Kavanaugh and Ford: What’s next and what you should know

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Supreme Court nominee Brett Kavanaugh shares testimony at supplementary hearings. Kavanaugh was accused of sexually assaulting Dr. Christine Blasey Ford and now awaits a second confirming vote. (Tom Williams/Pool Image via AP)

Ashley Weitz and her friend Liz Rank gathered along with hundreds of students, professors and community members at the University of Utah last week over an issue that has played out in a publicly partisan way during the past week — women who speak out about sexual assault.

Weitz said she has participated in a daily protest for nearly three months as part of a nationwide movement called #StandOnEveryCorner. The movement consists of daily peace rallies held in 231 cities across America.

A guest lecture by Anita Hill, a law professor at Brandeis University, on Sept. 26 brought them together 27 years after Hill’s landmark testimony before the Senate Judiciary Committee during confirmation hearings for now-Supreme Court Justice Clarence Thomas. Hill’s words echoed those of another historic hearing last week for Supreme Court nominee Brett Kavanaugh.

Much as Hill shared testimony in 1991 accusing then-nominee Thomas of sexual harassment, Dr. Christine Blasey Ford shared testimony Sept. 27 on live television, accusing Judge Kavanaugh of sexual assault before the Senate Judiciary Committee.

As the process to confirm Judge Kavanaugh continues, women across the country share hashtags on social media reading #BelieveSurvivors, reminiscent of the sign Weitz held at the University of Utah, which read, “#MeToo” and “Believe Survivors.”

With an event so tied to politics, social issues like the #MeToo movement and legal technicalities like claims of sexual assault and the confirmation process, it can be difficult to follow things clearly. Here’s what you need to know:

Judge Kavanaugh’s nomination and the accusations that came out against him

President Donald Trump announced Kavanaugh as his Supreme Court nominee July 9, 2018. At the White House press conference, Trump spoke to Kavanaugh’s character and legal background.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law,” Trump said. “ Throughout legal circles, he is considered a judge’s judge, a true thought leader among his peers.”

Once nominated, Kavanaugh began the confirmation process, including FBI investigations, background checks and preliminary hearings.

On Sept. 12 The Intercept reported Senator Dianne Feinstein was withholding a document describing an accusation against Kavanaugh. Four days later, on Sept. 16, Ford came forward as the author of the letter and shared the details of her allegations with The Washington Post. In the article, Ford shared details of a night 36 years ago when she claims Kavanaugh sexually assaulted her.

Feinstein has been criticized for withholding the letter, which she received in late July.

Trump shared his thoughts on Feinstein’s decision via Twitter:

“Senator Feinstein and the Democrats held the letter for months, only to release it with a bang after the hearings were OVER – done very purposefully to Obstruct & Resist & Delay. Let her testify, or not, and TAKE THE VOTE!”

In the following days Kavanaugh, Ford and the Judiciary Committee agreed to a supplementary hearing in which Ford and Kavanaugh would both give testimony on the accusations of sexual assault.

How does social media and #MeToo come into play?

According to the Chicago Tribune, Tarana Burke coined the phrase “Me Too” to help women who had survived sexual violence. Over 10 years later, women attached a hashtag to the phrase and gave victims a voice and platform leading to accusations against high profile men like Harvey Weinstien and Bill Cosby.

BYU law professor Michalyn Steele said the #MeToo movement may come into play when victims come forward and in how Americans think about sexual assault or harassment.

“I think that one of the things that #MeToo has shifted is maybe an inclination to reject the idea that an accusation of sexual assault is false until proven true,” Steele said.

The movement “brought out of the shadows how common this experience is and it has helped to shed light on why (survivors) don’t report at the time,” she said.

What is the significance of the supplementary hearing?

Ford’s accusation of sexual assault did not come out until after Kavanaugh’s confirmation hearings had already begun. The hearing in which Ford testified was an additional hearing — an addition that is uncommon in the Supreme Court nomination process, according to BYU law professor Eric Jensen.

He said it is imperative to make a distinction between a criminal trial and the role of the hearing.

“If this was a trial and Kavanaugh was convicted, he could go to jail. None of that is at play here; this is simply to see if he is competent to serve as a Supreme Court justice,” Jensen said. “So it may look like a trial, in the sense that he’s been cross examined and witnesses are coming and speaking and they’re testifying under oath like they would in court, but there is no implication of criminal sanction as a result of this.”

Jensen said such hearings are an entity all their own.

Steele pointed out that the role of evidence is another important reason why there needs to be a clear distinction between a trial and hearing.

She said in a trial situation, the principle of “innocent until proven guilty” holds valuable standing and there is a required burden of proof, but those principles don’t necessarily extend to other arenas.

“I suppose it’s different if what we’re talking about is the right of someone to continue as the CEO of a company, the right of someone to be in a position of authority over women in a job setting,” Steele said. “It’s a different calculation, and I don’t know that the standard needs to be innocent until proven guilty.”

The Senate, as Steele explained, is a separate entity. They are unique from other organizational bodies and are “really not constrained by rules of evidence.”

Steele said often a witness testimony in seemingly “he said, she said” cases can be undervalued, when, in fact, it should be treated as evidence.

“A woman’s testimony is evidence. And sometimes they say ‘there’s no evidence,’ but a woman testifying is evidence of an assault. They may be meaning there’s not other evidence, but it’s not that there’s no evidence. Someone has testified (about) what happened to her,” Steele said.

According to the National Sexual Violence Resource Center (NSVRC) “rape is the most under-reported crime,” and 63 percent of sexual assaults are not reported to police. In addition, the center reported that the prevalence of false reporting is “low,” between two and 10 percent.

BYU Sexual Assault Survivor Advocate Lisa Leavitt said despite low statistics of false reporting, fear of not being believed is the biggest reason why victims don’t come forward.

“I think that’s huge for almost every victim,” Leavitt said. “Even in the way that they’ll talk about it, they’re kind of doubting themselves and they’re sort of phrasing it in a way that’s like, ‘Well I know you probably don’t believe me.’”

Watch Ford’s opening statements from the Sept. 27 hearing below.

What about Kavanaugh’s testimony?

In the supplementary hearing, Kavanaugh was given the opportunity to address allegations brought against him. He denied them all under oath.

Steele said in addition to the testimony he gave, Kavanaugh’s demeanor in the hearing is a legitimate point to consider.

“Judge Kavanaugh himself has taken the position, and I agree with the position, that a judge or a justice of the Supreme Court cannot have any appearance of partiality,” she said. “They must be seen to be impartial. The court is not a political institution and the court must not be seen as a political institution.”

In contrast, Jensen said the circumstances of the hearing were unique and therefore might not be as important for the Senate Judiciary Committee to consider.

“I think the demeanor is important. But I don’t see a Supreme Court justice ever being personally attacked and challenged like that in his role as a justice,” Jensen said.  “I don’t think his demeanor in these hearings, where he is clearly being personally attacked, is very telling.”

BYU political science professor Adam Dynes said in the case of appointing justices to the Supreme Court, a high standard of scrutiny is appropriate.

“We want our Supreme Court justices to be high legal minds, but we should also have a high moral standard,” Dynes said.

The issue of Kavanaugh’s demeanor was one of many points of comparison to Justice Thomas’ hearing in 1991, Steele said.

“There was a great similarity in the outrage and anger, the tone and the tenor of the way the nominees responded. It felt almost like they were shouting down the women’s voices,” Steele said.

Watch Kavanaugh’s opening statements from the Sept. 27 hearing below.

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What happened next?

Following the testimonies, the Senate Judiciary Committee voted to confirm Kavanaugh’s nomination Sept. 28.

However, given the accusations against Kavanaugh, Trump — with the support of the Senate Judiciary Committee — opened a second FBI investigation to further explore Ford’s accusation along with accusations from other women.

Investigations began Sept. 28 during which time the FBI interviewed other witnesses named in the hearings: Mark Judge, Leland Keyser, Patrick “PJ” Smith and Christopher “Squi” Garrett.

Jensen said while the accusations may merit an investigation, the time allotted to conduct the investigation was insufficient.

“The FBI can do nothing in a week. And Judge Kavanaugh made this point in his testimony, that even if the FBI did a full investigation, they’re not going to come to any conclusions or make any recommendations. They’re just going to lay out the facts. And I’m not sure what the FBI would get from that, other than what we already know,” Jensen said.

According to a New York Times article, “a statement issued by the White House around 2:30 a.m. (Wednesday) said the F.B.I. had completed its work and that it represented an unprecedented look at a nominee.”

The next step will be a full Senate vote to confirm Kavanaugh, scheduled for Friday, Oct. 5.

In regards to the Senate vote and the controversial nature of the hearings, Steele said she hopes the Senate will honor their responsibilities while deliberating.

She referenced statements from Sen. Robert Byrd — who participated in the Clarence Thomas hearings — saying “the benefit of the doubt goes to the Supreme Court,” because “the institution is too important for us to get it wrong.”

She continued, “The senators’ right to advise and consent, that is delegated to them by the Constitution, is to protect the court — not to protect a president of their political party, not to protect an individual who aspires to the court. Their absolute first duty is to the Constitution and to the separation of powers that the Constitution embodies.”

51 senators voted early Friday Oct. 5 to advance Kavanaugh to a final confirmation vote. This is not the final vote, but it does indicate how the senate majority feels.

What can Americans take away from the hearings?

Leavitt said the most important lesson from the hearings are that issues of sexual assault or harassment are “not a women’s issue.” She said Americans need to have discussions about sexual assault with an open mind.

Steele said she hoped the events would encourage thorough vetting for nominees and suggested the hearing “has intergenerational consequences.”

In her speech at the University of Utah, Hill said it is important to get a “clear assessment of the problem” recognizing sexual assault as a “cultural problem and not a behavioral or individual problem.”

At the close of her lecture she posed a question to the audience:

“What will you do? What will you do if the outcomes or results are not to your liking?” she asked.

She then asserted that she would continue to use her voice and fight for better understanding of sexual assault.

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