The controversial and bitterly fought confirmation of Judge Brett Kavanaugh’s nomination to the Supreme Court has solidified a 5-4 conservative split on the highest court in the United States that is likely to persist for decades. More important, however, is how the confirmation process revealed — and exacerbated — the polarization of the current U.S. political landscape. During the hearings, Republicans and Democrats alike used the law as both a cover for and tool of party politics. That the law is political should neither surprise nor disturb us. What we should be concerned about is the failure of the left to mobilize itself around a law-as-politics strategy that can actually succeed. The Kavanaugh confirmation hearings will be remembered mostly for the testimony of Dr. Christine Blasey Ford, who alleged that Kavanaugh sexually assaulted her during the summer of 1982 when he was 17 years old and she 15. For their part, Republicans accused Democrats of holding onto “secret” evidence only to spring it on Kavanaugh at the last minute in order to obstruct the nomination — all in the hope that the Democrats might take the Senate in the November midterm elections. Kavanaugh himself referred to the whole episode as a “calculated and orchestrated political hit.” Democrats, on the other hand, attempted to combine the momentum of the #MeToo movement with distrust by progressives of Kavanaugh’s position on reproductive rights to generate enough rage to convince moderate Republican senators like Susan Collins and Lisa Murkowski to vote against their party. (In the end, neither did and Kavanaugh was confirmed by a 50-48 vote in the Senate.) Fred Schilling, Collection of the Supreme Court of the United States Lost in the emotional debate was a needed focus on Kavanaugh’s damning record on consumer and labour rights, environmental protection, health care, Indigenous rights and possible involvement in the commission of international crimes — including torture — during his time in the George W. Bush administration. Kavanaugh on ‘trial’ The Democrats’ strategy was to effectively put Kavanaugh on trial for the issue most likely to appeal to senators on a bipartisan basis: sexual assault. Both sides of the aisle invoked legal ideals of fair process, impartial investigation and independent decision making. Although Republicans and Democrats held very different notions of what these ideals would mean, concretely, in the context of Ford’s allegations, both parties remained committed in the abstract to “finding the truth.” Confirmation hearings, however, are emphatically not legal proceedings. Unlike judges and juries, the senators are not fact finders. Perhaps counter-intuitively, whether Ford’s allegations are true was immaterial to the senators’ task, which was to provide “advice and consent” to President Donald Trump on Kavanaugh’s appointment. The U.S. Constitution does not provide guidance on how the Senate committee should carry out its work, including which information it should seek and how it should consider this information. No substantive qualifications are provided for: technically, the Senate could confirm a justice who doesn’t even have a law degree. Turning the hearings into a trial-like event, however, allowed the Democrats to wield the supposed neutrality of the law against Kavanaugh’s obvious partisanship. All the talk, on both sides of the aisle, about the rule of law, fair process, impartial investigation, corroboration and credibility — ideals that are supposed to ground the “rule of law” — was calculated to create the impression that the Senators were bound, in fact, to apply some standard of proof in assessing Ford’s allegations. Ford hearing as show trial When Kavanaugh claimed the hearings were a sham, he was not wrong. Democrats and small-l liberals argued the hearings were essentially a job interview and that Ford’s allegations were sufficiently credible to conclude, most strongly, that Kavanaugh assaulted her or, most weakly, to raise serious doubt about his suitability for a position on the Supreme Court. However, job interviews, even for the most important positions of public service, do not typically provide highly legalized settings in which to publicly litigate the political future of a country. But let us be clear that the pageantry of the “rule of law” — emphasized so strongly by Democratic Sen. Richard Blumenthal during the confirmation hearings — works to obscure the way in which this nomination process actually set the stage for further entrenchment of the partisan divide that liberals bemoan. As uncomfortable as it might be for Democrats to admit, the Ford testimony was a show trial — and a poorly handled one at that. In the words of theorist Judith Shklar, show trials are designed to eliminate political enemies. They pursue “the destruction, or at least the disgrace and disrepute, of a political opponent.” We tend to talk about show trials as though they are necessarily a bad thing. For Shklar, domestic political trials could be useful; what mattered was the specific sort of politics they advanced and that the whole process could be subsumed within the rhetorical limits of liberal legalism. In other words, the show trial should reaffirm the status quo of the existing constitutional structure, rather than challenge it. Of course, these sorts of show trials only work when they are run by the party in power against perceived internal threats to the domestic political order. Democrats’ strategic error The attempt to prevent Kavanaugh’s nomination failed because Democrats bet on the energy of #MeToo to supplement the power they actually held in the hope that they could destabilize the Republican Senate majority. This was a foolish wager. The #MeToo movement is not a political movement. As a slogan and rallying cry it has galvanized an incredible amount of energy, affect — and profit — around enumerable policy projects, many of which are internally inconsistent. Furthermore, it is not clear that many of these policies are progressive or liberal in any discernible sense. Let me be clear: I think Ford’s testimony was credible and needed to be heard. But Democrats made a strategic error in relying on it to disqualify a nominee who was already eminently objectionable to progressives on a host of other substantive and procedural issues.<doc-sep>“I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding his hips into me . . . Brett groped me and tried to take off my clothes. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life,” her statement reads.<doc-sep>President Donald Trump claimed Justice Brett Kavanaugh was "proven innocent" of the numerous sexual misconduct allegations that nearly upended his confirmation to the Supreme Court. "A man or woman, must always be presumed innocent unless, and until proven guilty," Trump said at Kavanaugh's swearing-in ceremony on Monday night. "And with that, I must state that you, sir, under historic scrutiny, were proven innocent." The FBI investigated a claim made by Christine Blasey Ford, a California university professor who said Kavanaugh sexually assaulted her when they were both in high school. The results of that investigation, delivered in a report to the White House and Senate lawmakers last week, led the White House and Republicans on the Judiciary Committee to say there was no evidence to corroborate Ford's claims. While both Ford and Kavanaugh testified about the allegations in front of the Senate Judiciary Committee on September 27, the proceeding was not a trial and no verdicts were rendered. President Donald Trump raised eyebrows during Justice Brett Kavanaugh's swearing-in ceremony when he suggested Kavanaugh was "proven innocent" of the numerous sexual misconduct allegations that nearly upended his confirmation to the Supreme Court. "Those who step forward to serve our country deserve a fair and dignified evaluation," Trump said, referring to Kavanaugh's vetting process. "Not a campaign of political and personal destruction based on lies and deception. What happened to the Kavanaugh family violates every notion of fairness, decency, and due process." Trump said "a man or woman, must always be presumed innocent unless, and until proven guilty." "And with that, I must state that you, sir, under historic scrutiny, were proven innocent." The FBI investigated a claim made by Christine Blasey Ford, a California university professor who said Kavanaugh sexually assaulted her when they were both in high school. The agency took about a week to interview 10 out of the 11 people who agreed to talk. The results of that investigation, delivered in a report to the White House and Senate lawmakers last week, led the White House and Republicans on the Judiciary Committee to say there was no evidence to corroborate Ford's claims. While both Ford and Kavanaugh testified about the allegations in front of the committee on September 27, the proceeding was not a trial, and no verdicts were rendered. But critics, including Democratic lawmakers and Ford's attorneys, claimed that the FBI never followed up with potential interviewees and also alleged that the investigation was too narrow in time and scope. Despite the concerns, the Senate Judiciary Committee concluded that "there is no corroboration of the allegations" after receiving the FBI's supplemental report. "There's nothing in it that we didn't already know," Republican Sen. Chuck Grassley of Iowa, chairman of the Judiciary Committee, said in a statement after receiving the FBI report. "These uncorroborated accusations have been unequivocally and repeatedly rejected by Judge Kavanaugh, and neither the Judiciary Committee nor the FBI could locate any third parties who can attest to any of the allegations." The Senate confirmed Kavanaugh in a 50-48 vote on Saturday.<doc-sep>Kavanaugh (right) and his accuser, 51-year-old psychology professor Christine Blasey Ford (left). Win McNamee/Getty Images; Zach Gibson/Getty Images; Samantha Lee/Business Insider Last week's Senate judiciary hearing of sexual assault allegations against Supreme Court nominee Brett Kavanaugh was, at times, reminiscent of early Soviet mock trials. Public mock trials performed in factories and workers' clubs were something of a craze in the decade after the 1917 Russian Revolution. These fictional judicial proceedings were an entertaining way to educate Soviet citizens about their country's new laws and Communist values. One fictional trial from 1925 reveals that there's nothing new about the "he said, she said" aspect of judging sexual assault allegations. Before last week's Senate judiciary hearing into sexual assault allegations against Supreme Court nominee Brett Kavanaugh was scheduled, Republican Senator John Cornyn complained that the proceedings would amount to a "show trial" — a public spectacle with a predetermined outcome rather than a serious inquiry into the truth. Last week's riveting testimonies by Kavanaugh and his accuser, 51-year-old psychology professor Christine Blasey Ford, did at times remind me of the early Soviet mock trials that are the focus of my dissertation research as a scholar of Russian literature and culture. Soviet values Public mock trials — not to be confused with the rigged show trials that would later occur under Stalin's regime — were something of a craze in the decade after the 1917 Russian Revolution. Performed in factories and workers' clubs, these fictional judicial proceedings were an entertaining way to educate Soviet citizens about their country's new laws and Communist values. A 1920 mock trial of the Communist Party leader Vladimir Lenin, for example, aired criticisms against Lenin in order to refute them. Staged trials of drunkards taught the audience moral lessons about the evils of alcohol. And a 1924 mock trial of the Bible highlighted inconsistencies in this religious text in order to undermine the authority of Christianity. The fictional trial scripts were published by state-run presses as short pamphlets, with up to 100,000 copies of each circulated. I have reviewed dozens of the copies housed in Moscow's Lenin Library and the Russian State Archive of Literature and Arts. Though the trials were scripted, actors were encouraged to improvise their lines, and the audience could often participate in the show as jurors. The verdict, however, was almost always predetermined to reflect the Soviet government's idealized vision of this new Communist society. Trying acquaintance rape One 1925 fictional trial, The Trial of Citizen Fedor Sharov Accused of Spreading Gonorrhea, reveals that there's nothing new about the "he said, she said" aspect present in judging sexual assault allegations — including those lodged against Kavanaugh. Sharov is a fictional 21-year-old factory worker accused of bringing his fellow worker, 19-year-old Anna Nikolaeva, to a private room in a bar, where he gets her drunk and rapes her. The mock trial focuses on whether Sharov gave Nikolaeva gonorrhea, with the aim of teaching the Soviet public about the spread and treatment of sexually transmitted diseases. But in the script, the prosecutor also seeks a charge of rape against Sharov, arguing that his sexual assault is also a crime. Like the accusations against Kavanaugh, which allege that he physically assaulted Ford at a party in high school, this mock trial tackles not stranger rape but sexual violence committed by an acquaintance. Nikolaeva explains that before the rape Sharov had pursued her aggressively. When she rebuffed him, he insisted, saying he wanted "to be more than your comrade" — a statement that demonstrates Sharov's retrograde attitudes about gender. In Soviet Russia, women were supposed to be equal to men. Other characters in the mock trial condemn Sharov for harboring "old ideas and views about women," with one witness even saying the rape allegations don't surprise him. Ultimately, the prosecutor uses Sharov's misogyny to argue for a guilty verdict, declaring that the defendant sees his female co-workers and fellow students not as comrades, but as people "to seduce and ruin." Women's dubious credibility Even in allegedly gender-equal Soviet Russia, Nikolaeva struggles to convince the men in power that she was raped. The judge begins the proceedings by asking whether she told anyone about the assault. Like many sexual assault survivors, Nikolaeva says she did not. "Who was there to tell?" she asks. "I was ashamed." The defense attorney proposes that perhaps Sharov raped Nikolaeva because "he really liked" her, equating sexual violence with affection. Even the prosecutor offends his star witness by asking if she has sexual partners "other than Sharov." The trial concludes with a mixed verdict: Sharov is convicted of infecting Nikolaeva with gonorrhea but acquitted for her rape because Nikolaeva willingly accompanied him into the bar. He said, she said Other Soviet mock trials on sexual health demonstrate similar disregard for women's experiences. In the 1925 Trial of a Prostitute and a Procuress, Stepan Klimov accuses the sex worker he visited, Zinaida Evdokimova, of knowingly infecting him with syphilis, which she vigorously denies. Klimov claims he did not sleep with anyone other than Evdokimova. And as a prostitute she must have known she had syphilis, the prosecution insists. Evdokimova tearfully explains that she could not have intentionally infected Klimov because she would have sought treatment had she known she was ill. "No one wants to rot alive," she says. As her defense attorney points out, the government's case is based entirely on assumptions and the victim's testimony. Nevertheless, Evdokimova is convicted. A referendum on abortion The issues debated in the 1923 Trial of the Midwife Lopukhina Who Performed an Abortion Operation that Resulted in the Death of a Woman also feel modern. Its purpose was to teach the Soviet public about abortion, which had just been legalized in 1920. Russia was the first European country to allow the procedure, but only when performed by a doctor, at his discretion, in a clinical setting. As each side debates the merits of the midwife's actions, the trial effectively becomes a referendum on this new woman's right. Numerous characters, including the doctor and expert witness, imply that women who have abortions should be ashamed.<doc-sep>
I’ve never thought the big Ford–Kavanaugh hearing scheduled for Thursday would actually happen. Maybe I’ll be proved wrong, but I’ve never believed Christine Blasey Ford wants to testify. This hearing is not going to settle the issue of what, if anything, happened 36 years ago — which, as I’ve noted, is why there is no point in having the hearing. Senator Chuck Grassley, the Judiciary Committee chairman, should just invite affidavits from the witnesses and call it a day. Democrats, in any event, would rather have the specter of Ford’s testimony than the real thing, given that the latter will highlight: (a) her inability to recall and relate rudimentary details, (b) the fact that she did not utter a word about the alleged sexual assault for 30 years, (c) the discrepancies between her current version of events and the notes of what she told her therapist, and (d) the fact that the other witnesses she has identified do not corroborate her story. Moreover, now that Republicans have reportedly retained an experienced female litigator to conduct the questioning, there is no longer the prospect of video clips featuring Ford being grilled by old white guys — grist for what Democrats hoped would be their “War on Women 2.0” campaign ads. Ford’s legal team continues to add new demands. The latest is a push to have two “trauma experts” and Ford’s polygrapher testify. The purpose of these outlandish proposals is likely to prompt denials that would allow Ford to bow out of the hearing, blaming purported GOP intransigence and insensitivity. This underscores that the point of the hearing is being lost. A few days ago, when Democrats were demanding that the FBI be dispatched to investigate Ford’s nearly four-decade-old allegation, I pointed out: Even though the FBI had jurisdiction to conduct a background investigation of Kavanaugh, such investigations are not occasions to trigger full-blown criminal investigations of [alleged state] crimes the Justice Department has no jurisdiction to prosecute, but rather result in a flagging of allegations for the Senate’s consideration (which has been done here). The FBI inquiry into Judge Kavanaugh’s background is not a criminal investigation. The hearings attendant to the nomination are not intended to be a trial. Thursday’s hearing, supplementing the 31 hours of testimony Judge Kavanaugh has already provided, is not even, as he suggests, a forum for “clearing my name” — though he may understandably hope for that, just as one supposes that Ford hopes for some measure of vindication. That is simply not the point. The proceedings are about Kavanaugh’s suitability to sit as an associate justice of the Supreme Court. Period. The objective is to give the Senate — first the Judiciary Committee and then the full chamber — enough information to make a discriminating appraisal of Kavanaugh’s legal erudition and character. On that score, the Senate has more information about this nominee — including, most significantly, the 300 appellate opinions he has authored on the eminent D.C. Circuit Court of Appeals — than any nominee in the history of the United States. The Senate is not being asked to solve alleged crimes. Its job is not to psychoanalyze witnesses. Lawmakers, instead, are exercising their constitutional duty to provide advice to the president on a nomination and, if appropriate, to consent to a nominee’s accession to office. That’s it. Since Democrats are hell-bent on turning the ongoing Kangaroo Court into a pseudo-trial, it is worth noting how ridiculous that notion is. To begin with, a trial requires jurors who have been vetted for their objectivity. What we have here, instead, is a political theater in which every Democrat is immovably predisposed to vote against the nominee — regardless of whether it is Kavanaugh or anyone else President Trump appoints to fill any Supreme Court vacancy. All the banter about “presumption of innocence” is silly. The proceeding is not about guilt or innocence; it is about qualification, and Democrats are presuming Kavanaugh’s lack of qualification, no matter how overwhelming his résumé and how manifest his command of American jurisprudence. But let’s pretend we were in a trial setting. If that were so, the case would be thrown out of court. First, Thursday’s uncertain spectacle is scheduled only because the confirmation process has been abused. Democrats willfully sat on Ford’s allegations and raised them in an untimely manner after the hearing. New meager allegations have come out of the woodwork in the same fashion.