©Wendell
Griffen, 2018
Justice Is a Verb!
September 28,
2018
Now
that the September 27, 2018 Senate Judiciary Committee hearing spectacle involving
Judge Brett Kavanaugh and sexual assault allegation by Dr. Christine Blasey
Ford has concluded, let’s consider a few things.
Ponder white
male privilege, rage and cultural incompetence. The most controversial issue facing the
nation surrounding Judge Kavanaugh’s nomination is whether allegations that he
engaged in unlawful sexual conduct and bullying behavior as a high school,
college, and law student disqualify him for confirmation as Associate Justice
of the Supreme Court of the United States.
Although
Dr. Ford’s allegation that Judge Kavanaugh attempted to rape her when they were
high school students captivated national attention yesterday, Judge Kavanaugh
has also been accused of exposing his genitals to Deborah Ramirez. He has been accused of being present, if not
complicit, when his male friends allegedly gang-raped girls who were impaired
by alcohol and drugs. Judge Kavanaugh
has been accused of bullying conduct when inebriated.
The
Senate Judiciary Committee is the body responsible for advising the United
States Senate on the fitness of people who are nominated for lifetime
appointments to the federal judiciary. But
what happened on September 27, 2018 didn’t resemble a sensible and competent effort
by the Senate Judiciary Committee to hear any of the serious allegations about
Judge Kavanaugh’s fitness. Instead, we witnessed
an unforgettable display of white male rage, wounded pride, and cultural
incompetence.
Reflect
on Judge Kavanaugh’s visceral fury and evasiveness concerning why he refused to
request that the confirmation process be suspended to permit the Federal Bureau
of Investigation to investigate the allegations.
Imagine
how senators would consider it disrespectful had a woman or person of color
witness or nominee shouted at Judiciary Committee members during a confirmation
hearing.
Imagine
what the response might have been had a woman or person of color member of the
Judiciary Committee shouted curses toward other Committee members as Senator
Lindsey Graham of South Carolina behaved.
Imagine
how parents of color would be condemned for allowing teenagers of color to
engage in underage drinking.
Imagine
what would be said about parents of color if girls were sexually assaulted
during house parties where parents were not present and alcoholic beverages
were openly consumed.
Ponder
the white male rage, privilege, hypocrisy, and cultural incompetence displayed
yesterday.
Ponder deliberate
disregard for basic standards of credibility.
Trial
lawyers and judges know that demeanor is a fundamental aspect of evaluating
witness credibility. Evasive, belligerent,
insolent, and rude behavior during cross examination does not mean a witness is
telling the truth, but that a witness is offended about the prospect of things
being uncovered which the witness would rather hide.
Judge
Kavanaugh’s answers during questioning by Democratic members of the Judiciary
Committee were evasive. He rudely
interrupted questioners. He was flippant
in responding to questions about whether he lost consciousness or forgot events
that occurred when he became inebriated.
No
matter where Judge Kavanaugh attended prep school, college, or law school,
allegations of sexual assault, offensive sexual conduct, complicity in sexual
assault, and bullying deserve serious attention by anyone responsible for
evaluating a judicial nominee. But throughout
Judge Kavanaugh’s fiery and sometimes tearful testimony, he repeatedly evaded questions about his willingness to have the FBI investigate the allegations by making
self-serving and self-righteous claims about his academic rank in high school
and college, his efforts as an athlete, and his friendships as if that
information somehow should matter to anyone trying to learn the truth about the
allegations.
Does
anyone seriously contend that a woman or person of color who behaved as Judge
Kavanaugh did during testimony anywhere would be considered credible?
Ponder disregard
for the rule of adverse inference. It is
universally recognized – meaning accepted law everywhere – that when a party with
the power to produce information concerning a material issue fails or refuses
to do so, that failure or refusal creates a reasonable inference that the
information would be unfavorable to that party.
Trial judges and lawyers recognize this as the adverse inference instruction.
That
instruction is expressed in Arkansas Model Jury Instruction 106A as
follows: Where relevant evidence is within the control of the party in whose
interest it would naturally be to produce it, and that party fails to do so
without satisfactory explanation, you may draw the inference that such evidence
would have been unfavorable to that party.
Judge
Kavanaugh’s refusal to consent to an FBI investigation and President Trump’s
refusal to order an FBI investigation into the serious allegations about Judge
Kavanaugh’s fitness creates an inference that evidence which might have been
uncovered during an FBI investigation – which Judge Kavanaugh refused to
request and President Trump refused to order – concerning those allegations would
have been unfavorable to Judge Kavanaugh’s quest for confirmation.
Whatever
one may think about Judge Kavanaugh’s fitness to serve on the Supreme Court,
one thing is obvious. September 27, 2018
was not a good day for the Supreme Court, the nation, survivors of sexual violence,
the rule of law, cultural competence, and justice.
Thank
you, President Trump.
