By Sosamma Samuel-Burnett
Founder/President, G.L.O.B.A.L. Justice
After a contentious few weeks in a spectacle of a nomination hearing, Judge Brett Kavanaugh has been confirmed as the newest Justice of the U.S. Supreme Court by a 51-49 vote. The divisive and controversial process has left a wake of concerns. In particular, these hearings demonstrated how politicization and victimization can negatively impact not only the discourse, process, and results in the SCOTUS nomination, but more so the public perception of our political system and of the validity of sexual abuse claims.
Ever since the Republicans blocked the approval of Merrick Garland in his nomination to the U.S. Supreme Court, the Democrats have had a proverbial axe to grind in the context of any other SCOTUS nominations presented by the Republicans. While they were not supportive of Neil Gorsuch as a Trump Administration nominee, Gorsuch was still confirmed to the U.S. Supreme Court. His record and background made it difficult for the Democrats to point to much more than his conservative leanings in the approval process.
Meanwhile the Republicans were pushing to get through another Justice because of the high priority they placed on the U.S. Supreme Court. Indeed many who voted for Donald Trump in the presidential election did so specifically to ensure that more Republican nominees would be placed on the U.S. Supreme Court. They understood that a president can have a great impact on influencing the U.S. Supreme Court which long outlives the president’s term.
When Brett Kavanaugh became the next Trump administration nominee for Justice, the Democrats played defense. They were not going to approve his nomination and would find a way to block it. While many point to the allegations of sexual assault as a major reason for disqualifying Kavanaugh, the Democrats concerns against his nomination began before those allegations. From the moment the hearings began, Kavanaugh became a target for anything that would prevent his approval, including his political perspectives, temperament, and behaviors in his early years.
Both parties have created an over-politicized approach to the SCOTUS nomination process. They both have misapplied the purpose of the U.S. Supreme Court and the purpose of the approval process for the U.S. Supreme Court. The U.S. Supreme Court as the highest court in the land is not meant to be a political body. And with just 9 Justices, it’s not meant to be a legislative or representative body. It is meant to be an interpreter of constitutional issues and final decision maker in legal matters that reach its jurisdiction. That means this body would be best served and would best serve the country when it has the most qualified and experienced legal minds and practitioners that our country can provide, regardless of who nominates them.
The Senate under the U.S. Constitution has the role of providing advice and consent for a SCOTUS nomination — that is not the same as investigation or inquisition. Both parties are supposed to use the nomination process to vet the nominees on the basis of their legal acumen and capacity to provide fair and just decisions based on real cases and real facts in the context of the highest court in the land. Certainly that vetting can take into account character and values, but hypothetical and political questions are generally not appropriate and outside the bounds of the Justices’ role. The purpose of the Senate’s questions and vetting are to ensure the quality of the nominee for approval. As such, the line of questioning from the Democrats in the Kavanaugh hearings and their intent to not support an otherwise highly qualified judicial nominee, is politicized and is not the point of the advice and consent role of the Senate. And, the Republicans efforts to push the nominee’s approval, no matter what may be revealed in the hearings, are also equally politicized. Neither of the parties are doing much service to the nominee, to SCOTUS, or the public by making their political ends more important than the value of the process and the value of the SCOTUS nominee.
Recent events, including the #MeToo movement, have brought to light years of sexual abuse against women in many contexts. However, in many instances, the stories of abuse have been shared in public and sometimes humiliating contexts which not only victimize and re-victimize accusers but also victimize the accused and their families.
In the Kavanaugh case, Christine Blasey Ford came forward to accuse Judge Kavanaugh of sexual assault against her. While that claim is serious and should be taken seriously, the investigation in the context of the hearing did not result in any decisions or conclusions on the facts. Whether Prof. Blasey Ford was telling the truth or not about her accusations against Kavanaugh was not confirmed. But she was nonetheless a victim. She may have previously been a victim of the sexual assault that she claimed, but she is currently a victim of the politicization and polarization in our political system and within the media.
While many viewed Prof. Blasey Ford as credible and her claims legitimate, the fact that her claims were made only in the “11th hour” of the hearings, makes her victimization highly politicized. The credibility of her claims became second to the publicity of her victimization in the political context. If the Democrats or Republicans were truly concerned about Prof. Blasey Ford as a potential victim of sexual assault, the investigative process could have been conducted without the public spectacle, with more protections for her, and without Judge Kavanaugh having to defend himself publicly via the media. Thus, the credibility of either person, and the veracity of the claims or defenses, gave way to political perspective. It wasn’t facts, but politics, that shaped the hearing, and shaped the public perceptions on whether Judge Kavanaugh was guilty or innocent and whether he should become the next U.S. Supreme Court Justice.
Sadly, Prof. Blasey Ford is not the only victim. Judge Kavanaugh is a victim in another way — as a target within the media and within the political process. More so, his wife and children have become victims of the attacks waged against their husband/father. Some may think that if he was a perpetrator of sexual assault, then he “deserves” this result. But that is contrary to our political processes, our legal system, and our public conscience.
If Judge Kavanaugh is guilty or innocent of the sexual offenses claimed against him, that should have been a legal matter determined based on the facts that could be proven or concluded, not based on any one making a claim against him in a public hearing. Neither the hearing nor the FBI investigation was a formal legal proceeding. They are part of a legislative process that is far more connected to legislative decisions and public opinion. In a court of law, it is the facts and the applicable law that guide the decisions. In the court of public opinion, there are a host of factors that determine who is right and who is wrong, or more precisely who we believe to be right or wrong. Whether most believe Judge Kavanaugh or Prof. Blasey Ford is largely determined by political perspective rather than facts. And that is a form of public victimization that raises many concerns.
The politicization and victimization that characterize Judge Kavanaugh’s nomination, hearing, and investigation also have some related implications:
Sexual assault is rampant and reprehensible in all contexts.
Our country has been waking up to the reality that sexual assault is far more pervasive than we may realize. The #MeToo movement may have punctuated this understanding, but our country has been learning this reality for many years and on many levels. In any context, sexual assault is reprehensible, and usually also criminal.
But sexual assault is part of a broader culture that promotes sexualization, exploitation, and violence, especially against women. The reality is that many parts of society encourage such behavior through other excesses.
Most high schools and colleges promote drinking, drugs. and/or sexualization through the campus student culture. I saw that first hand in every campus I ever attended or visited. And I, like many women, have experienced the results. I can point to many men and women whose behaviors and decisions in their college years would not be acceptable in professional or mature contexts. While not all high school and college bad behaviors rise to the level of sexual assault, sexual abuse is more likely in such contexts.
Judge Kavanaugh was certainly part of a high school and college culture of excessive drinking and over sexualization, whether or not he engaged in sexual assault. And, that is sadly and likely the case of many other professionals in our country.
Sexual assault is not always the same as rape.
While sexual assault is a rampant and reprehensible problem, labeling every sexual assault as rape is problematic. Like all other crimes, there are degrees and distinctions. Someone who causes physical harm short of murder may be charged for that assault, but can’t be charged for murder. Similarly, someone who sexually assaults but does not rape, may not be charged with rape. While we may have a desire to consider all sexual offenses on the same scale, the degree and type of sexual violence matters in legal proceedings and also in society. Prof. Blasey Ford and others allegations of sexual assault against Kavanaugh, does not automatically make him a rapist. While those allegations are serious, if they are criminal, they should go through a criminal process to determine whether he would be charged with rape. Labeling him a rapist in advance of any legal determination is neither accurate nor helpful to either the accused or the victim.
Innocent until proven guilty is an important standard.
While it is tempting to believe every accuser, whether in a court of law or court of public opinion, it is important to allow the accused to be considered innocent until proven guilty. Prof. Blasey Ford can legitimately present her claims and request an investigation, but we should not automatically assume that Judge Kavanaugh is guilty just because of her claims. Nor can we assume that Prof. Blasey Ford has no personal, professional, or political motivations for her claims. Even though this nomination hearing is in a political context rather than a legal proceeding, assuming innocence until proven guilty is still a fundamental principle of our system and an important concept of justice.
Innocent until proven guilty is certainly a fundamental in a court of law. But it should be a standard that the court of public opinion embraces as well. Anyone who makes a serious claim, should be taken seriously. But that same claimant has a serious responsibility to prove the claim. Certainly we must protect victims and accusers primarily, but no matter the context nor the claim, not protecting the accused is damaging to our society as well. Not every woman or man may be telling the truth. We have seen countless examples of both men and women who did not tell the truth in various claims and with bad results in our legal and political history.
The ultimate reason for this principle of innocence until proven guilty is that it prevents tyranny. That tyranny may be at the hands of leaders or at the hands of people. Some might not like that idea of innocent until proven guilty when we are dealing with sexual assault claims. But they also would not want to live in a society where any claim waged against us automatically brands us, rightly or wrongly. That is a society that our nation not only fled but has fought to not to become ourselves.
Responsibility, accountability, and redemption are important considerations.
I know of no perfect person. And I can think of many instances in my life or in the life of others when mistakes were made, especially earlier in life. People are probably more likely to make mistakes in their teen and college years than in their more mature years. It is the lack of maturity itself that is often the root cause for the mistakes of our youth. That immaturity results in poor decisions and bad behaviors. Perhaps they weren’t all criminal mistakes, or sexual offenses, but they still carry with them responsibility and accountability. Most every adult has to reckon and account for those poor decisions and behaviors from the past at some point in their present or future. When mistakes involve sexual offenses or other crimes, responsibility and accountability heightens, no matter how many years have passed. And the more severe the offense, the more likely the offense will carry forward to the present for review and judgment in those later years.
But that accounting and responsibility also has some limits. We can grow beyond those earlier years, mature, move ahead, and do so having learned lessons from our mistakes. We can redeem ourselves…and redemption matters. If a person has redeemed themselves of their past behaviors, we have to value and respect that redemption. To what degree that redemption counts against the offense is in part based on the severity of the offense, regardless of how many years have passed. But duration of redemption matters in gauging the degree of redemption itself. If someone made a mistake at a certain part of their life and then reconciles and moves past that to live a better life that matters to some extent. That does not discount immoral or criminal acts, but it does provide a broader context for understanding the direction of the person.
With regard to the Kavanaugh case, it is not clear whether Judge Kavanaugh actually committed sexual assault, but it is clear that there was a possibility. If he did, then he had to reckon with that in the most public way and in the face of his family. If he didn’t, he still had to reckon with his drinking and excess which tainted perceptions of him from his early life. In either case, there is a question of redemption in Judge Kavanaugh’s personal and professional life in the 40+ years since his high school and college years. In his youth, he was characterized as drunken and belligerent, but in his mature years, he established himself as a dedicated husband, father, and respected judge.
The degree to which our country will accept Brett Kavanaugh as Justice of the U.S. Supreme Court will be the degree to which we accept his redemption against the possibility of his guilt, and across the chasm of the political divide.
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.