Can Christine Blasey Ford Get a Fair Hearing?

Law professor Naomi Cahn explores what would constitute a fair hearing before the Senate Judiciary Committee.

Supreme Court nominee Brett Kavanaugh and Vice President Mike Pence. (Office of the Vice President)
Supreme Court nominee Brett Kavanaugh and Vice President Mike Pence. (Office of the Vice President)
September 26, 2018

By Ruth Steinhardt

Multiple accusations of sexual assault have roiled the Supreme Court nomination of Brett Kavanaugh, who has categorically denied the allegations.

In response, the Senate Judiciary Committee has scheduled a hearing Thursday at which Christine Blasey Ford will testify. We spoke to Naomi Cahn, Harold H. Greene Professor of Law and associate dean for research and faculty development at the George Washington University and an expert in workplace gender equity, about the implications.

Q: What would constitute a fair hearing for Dr. Ford?

A: The situation is changing constantly, but a fair hearing would be one in which her conditions for testifying are satisfied and at which other witnesses are heard. So a fair hearing would include experts on sexual assault who could explain the impact of the trauma on her, why it is so hard for survivors to come forward, and why she might not remember all the details. The questioning would not focus on her character but on what actually happened.

Additional witnesses should be called who weren’t necessarily present at the time of the incident but who could testify about Mr. Kavanaugh’s high school and college behavior. There is a lot of evidence, including things he’s said himself, about that. I was just reading a speech he gave to the Federalist Society a few years ago in which he talked about drinking at Yale Law School, for instance.

Q: How does this differ from a criminal hearing?

A: At a criminal trial we would want to know, beyond a reasonable doubt, whether he committed this specific act. But this isn’t a criminal trial. It’s more like a very prestigious job interview. It’s a question of his fitness to serve a lifetime appointment as a Supreme Court justice. It’s not a court of law, so there are no established burdens of who has to prove what. The question is whether these accusations are credible and whether they reflect on his ability to serve, his judicial temperament and intellect. Choosing a prosecutor—who is a woman—to ask questions at the hearing seems to suggest this is a criminal trial, when in fact it’s not a trial at all, and the committee itself routinely has questioned witnesses who appear in confirmation hearings.

Q: Anita Hill, who faced a similar situation with Justice Clarence Thomas in 1991, has said that the hearing as it stands “cannot be fair and thorough.” What are the challenges to that fairness?

A: Part of the challenge is that there isn’t enough time and there aren’t enough witnesses. Dr. Blasey Ford has requested an FBI investigation, as has Deborah Ramirez. The Senate seems to want to move rather quickly, and multiple FBI investigations would certainly delay the process. If the Senate Judiciary Committee is really planning to hold its vote on Friday morning, less than 24 hours after Dr. Blasey Ford testifies, that’s certainly not a lot of time for additional evidence-gathering, deliberation and reflection.

Q: Do you think we’re in a different climate around issues of sexual assault than we were at the time of Justice Thomas’s confirmation?

A: I feel like we’re in the same climate, unfortunately. Yes, it was an all-male committee that Anita Hill faced, and today that committee has four Democratic women. But I worry that not enough has changed. With the #MeToo movement there’s certainly a lot more discussion of these issues, but discussion doesn’t always mean progress. Consider the President’s response to the credibility of the claims against Kavanaugh. We’ll see if the hearings and the vote wind up surprising all of us. If her claims are taken seriously, and if there is further investigation, then that might be a sign we have moved forward.

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