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.