Friday, September 28, 2018

LESSONS TO REMEMBER ABOUT THE KAVANAUGH SPECTACLE


©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.  

Thursday, September 27, 2018

THIS IS ANOTHER TAMAR TRAVESTY


©Wendell Griffen, 2018
Justice Is a Verb!
September 27, 2018

As President Donald Trump, Senate Majority Leader Mitch McConnell of Kentucky, Senate Judiciary Committee Chairman Chuck Grassley of Iowa, and Republican members of the Senate Judiciary Committee go through the motions surrounding the sexual assault and other allegations against Judge Brett Kavanaugh, I invite you to recall the Old Testament account concerning Tamar. 

According to 2 Samuel 13, Tamar was “a beautiful sister” of Absalom, King David’s second son.  She was also half-sister to Amnon, King David’s first son.  Amnon raped Tamar.  At 2 Samuel 13:21, we read that King David refused to punish Amnon because “he loved him, for he was his firstborn,” meaning the crown prince.  2 Samuel 13 offers important lessons about patriarchy, male privilege, objectification of women, and the ways powerful men mistreat victims of sexual assault. 

Judge Brett Kavanaugh denies that he sexually assaulted Dr. Christine Blassy Ford when they were teenagers.  He denies that he was present along with Mark Judge (his college roommate) when young women were plied with alcohol and sexually assaulted by other men.  He denies that he engaged in offensive sexual conduct toward women at all.  Then what makes the Old Testament lesson about Tamar relevant to Judge Kavanaugh’s confirmation? 

Like Tamar, Dr. Ford and the other women who accuse Judge Kavanaugh of sexual violence have been maligned by powerful men who are determined to shield Judge Kavanaugh.  President Trump, Majority Leader McConnell, Judiciary Chairman Grassley, and Republican members on the Senate Judiciary Committee seem determined to shield Judge Kavanaugh from an impartial and professional investigation concerning the accusations by Dr. Ford and the other women who have accused Judge Kavanaugh of sexual violence.  Judge Kavanaugh, like Amnon, is getting “crown prince” treatment from the very people who have the authority and obligation to investigate the sexual assault allegations. 

Don’t be fooled because Senator Grassley has hired Maricopa County, Arizona prosecutor Rachel Mitchell to question Dr. Ford before the Judiciary Committee today.  Seasoned prosecutors and defense lawyers question witnesses publicly only after thoroughly investigating the background of those witnesses and the subjects the witnesses will testify about.  The FBI hasn’t investigated the sexual assault allegations about Judge Kavanaugh by Dr. Ford or anyone else.  The FBI hasn’t investigated Judge Kavanaugh’s denials of those allegations.  Why?  Because Judge Kavanaugh, like Amnon, is getting “crown prince” treatment from the people who can require FBI investigations into the sexual assault allegations.

Neither the prophet, Nathan, nor any other prophet spoke up for Tamar.  No religious leader denounced what happened to her, or condemned the way King David and other powerful men shielded Amnon.  Likewise, none of the religious leaders who brag about their access to President Trump and influence with Majority Leader McConnell, Chairman Grassley, and other Republicans on the Judiciary Committee have been quoted in the media concerning the sexual assault allegations made by Dr. Ford and other women.  Why?  Because Judge Kavanaugh, like Amnon, is getting “crown prince” treatment from religionists who claim to be moral counselors to Judge Kavanaugh’s political sponsors and allies. 

Amnon, as crown prince, was positioned to succeed David as king of Israel.  Judge Kavanaugh is positioned to succeed Justice Anthony Kennedy on the Supreme Court of the United States.  Like Tamar, Dr. Ford and other women who have accused Judge Kavanaugh of sexual violence are being patronized – but not protected – because they are viewed as disposable obstacles to the elevation of a privileged man to higher office.    

Privileged politicians and religious leaders – all men – are shielding Judge Kavanaugh and mistreating Dr. Ford and other victims of sexual violence in 2018 the same way privileged and powerful politicians and religious leaders – all men – shielded Amnon and mistreated Tamar in the Old Testament. 

I’ve written this essay to condemn the latest example of the Tamar travesty.  I’m also calling on Senators John Boozman and Tom Cotton of Arkansas to refrain from voting whether to confirm Judge Kavanaugh until the FBI has investigated and issued a written report to the Office of the President and the Senate Judiciary Committee concerning the accusations from Dr. Ford and other sexual violence victims. 

What are you doing to condemn and prevent the current example of the Tamar travesty? 

Wednesday, September 26, 2018

HAIL TO THE HYPOCRITES



©Wendell Griffen, 2018
Justice Is A Verb!
September 26, 2018

Woe to you, scribes and Pharisees, hypocrites!  For you tithe mint, dill, and cummin, and have neglected the weightier matters of the law:  justice and mercy and faith… You blind guides!  You strain out a gnat but swallow a camel!  Matthew 23:23-24 (New Revised Standard Version)

Those prophetic words by Jesus concerned moral and political leaders in Palestine during his lifetime.  They also apply, sadly, to evangelical religious conservatives and national political leaders regarding the nomination of Judge Brett Kavanaugh for Associate Justice of the Supreme Court of the United States (SCOTUS). 

The Constitution of the United States vests authority in the President of the United States (POTUS) to nominate “Judges of the supreme court” (Article II, Section 2.2) “by and with the Advice and Consent of the Senate.”  President Trump is the only person authorized to nominate Judge Kavanaugh to become Associate Justice of the Supreme Court.  He is also the only person authorized to request an investigative report, in writing, from the Federal Bureau of Investigation in the Justice Department concerning Judge Kavanaugh’s background for honesty, integrity, legal competence, and moral and ethical fitness. 

President Trump is the only person who can authorize the FBI to investigate the allegation by Dr. Christine Blassy Ford that Judge Kavanaugh sexually assaulted Dr. Ford when they were teenagers.

President Trump is the only person who can authorize the FBI to investigate the allegation by Deborah Ramirez that Judge Kavanaugh sexually exposed himself to her when they were students at Yale University. 

President Trump is the only person who can authorize the FBI to investigate reports by Judge Kavanaugh’s former schoolmates that Judge Kavanaugh engaged in boorish and offensive conduct during bouts of drinking when they attended high school, college, and law school. 

President Trump is the only person who can authorize the FBI to investigate whether Judge Kavanaugh's denials about the allegations are true.  He knows this.  Judge Kavanaugh knows this.  The members of the United States Senate know this.

Senator Charles “Chuck” Grassley and Majority Leader Mitch McConnell of the U.S. Senate are the people can request that President Trump direct the FBI to investigate the allegations that Judge Kavanaugh sexually assaulted Dr. Ford, sexually exposed himself to Ms. Ramirez, and engaged in drunken and boorish conduct during his years in high school, college, and law school.  They refuse to do so. And they also refuse to subpoena people with knowledge about Judge Kavanaugh's background concerning the sexual assault, sexual exhibitionism, and intemperate drinking allegations.

President Trump despises the FBI and its investigative role because he despises the rule of law. Mr. Trump fired James Comey as Director of the FBI after Comey refused to declare personal allegiance to Trump.  President Trump regularly criticizes the FBI for investigating allegations about corrupt practices, dishonesty, and other misbehavior by Trump administration officials, by Paul Manafort (Trump’s campaign chairman in 2016), Trump’s personal attorney, and people involved in Trump’s business practices. 

President Trump is a notorious misogynist and self-admitted sexual predator.  He once described his daughter as “a fine piece of ass.”   He once bragged that his maleness, celebrity, and wealth enable him to forcibly grab women by their genitalia. 

Majority Leader McConnell and Chairman Grassley know these things about President Trump.  Republican members of the Senate Judiciary Committee know these things about President Trump.  They and other Republican members of the Senate are not requesting President Trump to authorize the FBI to investigate serious allegations of sexual assault, sexual exhibitionism, and intemperate drinking by Judge Kavanaugh.  

Those leaders know that President Trump despises the FBI. And they know the FBI is routinely trusted to conduct non-partisan investigations concerning the backgrounds of all federal judges.  Each member of the Senate could properly refuse to vote on Judge Kavanaugh's nomination unless and until the Senate Judiciary Committee has received an FBI report and had the opportunity to conduct proceedings concerning the allegations against him based on that report.  Any member of the Senate could publicly announce that he or she will not vote to confirm Judge Kavanaugh unless and until the FBI has investigated the allegations, issued a report concerning them to the Office of the President and the Senate Judiciary Committee, and Judiciary Committee members have included the report and any questions they have regarding it in confirmation hearings.  

It is telling that no Senator has announced that he or she will take that principled stance.  Their refusal to do so makes each Senator complicit with President Trump’s gross disregard for the rule of law.

Judge Kavanaugh denies the allegations that he sexually assaulted Dr. Ford, exposed himself to Ms. Ramirez, and engaged in intemperate drinking.  However, because President Trump refuses to authorize the FBI to investigate those allegations, Judge Kavanaugh knows the allegations will not be investigated by the only non-partisan investigative agency authorized to question him and anyone else about them.  

Make no mistake, Judge Kavanaugh doesn't want an FBI investigation into those allegations.  Otherwise, Judge Kavanaugh would have issued a statement along the following lines:  "In the interest of transparency, the integrity of the confirmation process and the integrity of the Supreme Court, and justice, I ask President Trump to authorize the FBI to investigate the sexual assault, sexual exhibitionism, and drunken misconduct allegations that have been asserted against me.  For the same reasons, I also ask the Senate Judiciary Committee to suspend further consideration of my nomination until the FBI has conducted that investigation and issued a written report concerning the investigation to the Office of the President and to members of the Judiciary Committee.  I pledge to cooperate with FBI investigators and look forward to speaking with them concerning the allegations." 

Judge Kavanaugh has the power to issue that statement.  One word - hypocrisy - explains why he has not done so and will not do so.   

Wealthy donors to Republican politicians and self-proclaimed evangelical religious conservatives are determined to get Judge Kavanaugh on the Supreme Court at all costs.  They want Judge Kavanaugh to overturn SCOTUS rulings that uphold reproductive freedom for women and girls.  They want Judge Kavanaugh to limit the power of federal agencies to protect people, animals, the air, soil, and water from health risks posed by corporate polluters.  They want Judge Kavanaugh to limit access to voting by people who have been historically disenfranchised.  They want Judge Kavanaugh to vote against protections for workers. 

Hail to the hypocrites!  One longs to see people who believe in justice, mercy, and faith denounce them the way Jesus did. 

Woe to you, scribes and Pharisees, hypocrites! For you ...have neglected… justice and mercy and faith… You blind guides!  You strain out a gnat but swallow a camel! 


Wednesday, September 19, 2018

MISOGYNY, HYPOCRISY, AND THE BRETT KAVANAUGH SCOTUS CONFIRMATION PROCESS


Justice Is A Verb!
©Wendell Griffen, 2018

To use the lyrics of a song by Stevie Wonder (You Haven’t Done Nothing), I’ve been “amazed but not amused” by the way people have reacted since Dr. Christine Blassey Ford’s allegation surfaced last week that Judge Brett Kavanaugh sexually assaulted her when they were teenagers. 

It is amazing that people who profess to be “tough on crime” now seem willing to treat an allegation of attempted rape as mere horseplay because it allegedly was perpetrated by a drunken teenager named Brett Kavanaugh.

It is amazing that people who profess to support law enforcement – including members of the Judiciary Committee of the United States Senate – are unwilling to allow the premier law enforcement investigative agency in the United States, the Federal Bureau of Investigation, to investigate an allegation of attempted rape by a nominee to the Supreme Court of the United States (SCOTUS).

It is amazing that the President of the United States, Donald J. Trump, is unwilling to direct the FBI to investigate the allegation that President Trump’s nominee, Judge Kavanaugh, sexually assaulted Christine Blassey when they were teenagers.

It makes no difference that other women consider Judge Kavanaugh to be a decent man.  The issue is whether he tried to rape Dr. Christine Blassey Ford when they were teenagers.  If he did, then the issue is whether attempted rape – even as a juvenile – is conduct that should be considered in determining whether Judge Kavanaugh should be confirmed for appointment as an Associate Justice of the United States. 

In short, the issue is whether the nation deserves an impartial investigation concerning an allegation of juvenile misogyny, and whether that conduct, if it occurred, should somehow be excused decades later when the alleged misogynist is a candidate for a lifetime appointment to the highest court in the United States.  Do we really mean what we say when we say that women and girls deserve to be safe from sexual assault?  Or are we only paying lip service to the belief that sexual assault is despicable conduct, regardless to the age of an alleged assailant? 

Chairman Charles “Chuck” Grassley of the Senate Judiciary Committee should formally request that President Trump direct the FBI to investigate Dr. Ford’s sexual assault allegation against Judge Kavanaugh.  After all, investigation of presidential nominees for key appointments in the federal government, including appointments to the SCOTUS, is what the FBI routinely does. 

However, I doubt that will happen.  Chairman Grassley, his Republican colleagues on the Judiciary Committee, and Senate Majority Leader Mitch McConnell know how much President Trump dislikes – despises is probably the more accurate word – the FBI, the Justice Department, and the investigative process.  President Trump holds the wrong-headed belief that the Justice Department owes him, rather than the nation, personal loyalty. 

It is also rather unlikely, for another reason, that President Trump will ask the FBI to investigate Judge Kavanaugh regarding sexual assault.  President Trump has a less-than-favorable record when it comes to fair treatment of women.  He once bragged that his wealth, maleness, and celebrity allows him to forcibly grab the genitalia of women.

One is reminded of how King David, the second ruler of Israel, and other male leaders of his government failed after David's son and crown prince, Amnon, raped his half-sister and David's daughter Tamar (see 2 Samuel 13).  Tamar spent the rest of her life as an un-vindicated sexual assault victim because David and other male leaders were more interested in protecting Amnon than they were concerned about her.  

I hope Dr. Ford holds fast to her demand for an FBI investigation of her sexual assault allegation against Judge Kavanaugh.  Whatever the outcome of such an investigation might be, the nation can be sure that it will performed by qualified law enforcement professionals, including people skilled in performing investigations of sexual assault allegations. 

Professor Ford deserves to have her allegation investigated by the FBI.  Judge Kavanaugh also deserves it.  Above all, the nation deserves it.  It remains to be seen whether hypocrisy will cause Senator Grassley, his Republican colleagues on the Judiciary Committee, Majority Leader McConnell, and President Trump to try to fool the nation and wider world into believing they want a thorough investigation about whether Judge Kavanaugh engaged in a sexual assault – attempted rape.   

As Stevie Wonder put it so well in You Haven’t Done Nothing, “we are amazed but not amused by all the things you say you’ll do.”