Sex and politics intersected in an explosive controversy that has gripped the United States as Professor Christine Blasey Ford gave evidence last Thursday to the United States Senate about a sexual assault perpetrated against her in the summer of 1982 by Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy, on the US Supreme Court.
The Republican-controlled Judiciary Committee of the US Senate initially refused to hear Professor Blasey Ford. However, public pressure forced the Judiciary Committee to reopen the hearing.
Political considerations dominate the appointment of judges in the United States. This is of inestimable value to political parties generally but moreso with respect to the US Supreme Court, which stands at the pinnacle of one of the judicial branches of government. A liberal or conservative justice helps to shape the constitutional direction of the US into liberal or conservative path. A majority of judges of one or the other persuasion is a much-sought after political prize. The appointment of Judge Brett Kavanaugh will ensure a permanent conservative majority on the US Supreme Court for decades into the future. It is this prospect, and the fear that women will lose the right of choice over their reproductive status, that has driven the magnitude of the controversy over the nomination of Judge Kavanaugh.
The nomination has taken place at a time of enhanced struggle by women in the United States against sexual violence and for the dignity of women. During the election campaign, Donald Trump was accused of multiple acts of sexual assaults against women. He also promised to appoint judges who will overturn Roe v Wade, the 1973 Supreme Court decision, which gave constitutional protection to the right of women to choose. His election prompted the Women’s March on January 21, 2017, the largest in US history and which had a wide range of demands for civil rights, including women’s rights. The #MeToo movement against sexual harassment and sexual assault also emerged in October 2017 after accusations against Harvey Weinstein, the US movie mogul, were made by scores of women of sexual harassment and assault. Long standing complaints against comedian, Bill Cosby, gained prominence in October, 2014. He was charged, convicted and imprisoned last week. The Cosby case also helped to galvanize the #MeToo movement.
Professor Christine Blasey Ford’s evidence before the Judiciary Committee of the US Senate was widely described, across the political spectrum, including by President Trump, as being compelling and credible. Her demeanour was praised. Much of the respectful treatment of Professor Blasey Ford reflected the rise of the women’s movement and the disastrous Senate hearings into the nomination of Clarence Thomas in 1991. Anita Hill, a law professor, who gave evidence of sexual harassment by Thomas, was ridiculed and disbelieved, including by Democrats and has since been widely criticized and condemned. The problem, however, is that the credibility of Professor Blasey Ford did not lead to the acceptance of her evidence by Republicans. They even refused to accept the unanimous request of Democrats for an FBI investigation.
Professor Blasey Ford’s evidence did not quite reach the threshold of proof beyond reasonable doubt. She could not recall important details such as the date of the assault, the address of the house in which the assault took place, how she got home after the assault and others. But as many observers have pointed out, the event took place 36 years ago and the complaint is not a criminal charge requiring such a standard of proof. Professor Blasey Ford said that her civic duty was to put her experience before the US Senate so as to enable it to make a decision on Kavanaugh’s nomination, described by many observers as a job application. The issue was recognized as Kavanaugh’s credibility, character and suitability for appointment as an Associate Justice.
In an angry, intemperate and sometimes tearful, response in the Judicial Committee, Judge Kavanaugh attacked the Democratic Party, accused it of launching a hit job and was rude to individual Senators. He denied assaulting Professor Blasey Ford and said that he was not at the event. He admitted to drinking beer, sometimes to excess, but denied that he was ever so drunk that he could not remember what he was doing, a claim contradicted by his roommate and other friends who described him in scathing terms as “drunk.” He pointed to the several persons who said that they could not remember the event but mischaracterized their responses as denials that the assault took place. He disclosed his calendar diary to prove that the event was not mentioned but which in fact indicate that it could have occurred. His yearbook contains a reference to himself as “Renate Alumnius,” a derogatory reference to a young woman. The partisan diatribe and rudeness to Democratic Senators has raised the question of Judge Kavanaugh’s fitness to be a judge
The nomination process came to an abrupt halt when Republican Senator, Jeff Flake, whose supporting vote is vital in a Senate split 51 to 49, indicated after a passionate appeal by women victims, which was widely televised, and public opinion generally, that an investigation by the FBI into the allegations made against Judge Kavanaugh was necessary.