Ford vs. Kavanaugh

David French:

The allegations against Brett Kavanaugh — outlined now on the record in the Washington Post by Palo Alto University professor Christine Blasey Ford — are substantial and serious. She claims that Kavanaugh knocked her down, groped her, and attempted to remove her clothes. Here’s the core of her story:

While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.

“I thought he might inadvertently kill me,” said Ford, now a 51-year-old research psychologist in northern California. “He was trying to attack me and remove my clothing.”

Ford said she was able to escape when Kavanaugh’s friend and classmate at Georgetown Preparatory School, Mark Judge, jumped on top of them, sending all three tumbling. She said she ran from the room, briefly locked herself in a bathroom and then fled the house.

Do not count me among those who would minimize this alleged assault. I went to a high school that had more than its share of drunken parties, and my classmates could do crazy and stupid things, but an act like this was beyond the pale. This isn’t “boys will be boys.” Actions have consequences, and it’s hardly unjust to tell a person that if he mistreated another human being like this — even a long time ago — he has to remain “merely” a judge on the D.C. Circuit Court of Appeals.

Since Kavanaugh has denied the story, however, the question of whether the event is so egregious that it should disqualify him is moot. At the very least, if the attack happened, he should be disqualified for lying.

Yet unless all parties start telling the same story, there is no way to know for certain if this event occurred. We don’t need certainty, however, to make a decision on whether a man should sit on the Supreme Court. I have the same standard for Brett Kavanaugh as I did for Roy Moore, for Donald Trump, for Bill Clinton — or for any other politician who’s accused of misconduct. Is it more likely than not that the allegation is true?

Given the totality of the evidence, I believe it is more likely than not that Bill Clinton committed rape and sexual harassment. I believe it is more likely than not that Donald Trump has committed sexual assault. I believe it is more likely than not that Roy Moore engaged in sexual misconduct with underage girls. But the evidence against Kavanaugh falls far short of the evidence arrayed against each of these men. So far at least it falls far short of the evidence against virtually any other politician or celebrity who has faced consequences during this #MeToo moment. Here’s why:

First, one way to help test the veracity of old claims is to ask whether there is any contemporaneous corroboration. Did the accuser tell a friend or family member or anyone about the alleged assault when it occurred? With Clinton, Trump, Moore, and many other politicians and celebrities, there was ample contemporaneous corroboration. Here, there was not. According to the Washington Post, “Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband.”

That’s almost three decades of silence — three decades when memories can grow cloudy and recollections can change.

But even the allegedly corroborating notes of the therapist raise a separate problem. They actually contradict her story on a key detail. According to the Post, “The notes say four boys were involved, a discrepancy that Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.” Nor do the notes mention Kavanaugh’s name, even though her husband says Ford named Kavanaugh in the sessions.

Those are important discrepancies, and if six years ago she told the therapist four men and says two men now, that suggests that her memory of the event may be suspect.

As a former trial lawyer, I can tell you that while neither notes nor memories are infallible, in a contest between contemporaneous notes and later verbal testimony about those notes, the content of the written notes usually prevails. Juries are extremely skeptical of witnesses who contradict written notes — after all, the notes are taken when the words are immediate and there isn’t the overwhelming pressure of a trial to conform your testimony to the desired outcome.

At least the investigation seems somewhat manageable. If there were only four boys there, who were the other two? Let’s hear from them. In fact, investigators should interview everyone else at the party.

Yet given all the years that have passed, would it be possible to find anyone who remembers being at that party? Would they remember any details at all? If someone saw Kavanaugh stumbling drunk at the party, that would obviously bolster Ford’s account. If another attendee says, “He was totally sober and with me the whole time,” that helps Kavanaugh. But the odds of getting details that precise are long indeed, and there is always a chance that a motivated classmate might lie — for either person.

Finally, there are no other allegations of sexual misconduct against Kavanaugh. If there’s one thing we’ve seen time and again, it’s that one allegation often triggers a cascade of additional claims. There seem to be precious few men who engage in serious sexual misconduct just once. If this was the kind of behavior that Kavanaugh engaged in, then look for more people to come forward. If no one does, however, we’re left with a sole claim, made by an opposing partisan (Ford is an outspoken progressive), that Kavanaugh strenuously denies, that lacks any contemporaneous corroboration, and that is contradicted in material respects by her therapist’s own notes.

That does not add up to “more likely than not.”

But these conclusions are tentative and preliminary. The next three days are crucial. We’ll likely hear more from Ford. I expect we’ll hear more from Kavanaugh. People who were at the party may come forward with their own accounts. The news cycle is moving so fast that it seems almost absurd to speculate about the state of our knowledge even 24 hours from now, but if this is the core evidence supporting the (very serious) claim against Kavanaugh, it’s not sufficient to derail the nomination of a man with an otherwise sterling record of professional excellence and personal integrity.

Jim Geraghty adds:

We need a way to evaluate accusations of sexual misconduct against public figures beyond “I like the accused person” or “I don’t like the accused person.”

Up until Sunday afternoon, the vague-but-ominous-sounding accusation against Kavanaugh didn’t have a named accuser, and those of us who prefer to see the judge confirmed had an exceptionally strong argument: You can’t destroy a man’s career and reputation on the basis of an anonymous allegation and no evidence.

Now it’s no longer an anonymous accusation; the Washington Post printed the account of Palo Alto University professor Christine Blasey Ford Sunday afternoon, and the accusation now has some more specifics. But there’s a catch:

After so many years, Ford said she does not remember some key details of the incident. She said she believes it occurred in the summer of 1982, when she was 15, around the end of her sophomore year at the all-girls Holton-Arms School in Bethesda. Kavanaugh would have been 17 at the end of his junior year at Georgetown Prep.

Ford said she does not recall the date “around the end of her sophomore year” or the exact location, or “who owned the house or how she got there.” It’s natural that some memories would be hazy after 36 years and alcohol consumption at the time of the incident; in Ford’s account, she had a beer. But this means that if anyone can contradict any detail of her account, she has the built-in excuse of a hazy memory. Perhaps Kavanaugh could prove he was away from the D.C. area during some periods of late spring or the summer of 1982, but because the allegation can’t even be narrowed to a particular month, that would be pointless.

There is evidence that Ford discussed her experience and allegations before now, but that has complications:

Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.” The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.

As noted, Kavanaugh denied the accusation. The White House points out that Kavanaugh has undergone six FBI background checks over the course of his career and none of them uncovered this event, or any other events like it. The one other witness that Ford names, Kavanaugh’s friend and classmate Mark Judge, denied her allegations in a statement to The Weekly Standard:

Now that the anonymous person has been identified and has spoken to the press, I repeat my earlier statement that I have no recollection of any of the events described in today’s Post article or attributed to her letter. Since I have nothing more to say I will not comment further on this matter. I hope you will respect my position and my privacy.

The Post writes, “Ford named two other teenagers who she said were at the party. Those individuals did not respond to messages on Sunday morning.”

As of this writing, there are no photographs of the two together, no letters between them, no physical evidence proving that the two met each other, much less that the events occurred as she described.

The allegation against Kavanaugh is almost certain to get lumped into the discussions about #MeToo and powerful men engaging in wanton sexual misconduct. Unless more women come forward, this will be exceptionally unfair to the judge; all of the most infamous cases of #MeToo have involved multiple accusers and patterns of abuse. In at least two cases that were briefly high profile, the accusations were found to be either false or insufficiently provable to carry consequences. CNN reinstated Ryan Lizza, formerly of The New Yorker, after conducting what it called “an extensive investigation” and concluding, “based on the information provided and the findings of the investigation, CNN has found no reason to continue to keep Mr. Lizza off the air.” AMC reinstated television host Chris Hardwick after a suspension for allegations of being abusive in a past relationship, declaring “given the information available to us after a very careful review, including interviews with numerous individuals, we believe returning Chris to work is the appropriate step.”

The Post‘s story ends with Ford’s husband declaring:

“I think you look to judges to be the arbiters of right and wrong,” Russell Ford said. “If they don’t have a moral code of their own to determine right from wrong, then that’s a problem. So I think it’s relevant. Supreme Court nominees should be held to a higher standard.”

Indeed, but … Kavanaugh has been a federal judge on the U.S. Court of Appeals since 2006. If this allegation is serious and important enough to deter his confirmation by the Senate now … why was it not serious and important enough to deter his confirmation by the Senate twelve years ago?

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