’s goal would be to corroborate what can be corroborated and refute what can be refuted.
Former Judge Nancy Gertner offers the most neutral arguments possible, that an investigation could just as easily refute Ford’s claims as corroborate them. But no doubt Judge Gertner realizes that it’s not nearly so simple. How does one do any of this? Given Ford’s dearth of basic information, they would be required to hunt down and find essentially every person with whom Ford and Kavanaugh went to high school and question them.
But what would they ask?* Ford has already said she never told anyone contemporaneously. Would they ask all the boys with whom Kavanaugh went to high school whether he told anyone he sexually assaulted a 15-year-old at a party? As no one has come forward to say that, and the likelihood of it having happened is essentially nonexistent, then what? Not even Judge Gertner, despite her great knowledge and skills, proffers anything beyond the most vagary of “investigate” that would illuminate much.
The list of excuses Judge Gertner recites panders to the current adoration of rationalizations, but fails to touch on anything relevant to whether Ford’s allegations are accurate. No doubt Judge Gertner knows this, as she was a trial lawyer. The “reasonableness” of excuses proves nothing about whether conduct happened, but addresses only the surrounding excuses for the failure of normalcy. It’s evidence of nothing.
Not having been elected to speak for anyone, I want to hear Christine Blasey Ford testify, tell her story and respond to real questions. I want to hear Brett Kavanaugh do the same. At this point, the circus is no longer fun (not that it ever was) and the resplendent arguments are all a steaming pile of sideshow. Ford raised the allegations, and it is now time for her to be a witness, like any other witness, or go home.
The likelihood remains that no mind will be changed by the testimony, that no “truth” will be revealed, and we will end this fiasco no wiser than when we started. But Kavanaugh remains the star of his melodrama, and Ford is just a bit player. If she has something to say, then say it. But enough with the swirling discussions about the propriety and reasonableness of Ford’s demands. Witnesses don’t get to make demands. They get to testify. That’s what it means to be a witness, even if that seems to have been forgotten by everyone and wholly ignored in the cries of outrage.
So Ford can testify or not, and let the chips fall where they may. And if you don’t like the way a senator has handled this, vote him or her out of office. That you hate or love Kavanaugh** has nothing to do with bringing this hearing to an end. That Republicans hold the Senate majority similarly doesn’t change because you really, really hate them, especially for what they did to Merrick Garland. Kavanaugh is the nominee, for better or worse, in this circus, and the show must come to an end.
*The comparison to the investigation of Anita Hill’s allegations against Clarence Thomas is unhelpful. Hill raised a discrete situation that could be investigated, and it was in three days. Ford provides none of the basic surrounding circumstances, leaving anything and nothing to investigate, searching for needles in haystacks, neither of which may exist.
**Not to further muddy the waters, but even if the Committee rejects Kavanaugh, the next nominee isn’t going to be Ruth Bader Ginsburg’s long lost twin.