A Supreme Court Drama: Credibility, Likeability and Group Membership

In the public eye, Kavanaugh and Blasey Ford became totems, symbols.

It was high drama in the normally staid Senate Judiciary hearing room.

The President had named Brett Kavanaugh, a Court of Appeals judge, as a candidate for Associate Justice of the nation’s highest court. A family man, with a stellar reputation and a conservative judicial record, Kavanaugh was expected to pass Senate confirmation hearings with flying colors.

But at the last moment, Senator Diane Feinstein released a letter that changed all that. In the letter, former Kavanaugh acquaintance Christine Blasey Ford, made a stunning accusation against Kavanaugh which led to one of the most dramatic moments in the history of Senate proceedings.

The Testimony

According to Ford, 36 years earlier, the 17 year old Kavanaugh sexually assaulted her when she was just 15 years old. Kavanaugh was accompanied by a male friend.

As her audience sat in rapt attention, the accuser tearfully recounted the events surrounding the alleged assault. “I am terrified,” she told the senators. Her voice trembled. In her telling, she had decided to come forward out of a duty to inform.

In his testimony, which immediately followed that of his accuser, Kavanaugh’s demeanor was far from what one would expect from a justice of the high court. He angrily denied Ford’s accusation. He claimed that it was a politically motivated attack intended to “blow me up and take me down.” He alternated between disgust and outrage. In the face of questioning, he was sometimes insolent. At other times he looked like a schoolboy who had just been scolded and was about to burst into tears.

But who was telling the truth?

To feminists and liberals, Ford was convincing. No one could invent these things. Someone who was lying could not have so convincingly portrayed the emotions of hurt, terror and fear. Ford was speaking her truth with desperate honesty.

To conservatives, Kavanaugh was equally convincing. His anger and hurt were the cries of an innocent man, desperately trying to defend himself against false charges. His suffering was obvious and he was brave.

What is It All About?

This drama was not simply a confirmation hearing for a Supreme Court judge. It was a morality play with echoes of earlier controversies: the Dreyfus Affair, the House Un-American Activities Committee, the OJ Simpson murder trial.

Even more disturbing, with the media frenzy surrounding the hearings, Ford and Kavanaugh lost their humanity. In the public eye, they became totems, symbols.

To many, Ford was a symbol of the countless women abused under the weight of powerful men, supported by an inherently unfair and sexist society. Hers was the testimony of countless, voiceless women over the years, who, like her, had been sexually abused by men, by the “patriarchy”

Kavanaugh also became a totem. To some, he embodied the quintessential “angry white male”—-angry because his previously assured “privilege” was now shattered. Besides, he was a “frat boy,” that adolescent creature who represents society’s inherent misogyny. And he was public enemy number one to those sympathetic to the “hashtag-me too” movement, a new force that meant that women would no longer tolerate their mistreatment by men.

To others, Kavanaugh was a totem for traditional mores. Here was a prominent jurist and a family man, with all the values we admire. His hard work and decency were unfairly threatened.

But somewhere in the drama, a simple truth was forgotten: The only yardstick by which innocence and guilt should be judged are…..the facts. Likeability, perceived credibility and the group membership of the accused and accuser are irrelevant.

Under the weight of a similar accusation, current Supreme Court Justice Clarence Thomas convinced a Senate Judiciary Committee, and later the entire Senate, that he was innocent of the charges against him. And this, despite the impeccable credentials of his accuser, Professor Anita Hill. As in the Kavanaugh-Ford controversy, ultimately, the only people certain of the truth were accuser and accused.

Echoes from the Past

Our recent history is littered with figures who falsely convinced the entire nation that they had been assaulted. For a time, millions found their accusations to be credible.

In a sensational 1987 case, Tawana Brawley, a 15 year old black girl accused four white men of raping and brutalizing her. Initially, the public responded with an outpouring of sympathy for Brawley. Public rallies were held in her support. Her story was so convincing that she garnered the support of a host of community figures, from comedian Bill Cosby, to boxing promoter Don King, Nation of Islam leader Louis Farrakhan, civil rights activist Al Sharpton and others. By publicizing the case, Sharpton created a national media sensation. He claimed that state officials at the highest levels, as well as the US government, were covering up for the crimes of the accused. The state convened a massive grand jury investigation that involved 180 witnesses, 250 exhibits and over 6,000 pages of testimony.

In the end, a grand jury investigation proved that Brawley had invented the entire episode.

In a similarly sensational case in 2006, black college student, Crystal Gail Mangum, leveled a rape allegation against three members of the Duke University men’s lacrosse team. Like Brawley, her accusations were sufficiently credible to convince an army of officials and the public. As a result of Mangum’s accusation, a prosecutor filed charges against the three accused men. Duke University President Brodhead canceled the remainder of the 2006 lacrosse season and the men’s coach was forced to resign. But, as in the Brawley accusation 19 years earlier, the case fell apart as an investigation of Mangum’s charges proved she was lying.

Admittedly, Tawana Brawley and Crystal Gail Mangum were of lesser stature than Professor Christine Blasey Ford. But these earlier cases do illustrate the ease with which charges of sexual misconduct can achieve wide credibility among the public, as well as among journalists, prosecutors, government officials and community leaders.

Credibility, Likeability, and Group Membership

Clearly, credibility is an unreliable indicator of guilt or innocence—-even if many people agree that the accuser is credible. Likeability is equally suspect.

Nor should we judge the accused by their group membership. Feminist ideologues may be eager to put Kavanaugh front and center as an example of the evils of male chauvinism. For others, resentment of Kavanaugh’s “privileged” social class or of his white race may determine their view of his culpability regardless of the facts.

What happens when government and media elevate likeability, perceived credibility, or group membership as legitimate criteria to judge guilt or innocence? The answer is that government and societal institutions are damaged. The rules by which we live are damaged. What we do becomes less important than who we are, and how likeable and convincing we are to others.

And when these norms take over, our actions become less evidence-based, less fair, more tribal, more contentious. We are more poorly governed and less able to resolve conflict among the many interest groups that make up our country.

It is unlikely we will ever know what happened among three young people in a bedroom over 30 years ago. There is the disturbing possibility that we may elevate a wrong-doer to the highest court in the land.

But if we condemn Brett Kavanaugh without evidence, we will have harmed our democratic institutions and degraded our national culture.

It is a choice that will reverberate far into our future.

About the Author
The author is a life-long Zionist and advocate for Israel. He believes that a strong Jewish state is invaluable, not only to Jews, but to the world-wide cause of democracy and human rights. Dr. Berger earned a PhD in Social Welfare from the University of Wisconsin-Madison and has twenty-seven years of teaching experience. He has authored and co-authored three books as well as over 45 professional journal articles and book chapters. His parents were Holocaust survivors. Dr. Berger also blogs at: https://realbulletpoints.wordpress.com/
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