Op-Ed

Should the sexual misconduct accusation against Brett Kavanaugh derail his appointment to the Supreme Court?

This raises the question of just how far back into people’s lives we should go to find something disqualifying when vetting them for a big job, Sophia A. Nelson writes

U.S. Supreme Court nominee judge Brett Kavanaugh is sworn in during a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, U.S., September 4, 2018. (REUTERS/Joshua Roberts)

Let me say at the outset that I believe Christine Ford’s allegations of sexual misconduct against Judge Brett Kavanaugh. She has accused him of physically and sexually assaulting her during a drunken stupor decades ago when they were both teenagers. “This is a completely false allegation. I have never done anything like what the accuser describes — to her or to anyone,” Kavanaugh said. Both are expected to testify at a hearing on Capitol Hill Monday, September 24.

I believe her because I know what it was like to be a girl in high school in the mid-1980s, and a professional woman in the early 1990’s. Women or teen girls who were sexually harassed, touched inappropriately, or verbally assaulted back then rarely talked about it for one simple reason: We thought no one would believe us, particularly if the perpetrator was popular, a football player or otherwise big man on campus. Worse, any young man doing such a thing back then would have wrongly felt perfectly entitled to do so (as a letter of support from 200 of Ford’s high school classmates suggests), and been incredulous if you suggested he was attempting to violate you.

Even though the accusation here is serious, I do not think that this issue alone should disqualify Judge Kavanaugh from being appointed to a seat on the Supreme Court.

Allow me to explain.

Brett Kavanaugh was at the time of these allegations a 17-year-old prep school boy, the son of a prominent Maryland judge and attorney. I fully understand then why Ford did not come forward at that time, for the reasons I just mentioned. However, the problem with this case now, is that what Ford alleges is criminal conduct and the statute of limitations has long since run out.

The Senate is not a courtroom, it is a congressional committee. Had this alleged incident been reported at the time, questioning would have occurred, statements would have been taken, witnesses questioned, blood alcohol levels tested. The record of facts would have been preserved. There could be no denials as we have now from Judge Kavanaugh that he wasn’t even at the party that night. Thirty-six years later, we have no record. We have a therapist notes from 2012, and a wife’s private account to her husband. And that is where we are stuck, because he says it never happened, and she vividly recounts that it did happen.

You may be experiencing a sense of Déjà vu. I know I am. Anita Hill spoke of humiliating innuendo and perverse sex talk about “Coke cans” “pubic hair” and “porno stars.” In the federal workplace, the EEOC of all places. Ford talks of being shoved in a room, her mouth covered, and being pushed down on the bed by a drunken high school boy, trying to force himself on her. Back then, judge Thomas, just like judge Kavanaugh today, vehemently denied the allegations made against him, and called the ensuing hearings “a high-tech lynching of an uppity black.”

The players are different, but the raging public spectacle is the same. A Republican president has nominated a conservative male jurist to join the nation’s highest court. Just when it looks like his confirmation was a done deal, devastating allegations surface from his past of sexually inappropriate conduct. The accuser is no ordinary woman; she is an accomplished professor. And she asks to keep her allegations anonymous fearing the inevitable retribution and attack on her character if her accusations should come to light. In 1991, the accuser was an obscure black professor at a conservative Christian university in Oklahoma. In 2018, the accuser is an obscure white female professor teaching at a state university in California.

The two women are separated by the span of time, this thing called social media, and dramatic social changes around how we treat sexual harassment and women in the workplace. Back then, the U.S. Senate had fewer than five women members, and in 2018, it has more than 20. On the Senate judiciary committee, which oversees the vetting of Supreme Court nominees, there were zero women members in 1991, and today there are four. There is also this tremendous force called, “MeToo” which has claimed the careers of some of Hollywood’s most powerful men, like Harvey Weinstein, and corporate moguls like, just last week, Les Moonves.

Ford has now come forward and put a face with her allegations made directly to Senator Dianne Feinstein of California in a private letter and it appears that she may testify before the U.S. Senate just as Hill did, and that the nominee will also have a chance to testify and deny the allegations under oath.

What we have now is a classic he-said, she-said. I know this will upset many, like me, who believe Ford is telling the truth. But absent an eyewitness who was in the room and verifies her account (Mark Judge, the other person Ford said was in the room at the time of the incident, denies that an assault happened) it is not right for us to tarnish the reputation and career of a man now well into his 50s, who is a sitting federal judge, and who, by all accounts, is an exemplary human being, father, mentor of young women and devoted husband.

If this were a pattern and practice in his life, I think it would be relevant to his fitness to serve. But if this is something he did one time in his life, as a drunken teenage boy, what he owes is a public apology to his victim and a pledge to teach other young men about the dangers of underage drinking to excess. The problem is he denies it ever happened. And that leaves us with the same predicament we had in 1991.

Moreover, all of this raises the uncomfortable question of just how far back into someone’s life we should go to find something disqualifying. We’re all very different at 17 than we are later in adulthood. What if he did do this, and was prosecuted as a juvenile? The records would have been sealed had he been charged as a juvenile and because juvenile records are expunged, it would not be on his permanent record and we may not even have been embroiled in this debate.

What if he went into the military, then college, then law school, and became an amazing man? Married. Had kids. Mentored young men to honor women. Would we still hold this against him? Would we have denied him a chance at redemption? We should not ruin a career because of something someone did at age 17. While I do not like what the judge is alleged to have done, I like even less where this is taking us as a democracy.

Sophia A. Nelson, Esq. is an award-winning author and journalist. She is author of the global best-selling book, The Woman Code: 20 Powerful Keys to Unlock Your Life (2014). Follow her on Twitter here.

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