Editor’s note: Lesley Wexler is a University of Illinois law professor who studies anti-discrimination and humanitarian norms through domestic and international law, social movements and corporations. Wexler spoke with News Bureau business and law editor Phil Ciciora about the initial sexual assault allegation against Supreme Court nominee Brett Kavanaugh.
How does what’s happening between Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, a college professor from California, compare to what Anita Hill faced during Clarence Thomas’ confirmation hearing in 1991?
There are some similarities, one of which is it’s a bit of a political Rorschach test. People’s political affiliations seem to strongly influence which side one views as more credible.
This time, however, the alleged victim is getting much more support from Democratic senators in terms of trying to influence the process. There’s been more pushback for the process to be more victim-centered, to wait for an investigation and to call on other witnesses. Many people don’t know this, but others who could have bolstered Anita Hill’s testimony were never called upon to do so.
Of course, the big difference is the widespread knowledge of and attention to just how pervasive sexual assault and sexual harassment are. Combined with allegations of President Trump’s own grievous misdoings and the #MeToo movement, the issue has much more currency in 2018 than it did in 1991. Back then, most people probably didn’t know that sexual harassment was a Title VII violation, or even what that entailed.
In the backlash or smear campaign against the victim, it’s been a slightly different playbook than what happened to Hill, but the overall circuslike atmosphere is largely similar. Instead of painting Ford as “a little bit nutty and a little bit slutty” as they did with Hill, so-called ethicists are jumping down internet rabbit holes and pulling out high school yearbooks to “prove” mistaken-identity theories.
Without the #MeToo movement, do the allegations leveled against Kavanaugh even come to light?
No. In order for credible allegations to be assessed, you need an alleged victim who is willing to suffer intense public scrutiny and the strain of Senate questioning. Remember, Ford herself didn’t come forward when Judge Kavanaugh was nominated and went through a public confirmation process for his position on the D.C. circuit.
What’s the difference between then and now? It could be that she finds something more insulting about Kavanaugh being on the Supreme Court or that she believes the character bar for Supreme Court justices should be higher. But I strongly suspect her willingness to come forward is at least partially motivated by all these other women who have spent the last year telling their stories. Ford should know she will at least have a significant level of vocal popular support that would likely have been much smaller before the #MeToo movement. Of course, even Hill had some support. I still remember the “I believe Anita Hill” pins that people wore, but social media facilitated a groundswell of support that simply didn’t exist before.
Are Ford’s allegations enough to derail Kavanaugh’s nomination?
If Ford doesn’t testify, then the answer is no. An allegation without testimony wouldn’t be seen as credible to much of the American public, and I think the Senate would move forward quickly. But if she testifies and comes across as not just credible, but far more believable than Kavanaugh, then all bets are off. Call me naive, but I’d like to think that there are Republican senators who would not confirm if they believed Ford’s allegations. Or call me cynical, because some Republican senators might be indifferent to the truth but concerned with the price they might pay with angry mid-term voters.
If, on the other hand, she testifies and Kavanaugh testifies and both are seen as credible but mutually inconsistent accounts, I suspect Kavanaugh will still get the nod.
You and your co-authors have written about issues of restorative and transitional justice in the context of the #MeToo movement – in other words, what counts as having made things right. What, if anything, can Kavanaugh do to make things right with Ford?
Assuming that Kavanaugh did in fact assault Ford, he owes her an apology for the event itself, the failure to make amends to her between then and now, and for lying about it to the American public. Seventeen-year-olds do horrible things. Some reoffend, some do not. But simply not assaulting others does not repair the wrong a perpetrator did to his victim. The moral debt an attempted rapist owes to his victim does not degrade over time. The attempted rape may be long in the past for a now grown-up perpetrator, but it has been part of the victim’s present for every day since the crime.
Restorative justice also suggests that perpetrators should also ask victims directly what they want to make things right. Some victims want a private apology, some want face-to-face meetings in which the victims narrate the events and how the events affected them and then an explicit acknowledgement by the perpetrator that the account of the event is true. Others want a public apology and a public acknowledgement of wrongdoing. Some want compensation for their emotional harms, such as the cost of psychiatric care. Others want financial resources to be donated for prevention and efforts to help other victims.
Supreme Court nominations are a distinctive event in American political life. Supreme Court justices are subject to intense scrutiny because they are called upon, at the highest level, to review and to determine the meaning and application of law in situations where it’s profoundly important that you’re a fair and unbiased decision maker who has deep respect for the law – and also perceived as such by the public.
If Ford is widely believed to be credible and if Kavanaugh doesn’t apologize and withdraw, for many there will be an indelible stain on his professional character. He will be seen as illegitimate by the public and by those being governed by him, and his appointment will degrade the legitimacy of the Supreme Court itself.