The most famous supposed clash between due process and the fight against sexual harassment has, in fact, little to do with process at all. The confirmation of Brett Kavanaugh to the Supreme Court says more about how we discuss due process than about how we should respond to harassment allegations.
The story will be familiar to most readers. In July 2018, Christine Blasey Ford, a psychology professor at Palo Alto University, wrote a letter to her senator, Dianne Feinstein of California. It stated that Donald Trump’s nominee to the Supreme Court, federal appellate judge Brett Kavanaugh, had tried to rape her thirty-six years before, with the assistance of another young man. Blasey Ford thought the senator should know, but the professor said she was not prepared to come forward publicly. “I expect you will maintain this as confidential,” she wrote. As Blasey Ford later explained, she knew the cost of coming forward would be great, and she had little faith her story would change the trajectory of Kavanaugh’s nomination. “Why suffer through the annihilation if it’s not going to matter?” she said.
Perhaps predictably, news of that letter eventually leaked in the lead-up to the Senate Judiciary Committee’s scheduled vote on Kavanaugh’s nomination. Feeling “her privacy being chipped away,” Blasey Ford decided to go public in an interview with the Washington Post’s Emma Brown. That article put a face to the accusation, provided further details about Blasey Ford’s allegations, and revealed a key piece of corroboration: therapist’s notes from 2012, which recounted Blasey Ford disclosing that she had been assaulted by students “from an elitist boys’ school” who were now “highly respected and high-ranking members of society in Washington.” She had not named Kavanaugh, but the description fit. Some advocates and Democratic senators announced they found the accusations credible.
Republicans, however, would run the show. They controlled the Senate, which the Constitution charges with vetting and confirming Supreme Court nominees. They would decide what process, if any, Blasey Ford and Kavanaugh received to test the allegations. Blasey Ford, her lawyers, and their Democratic allies insisted that the FBI should reopen its impartial background investigation into Kavanaugh to gather evidence about the allegations—probably the most reliable investigative process available at that moment. That, they explained, would ensure that any subsequent hearing about the matter included the fullest possible record.
One might have thought that Kavanaugh and his defenders would be eager for a thorough investigation to clear the judge’s name. Instead, the Republicans on the Senate Judiciary Committee insisted on rushing the proceedings. Proper process takes time, and the GOP did not want to delay a vote—the midterm elections were approaching, and the window to confirm a conservative justice before a possible switch in party control of the Senate was getting narrower. The Republicans wanted to schedule a hearing for just days after the allegations went public.
Chuck Grassley, the Republican senator from Iowa who chaired the Senate Judiciary Committee, publicly opposed any FBI investigation into Blasey Ford’s accusation. The FBI’s job in the confirmation process was simply to present a background check to the Senate, he said; that had already happened, and now it was the Senate’s job to make a decision. The Department of Justice, under which the FBI falls, also put out a statement. A new background investigation was unnecessary, it said, because “the allegation does not involve any potential federal crime.” (Unless the victim or perpetrator moves across state lines during the assault, sexual crimes are usually prosecuted by state offices.) Of course, Democrats were not asking the DOJ to start a criminal case. They simply wanted the FBI to reopen their original background check to investigate these new claims. But Grassley was firm: the “FBI investigation of Judge Kavanaugh is closed.”
Grassley was joined in his opposition to an investigation by fellow Republican senator Orrin Hatch. While Blasey Ford’s lawyers negotiated with Republicans behind the scenes about her possible appearance before the Senate committee, Hatch tweeted that the “FBI does not do investigations like this,” adding that the “responsibility falls on us”—that is, the Senate. This echoed Grassley’s position that “the job of assessing and investigating a nominee’s qualifications in order to decide whether to consent to the nomination is ours, and ours alone.” To be sure, the Senate is constitutionally assigned the job of giving “advice and consent” to a Supreme Court nomination. The FBI does not have a vote. But that’s like a judge saying that a detective shouldn’t investigate a crime because ultimately the court would hand down the verdict.
Both Grassley and Hatch understated the role the FBI plays in vetting the background of nominees in order to assist the Senate in its deliberative role. The law enforcement agency had already dug deep into Kavanaugh’s background to produce a report for the Senate’s benefit. That report was simply incomplete, as Blasey Ford’s accusations revealed. And reopening an FBI background check under such circumstances was hardly unprecedented. In 1991, the FBI had reopened Clarence Thomas’s background check at President George H. W. Bush’s request after Anita Hill and other women said the then nominee had sexually harassed them. At that time, Hatch stated that further investigation was “the very right thing to do.” But now, the Republican senators were proposing public testimony instead of an FBI investigation. The only alternative, they threatened, would be to proceed straight to a confirmation vote.
The Republicans’ argument that the Senate Judiciary Committee did not need the FBI’s help was disingenuous not only because it ignored the FBI’s usual role but because the committee refused to use the other investigatory tools at its disposal. Most importantly, it rejected calls from Democrats and Blasey Ford to subpoena the putative witness to the alleged assault: Mark Judge, Kavanaugh’s friend who, Blasey Ford said, had held her down during the attempted rape. As a matter of political tactics, one can understand the Republicans’ reluctance: Judge was, to put it mildly, a liability for Kavanaugh. Even if he did not directly corroborate Blasey Ford’s account, his earlier accounts of his time at Georgetown Prep made the assault seem more than plausible. In his 1997 memoir, Wasted, Judge recounted debaucherous adventures with his Catholic school classmates. Among these was a character by the name of “Bart O’Kavanaugh,” whose star turn in the book comes when he vomits and passes out in a car. More than once, Judge writes about waking up from a drunken blackout worried he might have hurt a girl. Later, Judge’s college girlfriend would say that Judge had told her that, during their Georgetown Prep years, he and a group of friends had taken turns having sex with a drunk woman. That sounds a lot like gang rape.
In short, if you were trying to figure out if Kavanaugh had assaulted Blasey Ford, Judge was a necessary witness—to the night in question, to the Georgetown Prep atmosphere, and to Kavanaugh’s behavior in high school. But if you were trying to confirm Kavanaugh, Judge was the last person you wanted to have testify.
Ultimately, the Democrats, and Blasey Ford, relented. The professor would testify publicly, as would Kavanaugh, without any preceding investigation. None of the other women who lodged additional allegations of sexual harassment against Kavanaugh after Blasey Ford came forward would be given even that small privilege of testifying. Most notable among them was the nominee’s former Yale College classmate Deborah Ramirez, who claimed Kavanaugh had thrust his penis at her face at a party. Later, after a thorough investigation, reporters from the New York Times described both Blasey Ford’s and Ramirez’s stories as credible but said that Ramirez’s “could be more fully corroborated” because it was “the talk of campus” at the time. The journalists identified at least seven people with knowledge of the event to whom the FBI or Judiciary Committee might have spoken, as well as a classmate who says he saw Kavanaugh similarly force his penis on another girl.
But Republicans weren’t interested in investigating these allegations or allowing Ramirez to testify. They wouldn’t even speak to her. Leaked staff emails revealed that while Republican senators publicly claimed to be seeking discussions with Ramirez’s lawyers, their aides had actually shut down offers of phone calls with them. The New Yorker also reported that senior GOP staffers had learned of Ramirez the week before her story went public, and yet, during that gap, Senate Republicans had spoken out in favor of a rush to confirmation, rather than a pause to investigate the additional allegation.
A week and a half after Blasey Ford spoke publicly for the first time, she and Kavanaugh both testified before the Senate Judiciary Committee. No other witnesses or alleged victims spoke. Many readers, I am sure, remember the testimony vividly. Her assailants’ laughter, Blasey Ford said, was “indelible in the hippocampus.” Kavanaugh, red-faced with anger, insisted the allegation was “revenge on behalf of the Clintons.”
The Senate Judiciary Committee voted on Kavanaugh’s nomination the next day. After commotion and delay in the hearing room, Jeff Flake, a Republican senator from Arizona, forced a modest compromise: they would vote Kavanaugh out of committee for consideration by the full Senate, but only if the FBI would conduct an investigation. Later, Flake would attribute his decision, in part, to the many survivors he had heard from, including a group who confronted him in a Senate elevator. “I got calls and texts from women I never thought I’d hear from in that regard, saying, ‘Here’s what happened to me when I was young. Here’s what happened to me 30 years ago,’” he explained.
Grassley agreed to the investigation, at least in theory. A final vote on Kavanaugh’s confirmation would be delayed—briefly. But, in the end, the investigation was little more than political theater, a symbolic nod to the gravity of the allegations. The White House severely limited the scope of the FBI’s inquiry, even as Trump falsely insisted on Twitter that he had not done so. FBI officers interviewed only ten people, despite the fact that a far longer list of witnesses had been established by Senate Democrats, Blasey Ford, and Ramirez. Absent from the roster of interviewees were many central figures, including Judge’s ex-girlfriend, whom he had told about the possible gang rape, and most of the women who had accused Kavanaugh of assault. They didn’t even interview the nominee himself. In the end, after less than a week of investigation, the FBI reported that it found “no corroboration” for the allegations. And for senators on the fence, inheritors of the centuries-old corroboration requirement now abandoned by the courts, that was enough. The Senate confirmed Kavanaugh by a vote of 50–48.
In a long speech in which she announced her critical vote, the supposedly moderate Susan Collins, Republican from Maine, explained one reason for her vote: due process. “The Senate confirmation process is not a trial, but certain legal principles—about due process, the presumption of innocence, and fairness—do bear on my thinking and I cannot abandon them,” she said.
The senator did not explain how voting against Kavanaugh would have denied him due process.
LISTENING TO HIS conservative defenders, you would think a star chamber of Senate Democrats had interrogated Brett Kavanaugh on the rack. From the time Blasey Ford came forward, they bemoaned the Democrats’ supposed disregard for due process—even though it was the Republicans who fought against process every step of the way. On Fox News, conservative author Victor Davis Hanson framed the issue as a Manichean choice between law and chaos. “Are you for due process or are you for revolutionary fervor?” he asked. “Are you for reason or are you for emotion? Are you for the street antics that Antifa brought into the Senate or are you for custom and practice of the U.S. Congress?” His invocation of “Antifa,” as best I can tell, was meant to refer to feminist activists with no known connections to the radical anti-fascist group, the ones who confronted legislators aggressively but nonviolently in the Senate halls—as though that protest had somehow overwhelmed Senate deliberations.
Hanson’s assignment of “emotion” to Democrats and “reason” to Republicans reeked of obvious sexism: the hysterical ladies are out of control, and the logical men must put them in their place. It was also backward. The Democrats had demanded the opportunity for experts to collect and review evidence to make a determination of fact. The Republicans had, from the start, rallied against inquiry and reason, refusing under the pretext of fairness to gather relevant information. Indeed, many observers believe that Kavanaugh was saved by Lindsey Graham’s fiery speech during the hearing, a highly emotional appeal to his colleagues, and the American public, to protect our good men.
On a similar note, conservative columnist Rich Lowry opined in the New York Post, “When our system of justice is at its best, it judges each individual … on the basis of the evidence, and with an adversarial process.” To Lowry’s mind, the Senate Democrats’ approach was instead akin to “the infamous kangaroo-court apparatus for adjudicating sexual-harassment and assault cases from college campuses—which often denies the accused basic protections of due process.” Lowry took particular issue with a statement from Senator Kirsten Gillibrand of New York. She had decried that “by refusing to treat [Ford’s] allegations properly,” the Republicans were “telling women across the country that they’re not to be believed.” “No, that’s not what they’re telling women, or anyone else,” wrote Lowry. “The message is that they’ll try to find the truth before crediting an accusation.”
But, of course, the Republicans hadn’t tried to find the truth through evidence and process. They had hampered any meaningful attempt to do so. With his reference to campus discipline, Lowry seemed to bristle at the very idea that the truth of a sexual assault might be investigated outside the context of a trial. He insisted on two contrary positions at once. Anything less than a full adversarial process in the style of a trial, he suggested, is a kangaroo court. But at the same time, Gillibrand and those like her were unreasonable, even “otherworldly,” to expect the Senate to undertake the truth-seeking steps requested by Blasey Ford, most importantly an opportunity to present witnesses. The implication, given these premises, is that the Senate should not bother looking into the harassment allegations at all.
Some had hoped that the Kavanaugh confirmation would allow the Senate, and the country, to show it had grown up since Clarence Thomas’s parallel battle decades before. Instead, many of the same notes were repeated. On the Newsmax website, Clarence McKee compared Democratic opposition to Brett Kavanaugh, who is white, to the lynching of Emmett Till. “For Kavanaugh, just as was the case for black males in the old South, there is no presumption of innocence and no requirement of due process by his enemies,” he wrote, pointing out that multiple Senate Democrats had said they believed Blasey Ford. “Under the Democrats’ new no-due-process standard, any accusation of sexual assault by a woman will be an education and career death sentence for fathers, husbands, and sons throughout the nation in all professions.” The presumption of innocence, in McKee’s telling, meant that Kavanaugh’s version of the story had to be taken at face value, and no opportunity should be afforded to prove otherwise.
In City Journal, published by the right-wing Manhattan Institute think tank, Adam Freedman wrote an article titled, simply enough, “Due Process for Judge Kavanaugh.” There, he bemoaned that Senator Gillibrand and Connecticut Democrat Richard Blumenthal had professed to believing Ford’s story “though she has yet to testify.” “This should set off alarms for anyone concerned about the old-fashioned notion of due process—that is, the procedural fairness that Anglo-American law guarantees to those accused of crimes,” Freedman wrote, eliding the fact that Kavanaugh was not facing criminal charges and the senators were expressly political actors, not judges sworn to neutrality. Nowhere did Freedman and his fellow commenters note that prior to the hearing, plenty of Republicans had already decided that Blasey Ford was lying. Before she testified, Lindsey Graham declared on Fox News that nothing she said could change his plan to vote for Kavanaugh’s confirmation. “What am I supposed to do? Go ahead and ruin this guy’s life based on an accusation?” Graham said. “Unless there’s something more, no, I’m not going to ruin Judge Kavanaugh’s life over this.” Apparently, a decision-maker was only required to be neutral and open-minded if it benefited the accused.
There’s one procedural objection made by Republicans that I think does have a shred of validity as a matter of ethics, if not law: that Democrats withheld the information until the last minute. Perhaps Feinstein truly wanted to respect Blasey Ford’s wishes, as reporting by New York Times journalists indicates. Or perhaps Democrats concealed the information until just before a vote to maximize the chances of scuttling Kavanaugh’s nomination altogether. Either way, they foreclosed the opportunity of having the allegation investigated in the normal course of events, prior to the first hearing. In criminal proceedings, prosecutors are allowed to add on new charges late in the game, to bring multiple cases against a defendant over many years, or (as New York allowed until 2020) to surprise defendants with last-minute evidence. Kavanaugh had no inherent right to have his entire background check completed in one single take with no interruption in the middle. But the timing has the appearance, if nothing else, of poor political sportsmanship on the Democrats’ part. That will trouble some and seem to others simply a reflection of the nature of the Senate in 2018.
Regardless, it’s difficult to credit the Republicans’ calls for due process when they were the ones, at every turn, demanding less process. The Republican senators were the ones who rejected the Democrats and Blasey Ford’s call for an investigation before the hearing. They were the ones who refused to allow an investigation of other alleged victims’ claims, at the hearing or otherwise. Though we have Flake to thank for the post-hearing investigation, it was the Republican administration that placed such absurd limits on that inquiry as to render it nothing more than theater, a box to be checked so the Senate could move on to a vote. And the conservative commentators decrying Kavanaugh’s treatment as an affront to due process simultaneously derided Democrats’ reasonable calls for a competent inquiry.
An ordered truth-seeking inquiry is not what Blasey Ford’s critics meant by due process. What they meant was that the professor had somehow violated Kavanaugh’s rights just by accusing him. They meant that it is unfair for a man of his stature to face sexual assault allegations—regardless of whether they are true. As my husband remarked at the time, that is not due process. It’s dude process.
KAVANAUGH’S CONFIRMATION IS an obvious example of defenders of accused men wielding due process arguments disingenuously. We could leave it there, perhaps. But it would be unsatisfying, and naïve, to end on a note of outrage that Kavanaugh’s supporters were less than consistent and honorable in their campaign. Of course they were hypocritical—this is politics! Kavanaugh’s nomination held partisan, ideological, world-altering stakes that thoroughly dwarfed the personal consequences. In fighting for Kavanaugh, the Republicans were not fighting for a man they felt was innocent. They were fighting to fulfill an electoral promise they had been running on for decades: a true conservative majority on the Supreme Court. The party, conservative commentators, big donors, and many voters knew that replacing the more moderate Justice Anthony Kennedy with his former clerk Kavanaugh would likely usher in a new legal era. Fighting for Kavanaugh meant fighting for a Supreme Court ready to outlaw affirmative action, turn away immigrants, halt and perhaps reverse progress on LGBTQ rights, gut voter protections, undermine the rights of criminal defendants, and, most importantly to the conservative movement, overturn Roe v. Wade.
For the same reasons, Democrats and their allies fought against Kavanaugh’s nomination well before Blasey Ford’s allegation became public. Certainly, in the final weeks of the confirmation process, many, including many grassroots feminist activists, were motivated by the belief that her account was true. They believed that allegations of sexual harm perpetrated by powerful men must not be brushed aside, as they have for so long. But this does not mean that fierce opposition to Kavanaugh was apolitical, or that it wasn’t deeply intertwined with progressives’ serious concerns about the positions Kavanaugh would take as a justice. It’s hardly controversial to acknowledge that Senator Gillibrand was never going to vote for Kavanaugh. Of course her call for Trump to withdraw Kavanaugh’s nomination was political. In this polarized age, how could any moment of the whole confirmation process not be?
After so much ink spilled over Kavanaugh and due process, then, I don’t think there’s actually much to learn about the latter from the former. What useful lessons could we draw about how to conduct an investigation, or how to structure a hearing, from such an exceptional circumstance, in which the truth of the matter was—for everyone involved—only one of many priorities? I think analyzing the whole mess is most useful, instead, to understand what Kavanaugh means not for due process itself but for how we talk about due process.
On this score, the Kavanaugh hearings served to launder bad due process arguments that had been floating around the national dialogue. In went conservative instincts about white male vulnerability; out they came on the other side of the confirmation, cleaner and more legitimate-looking. During the Senate hearing, Graham warned that “good people” would no longer be willing to put themselves forward for government nominations “because of this crap”—presumably a reference to the Democrats probing allegations of sexual assault. Kimberley Strassel of the Wall Street Journal described the stakes similarly: “If we are willing to overthrow all of due process in the country and just say, OK, that won’t be the standard anymore, one accusation is enough to lose you your job, your life, your home, we’ve got some really big problems.” Never mind that Kavanaugh was at no risk of losing his life, his home, or his existing job, none of which were at stake in the confirmation process. He was guaranteed lifetime tenure in his judgeship; the senators were only considering whether he deserved to be given a new position.
It was during the Kavanaugh confirmation process that Trump issued his MRA-like warning that “it’s a very scary time for young men in America.” Meanwhile, an ad by “Moms for Kavanaugh” started with heartwarming images of a multiracial group of babies growing into honorable young men—before jumping to Kavanaugh bemoaning, during the hearing, that he had been “destroyed” by the allegations. In bold text, the ad warned, “If it can happen to him … it can happen to our sons.” “I’ve got boys and I’ve got girls,” the president’s son Donald Trump Jr. told a British tabloid in the midst of Kavanaugh’s confirmation process. “When I see what’s going on right now, it’s scary.” Asked whether he feared more for his sons or daughters—that is, whether he feared more that a son would be falsely accused of sexual assault, or that a daughter would be assaulted—he chose his boys.
That false accusations are more of a threat than rape itself is an instinct as old as Lord Hale, as old as the Bible, and demonstrably false. To rehearse the statistics again: a young man is more likely to be sexually assaulted than to be falsely accused of rape. Even if Don Jr. only cared about his sons, he should have been more worried about them being assaulted than accused. But the outsize fear of good men being destroyed by false allegations was never about facts. It is about a millennia-old male hysteria that absolute male authority might be threatened, heightened today as white men—despite their continued dominance—feel the threat that progress poses to their power.
And it is, perhaps, for that reason that Kavanaugh serves for many as the perfect example of the excesses of Me Too. His ordeal, in their eyes, confirms everything they already knew about the precariousness of men now that women can so easily come forward with allegations. “You have a lot of women that are extremely happy” about Kavanaugh’s ascension to the highest court, Trump said after the confirmation. “A tremendous number of women. Because they’re thinking of their sons, they’re thinking of their husbands and their brothers, their uncles, and others.” More recently, conservative authors Mollie Hemingway and Carrie Severino marketed their book on the Kavanaugh confirmation process, Justice on Trial, as a warning about the risks of false accusations: “A good person might [hold] the naive belief that what happened to Kavanaugh won’t happen to him because he is a good person. But it can happen, it does happen, and it just happened. The question is whether America will let it happen again.” In 2019, in the right-wing Federalist magazine, writer Daniel Buck held up Kavanaugh and Tom Robinson—the Black man wrongly accused of rape in To Kill a Mockingbird—as parallel victims of failed process for sexual accusations. Robinson was, of course, convicted contrary to overwhelming evidence and then killed by prison guards. Kavanaugh is a Supreme Court justice.
At the end of the day, Justice Kavanaugh is a particularly poor example of the supposed outsize power of lying women over innocent men. Most of the allegations against him were dismissed out of hand. He was provided a decent process, and he and his supporters rejected calls for a better one. He got to present his side of the story. And then he got the job. Far from a poster boy for male vulnerability to false accusations, Kavanaugh is a much better counterexample. His confirmation serves as terrible proof, for the generations of women who watched the hearings and believed Blasey Ford, that, even now, powerful men will be shielded from the consequences of their violence—that no matter how credible we are, our stories and all the proof we can muster will be sidelined, ignored, trivialized. Blasey Ford was right: we will suffer annihilation, and it will not matter. Indelible in the hippocampus is his confirmation.
Yet in the process of confirming base fears, Kavanaugh legitimized them, replacing the stink of men’s rights activism with the familiar air of mainstream politics. One research firm found that the confirmation process “may have increased hostile sexism” among Republican men. They are, post-hearing, “less likely to believe women in cases of sexual harassment and assault.”
The most important lesson from Kavanaugh’s confirmation, as I see it, is that he does not stand for the putative crisis many insist he does. He doesn’t teach us what process should look like, nor does his confirmation stand as a verdict against Me Too. Kavanaugh, as a major figure in the history of sexual abuse allegations, is no more than a vessel for conservatives’ worst fears about the twilight of white male impunity. And from his seat on the Supreme Court, surveying the crowd in his long black robe, he is proof the sun has not yet set.