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With Outrage and Injustice for All

Itinerary of a thought about the Kavanaugh controversy and the public significance of a fair hearing

“I merely took the energy it takes to pout, and I wrote some blues.” -Duke Ellington

As readers of this column know, I believe that Trumpism — the Trump administration, the Republican Congress, and the Trumpist Republican party — represents a profound threat to liberal democracy, human rights, social justice, and public decency. I am outraged by Trumpism, and revolted by it, and I am inclined to welcome and embrace anything that disrupts its progress. Professor Christine Blasey Ford’s allegations have done this. They have halted the Republican effort to steamroll Kavanaugh’s confirmation, even if the halt turns out to be only temporary. And they have brought to the fore questions of sexual harassment and violence that must be taken much more seriously by our society and by our legal system. This pleases me, and I am happy to stand in solidarity with everyone involved in supporting and now orchestrating Professor Blasey Ford’s public stance.

***

At the same time, while I am moved to stand in solidarity with Professor Blasey Ford, I am also discomfited by some of the ways that this controversy has been cast, by both her supporters and her opponents, as a story that is primarily about her (and Kavanaugh) rather than about the broad public issues at stake. It is important to be concerned about her plight as a woman who has suffered and who now suffers more. It is also important to recognize that the controversy is less about her than it is about gender equality, civic equality, political due process, and the fate of liberal democracy itself.

***

Social movements are fueled by a complex mixture of “reasons” and “passions.” Outrage plays a crucial role in social movements. Militancy also plays a crucial role. Social movements require leaders, and activists, who have a particularly strong and “instinctive” sense of right or wrong; who can quickly and confidently spring into action; who are willing to devote the time and energy, and to endure the sacrifices that most people, however ethical and well-intentioned, are rarely able to endure; and who can motivate others to do the same.

***

The #MeToo movement is a social movement, broadly shaped by the current politics of feminism and gender equality, and passionately, and understandably and legitimately, fueled by outrage about the pervasiveness of sexual discrimination, harassment, and assault. (The movement was also no doubt further fueled by outrage that the first female presidential candidate of a major party was defeated by a notorious misogynist who has long made no bones about his misogyny and sexism and who behaved like a sexist pig on the campaign trail and has continued to do this every day of his presidency.) #MeToo is not a graduate seminar organized according to a discourse ethic — though all too many university graduate seminars have involved forms of inappropriate behavior that have inspired #MeToo. #MeToo activists, like all activists, are passionately motivated by their issue; they often display tunnel vision and sometimes reduce complex situations to binary terms; and they sometimes overreach. In other words, they are social movement activists. And without such activists, and without their activism, there would be no movement. This is true for #MeToo, as it has been true historically for the abolitionist or labor or suffragette or civil rights or peace movements. And without such social movements, there would be no social progress.

***

I strongly support #MeToo, and strongly sympathize with and understand the way that many feminist colleagues and #MeToo activists have sprung to the support of Professor Blasey Ford.

***

Yet as I have thought about the current controversy surrounding Kavanaugh and the Blasey Ford allegations, I have felt a little uncomfortable. Not about whether Kavanaugh ought to be opposed. I absolutely oppose him, and for many reasons. Not about whether he is an arrogant, entitled sexist prick whose personal history ought to be taken seriously, or about whether Blasey Ford’s story ought to be taken very seriously, and is probably even fully accurate. I feel very comfortable affirming these things. But I do worry about whether certain important distinctions between “public” and “private” are in danger of being lost in the current discussion, and about whether this might contribute, if in a small way, to the further diminishment of a public sphere that is already greatly impoverished.

***

A short story: I broached the topic of the Kavanaugh confirmation and the Blasey Ford allegations in my undergraduate class last week because it is relevant to our recent class discussions of Seneca Falls and women’s rights; because conversations about sexual harassment and violence are current on our campus and relevant to all of our students, all too many of whom experience this violence as victims, perpetrators, or bystanders; and because it is important to discuss current events in class. Many students immediately saw the links between Blasey Ford, #MeToo, and the Seneca Falls Declaration of 1848. Many expressed sympathies with Blasey Ford. And then a student raised her hand. A woman who I will call “Jes,” a fine student who has often contributed to class discussion, and whose comments place her somewhere left of center.

This is a paraphrase of what Jes said:

“I know this might be a little awkward, but I am a trans woman who has recently transitioned. When I was in high school I briefly had an affair with one of my male friends. It was initiated by him. But then he became ashamed about what he had done, and he accused me of sexually assaulting him, and because of who I was no one believed me, and everyone took his side, and I was suspended. I think it’s really important to say that not all accusations are fair, and I think it is important not to rush to judgment. Due process is important.”

Jes is a brave and a smart young woman.

And such teachable moments come along all too rarely.

And so I talked with my students about “intersectionality,” and about how Jes’s story complicates a simple binary narrative about “men” and “women.” As a woman, Jes identifies with Blasey Ford. But as a trans woman who has herself suffered from a rush to judgment, she resists simply treating Blasey Ford as a “rape victim” or denouncing Kavanaugh as a rapist. For in this particular instance she does not (yet) know whose story to believe, and she is reluctant to automatically take the side of an accuser simply because of who the accuser is or because the accuser is accusing.

And then we talked about the complexities of judgment in many situations, and of some of the meanings of “due process” and “fairness,” and the distinctive reasons why “due process” might be particularly important in certain legal settings, but might have different meanings in other settings, but that in all settings it is good to be as mindful as one can be.

Distinctions are important.

***

Many commentators, including some loud “Never Trump” Republicans, have expressed concerns that Brett Kavanaugh is not being afforded the “due process” that he is owed. Bret Stephens, for example, expressed such sentiments in this past Saturday’s New York Times. But what exactly is Kavanaugh “owed?”

The Senate hearings and deliberations regarding the confirmation of Kavanaugh’s nomination are constitutionally prescribed proceedings. But they are not legal processes determining either Kavanaugh’s civil or criminal liability. In a certain sense, Kavanaugh is not even the subject of these proceedings. The Supreme Court, the vacancy of one of its seats, and the question of who should fill this vacancy — these are the real subjects. The general notion of “innocent until proven guilty,” and the more specific standards of “beyond a reasonable doubt,” play an important role in popular understandings of legal proceedings, and rightly so. But the current proceeding is not a legal proceeding in this sense, and those ideas simply do not apply. And Kavanaugh is, strictly speaking, owed nothing except an expectation that he will be treated in roughly the same manner as other previous nominees, all political appointees to a supremely political position. This is an expectation and not a right. If things become unpleasant for him, he can always withdraw his candidacy and walk away. He is not obliged to endure the proceedings — unless he wishes to be confirmed as a Supreme Court Justice. More importantly, while he has certain rights under the law, as an individual citizen and as the holder of a federal job, he has no right to be taken seriously as a candidate for Supreme Court Justice, and surely has no presumptive right to be legally authorized to serve as a Justice. To impugn the seriousness of his candidacy or to obstruct his ascendancy to the Court is no more an “injustice” to him than it is an “injustice” that millions of other people are not being considered for this job. No one has a right to the job. And any nominee must be required to pass public muster and to give a credible public accounting of themselves and their actions.

It is true that Kavanaugh’s reputation has been damaged by Blasey Ford’s allegations. Whether this damage is deserved or not has yet to be determined, and in a moral sense it is unlikely ever to be conclusively determined. It might be true that in a broad ethical sense it is almost always wrong to “rush to judgment” about people. But such an ethical norm has no legal or political standing. And the sympathy Kavanaugh might claim for himself, or might be accorded to him by his sympathizers, is simply a subjective ethical judgment. It has no binding force on the great many people, women and men, whose experience leads them to sympathize not with Kavanaugh, the rich frat boy, but with Blasey Ford, his female accuser.

More importantly, this idea that Kavanaugh’s reputation ought not to be “tainted” without “due process” — we might call this a notion of “public civility” — is utterly belied by the broader politics surrounding his very nomination.

Consider that Kavanaugh worked as Kenneth Starr’s under-laborer during the Clinton impeachment, and is known to have been involved in the spreading of vicious and unsubstantiated lies about Vince Foster and Hillary Clinton that surely smeared their reputations without recourse.

Consider that Kavanaugh has only become a Court nominee because Trump is President, and that Trump’s entire political ascendancy rests on his vicious Birtherist slanders of Barack Obama and his racist and xenophobic demonization of Mexicans and Muslims, his vilification of the press, etc. What about those smeared reputations? Kavanaugh’s current elevation rests upon them.

Consider that upon his nomination, Kavanaugh fulsomely praised Trump, declaring: “Mr. President, thank you. Throughout this process, I have witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination. Mr. President, I am grateful to you, and I’m humbled by your confidence in me.” In a sense, these words are simply gracious and polite. But in a deeper sense, they are an obsequious homage to a vicious man who demeans others and poisons our politics on a daily basis. Think about every awful thing that Trump has said and done. Do these things trouble Kavanaugh? Apparently not. He stands with Trump. He has only kind words for our Slanderer in Chief.

The demand that Kavanaugh is owed a “civility” that he and his political patrons regularly mock and disparage is laughable. It does not deserve to be taken seriously.

Kavanaugh, strictly speaking, is owed nothing by anyone.

He is free to walk away at any time, with his federal judge robe and job and title and his wealth and his political connections and the adulation of his right-wing fans. Let him go.

***

What is Professor Blasey Ford owed? This seems more complicated to me.

First, as a private citizen she is obviously entitled to the protection of the law. If she is currently the subject of death threats, then she is entitled to police protection and to a serious investigation of the threats. More importantly in this case, as a woman who alleges that she was the victim of a sexual assault, she is entitled to have her allegations taken seriously by the criminal justice system. There are, obviously, statutes of limitations for many crimes. It would also appear that in the state of Maryland there is no statute of limitations for the crime of rape or attempted rape. Blasey Ford thus has the right to file her charges with the relevant police agencies, and to expect there to be a serious investigation of the allegations; a fair consideration of prosecution; and the due process that is owed all crime victims according to standard practices of criminal justice (which also involve rights of the accused). All victims of sexual assault have this right.

One of the great achievements of #MeToo is that it has brought to the fore the ways that our legal system does not treat these crimes with due seriousness and does not treat their victims with sufficient respect.

Blasey Ford, like all people who come forward with allegations of assault, has a right to seek criminal justice.

And yet she has not (yet) chosen to exercise this right. And the current controversy is not a controversy about criminal charges (even if Trump seeks to slander her by casting aspersions on her reluctance years ago to file attempted rape charges).

Blasey Ford is also entitled, as a private citizen, to seek civil remedies for whatever abuse and harm she claims to have suffered. Such remedies can be pursued in a court. But a great many private institutions — universities, corporations — have their own administrative procedures for handling grievances, including charges of sexual harassment and assault. If Blasey Ford feels like she has suffered damages, from Kavanaugh or any other harasser, she is entitled to seek redress through all civil means, and eventually to bring a civil suit against those who have damaged her. In such situations there are standards of due process that are very important. For too long women were denied access to such civil redress. And while the law now incorporates the means of such redress, in a great many ways, standard features of due process, and also elemental respect for individuals, have typically been ignored in cases related to sexual discrimination and violence. It is to the great credit of #MeToo that it has made it much harder to ignore these things.

***

Professor Blasey Ford, like any woman and indeed any person in her situation, is entitled to legal due process, and to the basic respect and consideration accorded to parties and witnesses involved in legal proceedings. She is entitled to this — she is due this — in criminal proceedings and in civil proceedings.

But Senate hearings are neither criminal nor civil trials. They are constitutionally prescribed, political and presumably deliberative proceedings held for the purpose of doing public business — and in this case for the purpose of deciding on a Supreme Court nomination.

Having made her accusations, first privately and then publicly, Professor Blasey Ford has made herself a very important witness in the Senate proceedings to determine whether or not Kavanaugh is fit to serve as a Justice and ought to be confirmed. Blasey Ford has legal rights as a potential accuser in a criminal proceeding, and legal rights as a potential litigant in a civil proceeding. But she does not have a right to be heard by the Senate, any more than any other individual, simply by virtue of making a public accusation about a public figure, has a right to be heard by the Senate.

As a witness — and even the Republicans now regard her as a witness — she has a right to the standard forms of respect accorded witnesses in such proceedings, with regard to scheduling and to the norms governing testimony, cross-examination, etc. — rights that were manifestly denied to Anita Hill, for example. She also has a right to protection from the threats being made against her because she has stepped forward as a witness.

As a witness in a very public hearing that involves questions of sexual harassment and assault, Blasey Ford (along with her many feminist supporters) deserves to be taken especially seriously given the history of ignoring her concerns and the political importance of women as a constituency of citizens. Women citizens, as citizens, have the right to speak loudly in public, and because our society has for so long refused women this right, it is especially important to nurture public spaces where they can speak, be heard, and treated with respect.

But this is different than saying that she has a “right” to be heard by the Senate or that Senate Republican refusal to honor the conditions she has outlined constitutes a denial of her “right.” (Indeed, even Trump now states, disingenuously of course, that she has a right to be heard. “Let her speak,” he says, if with derision. Of course, he wants to let her speak — and then ignore everything she says.)

As a private citizen, Professor Blasey Ford surely has the right to refuse to testify unless reasonable allowances are made so that her testimony is not harmful to her (and unless she is served with a subpoena). And insofar as the Senate’s Republican leaders feel the need, for political reasons, to allow her to testify, then they ought to do everything in their power to establish conditions that allow her to testify in a dignified way — and it appears that a suitable compromise has now been reached. But these are not things that are strictly speaking owed to her. They are simply things she has reason to expect and indeed demand if she is going to be expected to freely offer her testimony.

***

While Blasey Ford has many legal rights, and while she has an ethical right to have her public allegations treated with a basic decency and respect by all involved in the Kavanaugh confirmation process, she does not, strictly speaking, have a right to be heard by the Senate Judiciary Committee in the manner that suits her.

But we as citizens have a right to hear her, and we have a right to expect that the Senate will arrange for her testimony as part of the process of seriously vetting Kavanaugh and treating the confirmation of this Supreme Court nominee with the seriousness it deserves.

And indeed, this is really what Blasey Ford and her lawyers have been demanding for over a week.

They are demanding a very serious investigation of their very serious allegations.

They are not demanding any special remedy or dispensation for Blasey Ford as an individual woman who has suffered from a long-ago harmful and traumatic experience. They are publicly declaring that they have information that is crucial to the Senate’s assessment of Kavanaugh, and that they are willing to publicly share this information, but only as part of a serious process that involves the gathering of all proper testimonies, and the hearing of all relevant witnesses according to normal standards of Congressional testimony that are typically applied to all witnesses who appear (indeed, initially Blasey Ford indicated a willingness to testify publicly only after an FBI investigation; it is the Republicans who thus far have refused to seek such an investigation). Indeed, some of Blasey Ford’s most recent demands — for example the demand to be questioned by the male Republican Senators rather than by their female staffs — only make sense on the premise that her main concern, now, is the public propriety and public appearance of the proceedings, and not her own personal comfort level (for it is quite obvious that the [Neanderthal] male Republican Senators will be much more rude and insensitive to her than will be properly trained and professional female lawyers, and yet it is the former that she now wishes to face, in a very public way, and for a public purpose).

***

Last week I posted a thought on Facebook: that while only Christine Blasey Ford — in consultation with her family, friends, and conscience — can decide whether or not to testify, and while in a human sense this decision ought to be entirely up to her, I also hoped that she would testify, even if in a limited way, because I thought that at this point only her testimony might be able to force a real consideration of her allegations and also stand in the way of Kavanaugh’s confirmation, and that without her testifying in some fashion, at least to render her accusation official, the Republicans would be able to claim that there was no reason for delay.

A number of friends responded critically to this sentiment, declaring that I was being insensitive to the ways that Blasey Ford was being mistreated by Senate Republicans.

Only Blasey Ford can decide what constitutes her “mistreatment.”

Chuck Grassley and his colleagues are repulsive people who have said and done sexist things. They have no doubt behaved rudely and with great insensitivity to Professor Blasey Ford’s allegations and her subsequent requests regarding her testimony. This behavior surely warrants criticism, and perhaps even outrage. And the recent words and deeds of Trump, who has disparaged Blasey Ford and dismissed the seriousness of the challenges faced by victims of sexual harassment and assault, surely warrant outrage.

At the same time, the real outrage here is the outrageous way that the Republicans, in the Senate and the White House, are making a mockery of the confirmation process, by seeking to rush it and now by refusing to treat Blasey Ford’s allegations with the seriousness they deserve.

We should be outraged by Senate Republican treatment of us as citizens who deserve to have questions of sexual harassment and assault be treated with the utmost seriousness in our public political life, and deserve the political justice associated with a fair Senate deliberation conducted with all due diligence .

If Senate Republicans refuse to call other witnesses; or refuse to seek a further FBI background investigation; or insist on rushing a vote regardless of what is disclosed in initial testimonies; then they will be perpetrating a political injustice on American democracy. It won’t be their first such injustice. But it will be further reason to critique their actions; protest the results of their actions; and mobilize to vote them out of office.

Senate Republicans do not owe these things to Blasey Ford, who will derive no personal remedy for her pain and suffering from this process. They owe these things to the American public. They should call Mark Judge as a witness not because Blasey Ford wants this. They should call him because he is a witness and their duty to the Constitution requires them to conduct a real hearing and not a pro forma one. We have a right to nothing less.

***

In a human sense I feel for Professor Blasey Ford. In a civic sense, I demand that her allegations be treated seriously, and that she not be demeaned for having made these allegations (this is not a justiciable demand; but it is a politically enforceable demand — if we do the right things as citizens), and surely that she be protected from all of those who now threaten her.

But the Senate hearings are not really about her and whether she receives “a fair hearing,” for this is not a criminal or a civil trial in which she is bringing charges or seeking redress. They are about the suitability and character of Kavanaugh; the importance of refusing to legitimize or elevate public officials who are credibly accused of sexual harassment or assault and those who turn a blind eye to such accusations; the legitimate processes for confirming Supreme Court nominees; and, in a broader sense, the need to resist the Trumpist assault on liberal democracy. In short, they are about whether we — the women and men who are U.S. citizens — receive the fair hearing that we deserve, and whether we can insist that basic principles of democracy be instated and not violated.

These are the public meanings of these proceedings and the controversy over them.

***

Questions have also been raised about the role of Senator Diane Feinstein in this affair. She claims that she was informed of the allegations months ago, but did not act on them out of respect for the desire of Blasey Ford to remain anonymous. Questions have been raised, cynically by Republicans and sincerely by some feminists, about how and why the allegations were eventually leaked, and whether or not this “outing” of Blasey Ford represented a harm done to her.

It is possible that in a human sense a harm was done to Blasey Ford. She might have preferred to remain anonymous, and would probably be a much happier person right now if she had not come forward which, predictably, led right-wing fanatics to harass and threaten her and make life miserable for her and her family, compounding her original suffering. This is all very sad and very wrong. And of course, Blasey Ford is legally entitled to the protection of the police, and she is also ethically entitled to the admiration and solidarity and support of all who rightly have welcomed her brave public intervention. She should not suffer for having reported a crime.

At the same time, if we are serious about the politics of this, then I think we cannot take seriously the idea that Feinstein was originally motivated by noble sentiments of concern for Blasey Ford, nor can we take seriously the idea that she is responsible for subsequently reneging on these noble sentiments out of some heartless, cynical, and malign partisan political motive.

For if Blasey Ford’s allegations are politically serious — and they are! — and if they are legitimate grounds for halting and perhaps ending the Kavanaugh nomination, then the allegations, once shared with Feinstein, assumed a public importance quite apart from their impact on Christine Blasey Ford, and at that point the American public had a right to know about these allegations and to have them taken seriously as part of the vetting of Kavanaugh. For to confirm Kavanaugh without taking them seriously would be to do grievous harm to the Court and to the legal concerns of all women. To confirm a man who is both a social conservative hostile to women’s rights and someone with a history of sexual harassment and violence would be an outrage and an injustice to all.

The issue here is primarily a public and not a private matter. And all along Blasey Ford’s feelings, while personally and humanly important, have been in a procedural sense secondary to the importance of her allegations. For her allegations are important not only for her (and also for Kavanaugh the individual); we all have a vested interest in these allegations being publicly known and assessed!

And Diane Feinstein had to have known this. If she had any reason to treat Blasey Ford’s allegations as credible, then it is inconceivable that she could possibly have regarded solicitude for Blasey Ford’s feelings to be more important than the public importance of the allegations themselves. As an experienced politician known (and often criticized) for her ability to play political hardball; as a woman whose concern for reproductive freedom and her opposition to sexual harassment surely outweigh her concern for the feelings of any individual woman; and as a Democrat seeking to oppose Trumpism and to be re-elected, she had to know that these allegations must come out.

There are many reasons to dislike Feinstein for being too centrist, or too corporate, or too much of a Washington insider and game-player. There are many reasons to support Kevin de Leon, her progressive Democratic challenger, in November’s general election.

But if she preserved the confidentiality of Blasey Ford’s allegations only eventually to leak them or to allow them to be leaked, is this a reason to condemn her or to applaud her for bringing a genuine public concern to the attention of the public in a way that was sure to have maximum impact?

Yes, Feinstein might have “used” Blasey Ford (who, as a bright, accomplished woman, perhaps even knew from the beginning that this would or at least might happen; it is obvious now that Blasey Ford wants to testify in a way that will not simply share her story but will place maximum pressure on the Republicans, which is a political outcome. She knows that this case is not primarily about her).

Yes, she might have instrumentalized the entire Senate confirmation process, holding off the allegation until late in the process, then dropping it like a bomb, so that it would have maximum effect in obstructing the confirmation and perhaps even the Republican hold on this Court seat.

Yes, this might seem rather “cynical,” especially to those communitarians who are disposed to take “civic virtue” all too seriously.

But it is also perhaps a rather brilliant, and effective, way to play hardball with an administration, and a Republican leadership, that is all too willing to use their power to run roughshod over the norms of constitutional democracy.

***

I share the moral sympathy that has been expressed for Christine Blasey Ford and the moral and political outrage that is rightly directed against Kavanaugh, Trump, and the Senate Republicans for the way that they have handled the current controversy.

At the same time, the controversy is only secondarily about Blasey Ford and the treatment she has been and will be accorded as a witness.

It is primarily about politics. The politics of gender equality, the politics of resistance to Trumpism, and the politics of democracy.

As I’ve indicated, I believe that the Kavanaugh/Blasey Ford situation contains more complexity than much of the broad public discussion seems able to accommodate.

Different dimensions of the “justice” that is “due to Blasey Ford have been conflated by some of her supporters, and understandable concern for the personal experience of Blasey Ford has often supplanted attention to the public-political issues at stake. If the Senate refuses to take her allegations seriously, it is less she who suffers than it is we as American citizens who suffer . (Indeed, sad as it is to say, Blasey Ford will surely suffer more by testifying than she would by simply staying quiet and receding into the background; that she insists on testifying is a sign of her personal courage and her civic virtue.)

Similarly, a wide range of important legal and policy concerns have arguably been reduced by Senator Feinstein, among others, to the strategies and tactics of opposing the Republicans in government and in the upcoming elections (Feinstein also no doubt wants to win re-election).

I tend to overthink things, and so I am discomfited by these simplifications. Indeed, I think that both too much moralism, and too much instrumentalism, endanger the kind of democratic renewal that we need. And that the role of political theory, if it has one, is to think hard about the complexities of politics, and to promote broad public discussion of them.

At the same time, politics is messy and it is harmful and even hurtful, and some kinds of simplifications are important if the harm and the hurt are to be opposed and remedied.

The moralism being expressed by many supporters of Blasey Ford is admirable and necessary to social progress — even as its limits should be recognized, for politics is rarely a simple morality tale, and the distinctions between criminal, civil, and political justice are important.

And the opportunism being deployed by Senator Feinstein and other top Senate Democrats is also admirable and necessary if Trumpism is to be obstructed and the Democrats are to retake control of the government in the next two election cycles — even as its limits should be recognized, because in a broad sense what is really important is not simply the obstruction of Trumpism, but the reinvigoration of the Democratic Party as an agent of real social and economic justice and democratic political renewal.

For now, at this moment, both the moralism and the opportunism have their place.

But as we look to the future, what we need is a politics beyond moralism and opportunism, one that is principled and pragmatic, and that is serious about social justice, real democratic empowerment, and the exercise of political power in dark and uncertain times.

Jeffrey Isaac is James H. Rudy Professor of Political Science at Indiana University, Bloomington.

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