The Devil’s Triangle: In the Kavanaugh hearing, American partisanship reached a point of no return | The Monthly

In the Kavanaugh hearing, American partisanship reached a point of no return

TIRED of WINNING

American Dispatches by Richard Cooke


American politics and society has rarely, if ever, been as tumultuous as it is today.


September 28, 2018

The Devil’s Triangle

By Richard Cooke
In the Kavanaugh hearing, American partisanship reached a point of no return

Brett Kavanaugh appears before the United States Senate Judiciary Committee. Source

Plane passengers watched their headrest TVs and cried. The phones on Wall Street went unanswered for a time. In coffee shops and bars and in their homes, Americans united to watch what they knew would be a piece of history, live and televised. The United States Senate Committee on the Judiciary hearing heard testimony from two people: Brett Kavanaugh, a federal judge nominated to the Supreme Court, and Dr Christine Blasey Ford, a psychology professor who said that Kavanaugh had sexually assaulted her 36 years ago, when they were both in high school. The testimony lasted all day, and by the end of the hearing, it was ominously clear that the outcome, whatever it would be, would be unacceptable to half the country.

Very few social movements have created such rapid cultural change as the #MeToo campaign to call out sexual assault. A CNN headline claimed that “Christine Blasey Ford finds herself at the center of America’s #MeToo reckoning”, and while the movement might have spurred on the allegations themselves, the investigative mechanisms to hear them have not caught up. There might be no good judicial or executive body yet in existence to sensitively determine the truth of a historical sexual assault, but it’s hard to think of one less well suited than the committee, which, despite its name, is a near-guaranteed venue for travesties of justice.

The 11 Republicans on it are exclusively white men (in fact, a female Republican has never served on it), and the only minority represented was Mormons. The unsatisfactory procedural compromise Republicans reached with their 10 Democratic colleagues created a Frankenstein: the prosecutor from court proceedings – but applied solely to the plaintiff – sewn to grandstand interruptions, and ghoulish efforts at both admonishment and commiseration, all sectioned into five-minute blocks. The chairman, Senator Chuck Grassley, assiduously watched the clock. He tried to project concern for Ford, but what seeped through was his concern for the confirmation vote on Friday.

Grassley’s demeanour was part of a wider effort at Republican restraint and window-dressing, a kernel of self-awareness that 11 sour-faced old men interrogating a crying accuser might look sexist (this attempt at best behaviour still cracked – Senator Orrin Hatch told reporters that Ford was an “attractive witness”, and when asked to elaborate, said “she’s pleasing”.) The avuncular effort was almost worse than outright chauvinism, a festival of concern-trolling conducted through an appointed female proxy, an Arizona prosecutor called Rachel Mitchell. Mitchell explored the uncomfortable tactic of trying to console and discredit Ford at the same time.

Ford was so forthright and credible that no one dared question that she had been assaulted. Instead, the questioning was caltropped with a pernicious idea: it was a case of mistaken identity. This balloon had been floated already, and had not gone well on its maiden voyage. Ed Whelan, a former deputy assistant attorney general during the George W. Bush years, had claimed on Twitter that another man was responsible, proffered floor plans as evidence, implicated someone innocent, and then apologised and prepared himself for a lawsuit. But now the Mystery Man theory was back, and on social media conservative commentators suddenly embraced a century’s worth of defence lawyer ambit claims. Eyewitnesses make mistakes. The human memory is fallible. Perhaps that’s why we never learn anything.

Ford’s expertise meant that she was able to speak to the brain chemistry on memory herself, and the sole eyewitness, a former frat-boy called Mark Judge, was holed up in hiding in a beach house in Delaware. Why he was not compelled to give testimony was never satisfactorily explained. Instead, Mitchell cycled through gentle insinuative queries, which never quite became lines of questioning. Who had paid for the polygraph? Was it true she was afraid of flying? The White House was said to be displeased with these ambits, but the fix was already in. President Trump began calling senators mid-testimony, firming up their votes, growing impatient with the show trial’s lack of finale. Scrutiny was applied to Republican moderates, especially Susan Collins, Jeff Flake, Lisa Murkowski and Ben Sasse, who could each end the nomination with a vote, but had not stopped anything significant so far.

There was a lot of talk about the burden of proof. Should it be beyond reasonable doubt? A preponderance of evidence? Clear and convincing evidence? The trouble with a pseudo-court is that no one knows the process. But everyone knew the Rule: the man usually wins, especially if they’re a man like Brett Kavanaugh. The Clarence Thomas hearing in 1991 had already put a credibly accused sexual harasser on the court (two of the members of the current committee – Grassley and Hatch – had themselves voted for Thomas). Kavanaugh himself had assisted in the cross-examination of Bill Clinton, and was especially keen that counsel ask the president if he had ejaculated in Monica Lewinsky’s mouth. But the true low watermark was set, as always, by Donald Trump.

Was the committee considering accusations of 20 sexual assaults? Had the accused confessed to them on tape? Whatever came out, GOP base voters had already decided it could be lived with, or even embraced. An NPR/PBS NewsHour/Marist poll found that 54% of Republicans believed Kavanaugh should be confirmed to the Supreme Court even if Ford’s allegation of sexual assault was found to be true. When Kavanaugh began his statement, sometimes crying, sometimes yelling, so angry the pre-prepared pages snapped when he turned them, he was defending not just himself, but a whole system of entitlement and immunity that had already been found culpable – and survived. “Judge Kavanaugh showed America exactly why I nominated him,” Trump tweeted afterwards. Too right.

Every Republican senator began their remarks by apologising to Kavanaugh, a perverse display of what the Australian philosopher Kate Manne calls “himpathy”. Of course Republican senators acted in bad faith and grandstanded – that’s the job – but the wider trends in the conservative movement were less expected. There had been centre-right ambivalence about Kavanaugh – the Republican Senate Majority Leader Mitch McConnell had warned Trump against his nomination – but, counter-intuitively, that vacillation disappeared in the face of the accusations. It was the moment many “Never Trump” conservatives came home. The former RedState writer Erick Erickson, driven into the wilderness after a crisis of faith about Trump’s character, tweeted in Kavanaugh’s favour more than 250 times in a 24-hour period.

They appealed to psychology, graphology and sometimes theology to persuade themselves, but all the evidence they really needed was an “honourable” career-conservative legal eagle under attack. This was too far. Senator Lindsey Graham suggested that in the future Republicans might be forced to make false allegations against Democratic nominees to even the score. It was described as the end of the line for illusions of media bias, of respect for the rule of law, of the last pretence of unbiased judicial nominations and nominees. If Kavanaugh is confirmed, it could also be the end of abortion in America, and given his track record, the conclusion of any effort to peacefully reconcile these disunited states.

Richard Cooke

Richard Cooke is The Monthlys US correspondent and contributing editor. 

@rgcooke

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