Timing is Everything

We will assume anyone reading this has already read or heard the particulars about the sexual assault allegations made against Judge Kavanaugh by research psychologist Dr. Christine Blasey Ford. Paula and I had an immediate gut reaction to this as we’re sure many of you did, followed by a hunger for more credible information.

In this case, both the timing and nature of the accusation against Judge Kavanaugh are so obviously and transparently convenient for those opposing his nomination, we’re convinced that even some of his harshest critics must have cringed when they first heard it reported (critics have credibility concerns too!). It had to be clear to both Senator Feinstein and Dr. Ford that as serious as this accusation may be, it could not possibly be unveiled at the time it was without instantly being seen as a blatant political weapon. Whether or not the assault actually occurred is irrelevant to this observation because of the timing and the specific Judiciary Committee member to whom it was reported. We know that some politicians, particularly those at the extremes of their respective ideologies, have no qualms about using any crisis or event as a weapon against their opponents if it will further their political goals. In this case however, it is a private citizen wielding the weapon. And not just any private citizen. This person has a PhD education placing her in the very top tier of academic achievers and lending an extra credibility to her claim.

It’s not often you get to see a perfect textbook example of anything played out right in front of you. However, after Dr. Ford’s accusation was made public, her lawyers demonstrated near-flawless execution of delay tactics on a confirmation process that appeared a fait accompli. The timid acquiescence of the Judiciary Committee Chairman made it look all too easy and in our view set a terrible precedent. During this manufactured delay two additional violent and breathtaking accusations materialized, also unsupported by evidence or witnesses, that were apparently also not important enough to report during the formal hearings of the committee. Committee Chairman Grassley appeared to be trapped in a “political correctness cage” and incapable of acknowledging there could be an ulterior motive afoot. While it’s possible he may have just been cleverly managing a more complex situation than we are all aware of, he came off as being “played” embarrassingly easily.

There are well-known reasons why victims of sexual assault often only report the crime well after the fact, if at all. Waiting to do so until the exact moment of greatest political gain is not one of them. Choosing that moment has had the effect of reducing the ugliness of a sexual assault experience to just another arrow in a political party’s quiver. In that context, it doesn’t matter if the charge is true because the objective is political gain, not a helpful remedy for the victim. It cheapens the significance of the trauma for all genuine victims and serves only to increase skepticism of future accusations that are in any way associated with politics or politicians. An obvious current example is that of Karen Monahan’s domestic violence allegations against Democrat Congressman Keith Ellison who is seeking the Office of Attorney General in Minnesota. Congressman Ellison is claiming Ms. Monahan “fabricated” her claim against him of physical abuse despite the event being far more recent and having more evidence to examine than in Dr. Ford’s case. Congressman Ellison’s own words about this accusation give the best description of what the milieu has become – “Look, in this political environment, I don’t know what somebody might cook up”. Prior to Dr. Ford’s accusation, the questions most asked of Judge Kavanaugh had to do with his stance on the 1972 Roe vs. Wade abortion case. There is an interesting historical irony to this in that Norma McCorvey, a.k.a. Jane Roe, fabricated a story of being raped in an attempt to obtain a legal abortion in Texas prior to her famous case being tried. Roe later admitted to her attempted deception.

What if Dr. Ford was simply seeking retribution for a crime that, as a practical matter, cannot be satisfactorily adjudicated legally 36 years later? If her true aim was to prevent Judge Kavanaugh from being confirmed to the Supreme Court, her odds for success were much greater had she made her accusation before the President announced the nominee. The President made it known Judge Kavanaugh would be a potential nominee nearly a year ago (November 2017). Since there were several other equally competent nominees in the running and the President was keeping his preference secret as he reviewed the choices, he would likely have excluded any nominee accused of sexual assault, truthfully or not, for sake of expediency. There would have been a lot less drama and fanfare in this scenario, if any at all, and Dr. Ford’s presumed goal would’ve been accomplished. Waiting instead to have her charge revealed after Judge Kavanaugh was nominated and all the investigations and hearings had concluded lowered her odds of success dramatically. Apart from the obvious skepticism associated with any 11th hour accusation, a far greater “investment” of time and effort had been made in the confirmation proceedings, naturally ensuring a strong defense of the process by the Judge’s supporters. Dr. Ford now had a much greater mountain of inertia to overcome.

Another curiosity of Dr. Ford’s claim against Judge Kavanaugh is that his supposed sexual assault upon her is apparently not egregious enough to disqualify him from serving as a Justice on a Federal Appeals Court (namely the DC Circuit). It is only bad enough to prevent him from serving on the Supreme Court. Judge Kavanaugh was serving on the Federal Appeals Court in 2012 when Dr. Ford first revealed her incomplete memory of the sexual assault to a counselor. At that time, she chose not to make a formal accusation to police or any federal government officials. Judge Kavanaugh continued serving on the Court of Appeals for six more years after that during which time Dr. Ford remained silent. Had the President chosen a different Supreme Court nominee in July, Judge Kavanaugh would still be serving as an Appeals Court Judge almost certainly without any sexual assault accusations against him. This would seem to indicate that Dr. Ford has herself determined that while the position of Supreme Court Justice is unsuitable for an attempted rapist who almost accidentally killed her, that of a Federal Appeals Court Judge is acceptable. In fact, if Judge Kavanaugh is not confirmed as a Supreme Court Judge, the result is that he will remain serving as a Federal Appeals Court Judge.¹ How does that square with any notion of justice?

We have two suggestions for how all this could be brought back into balance, neither of which will likely be implemented, but we believe would work:

1.  Dispense with public hearings conducted by the Judiciary Committee in the Supreme Court Justice conformation process. These hearings have been transformed into nothing more than a platform for “grandstanding” by self-aggrandizing Senators. No new information about any nominee is ever revealed in these hearings that isn’t already known from prior interviews with the nominee and background investigations. The committee should simply take the needed time to privately assess all the investigative and interview information and then vote. Additionally, rules for the time frame of introduction of additional information of any kind into the confirmation process need to be established and enforced.

2.  Any allegations made against the nominee after the committee’s investigation and interview period is over negates their validity and will not be entered into the nominee’s background record or spawn additional hearings. If a Committee member participates in the late introduction of such an accusation (e.g. Senator Feinstein in this case), that Senator should be immediately referred to the Ethics committee for disciplinary action to include Censure or Expulsion. The confirmation process cannot be an opportunity for revenge or blatant character assassination for political gain. Strategically waiting until this point in the confirmation process to bring egregious claims with no supporting evidence or corroboration from witnesses cannot be accommodated – period.

The last two years have been filled with very public sexual misconduct accusations against a slew of high-profile business, entertainment and government individuals. This led to a movement called “Me Too” organized to create a supporting environment for those who have been abused. Because of the sheer number of these cases that have recently come to light, a preponderance of which are backed up with evidence and/or witnesses, we are now said to be living in the “Me Too” era. We have no doubt the rise of this “movement” has encouraged the instantaneous conferring of “guilt by accusation” on Judge Kavanaugh. It has also provided a “cover” for politicians to simply ignore any skepticism associated with the timing or content of Dr. Ford’s allegations.

We watched and listened to the entirety of the Committee hearing featuring both Dr. Ford and Judge Kavanaugh. At the end, we were still left without an answer to the main question we’ve had from the beginning. Why did Dr. Ford send a “confidential” letter detailing her accusation to Senator Feinstein in the first place? The explanation that Dr. Ford simply wanted Senator Feinstein to keep her name confidential from the Committee, but privately share the content of her story, is belied by the fact that Senator Feinstein never revealed the accusation to the Committee at all, even anonymously. She never mentioned the letter or its contents at any time during the formal Committee hearings or during the FBI background investigation. Did Dr. Ford intend that the Committee and FBI remain completely unaware of her charge during this time (43 days)? It appears so since Dr. Ford and Senator Feinstein both stated in the hearing that information about the letter was ultimately “leaked” (Feinstein even blamed Dr. Ford’s beach friends) against both of their wishes. Those leaks then supposedly spawned a series of “unintended” events leading to the 11th hour release of the assault allegations. Both Dr. Ford’s and Senator Feinstein’s account was that they were thus induced to go public so the “story” could be unveiled accurately (and not embellished by the media). So we ask, what if these “leaks”, having their own impeccable timing, hadn’t occurred? Are we to believe the intent of both Dr. Ford and Senator Feinstein was that the content of the letter remain unknown to the committee, the FBI, and the public forever? The logic train breaks down here.

Regarding the role of the FBI – In the confirmation proceedings for Clarence Thomas in 1991, Anita Hill made last-minute accusations of sexual harassment against Judge Thomas. At the time this harassment supposedly occurred, Anita Hill was a federal employee as was Clarence Thomas. Sexual harassment is a federal crime when federal employees are involved and as such fell squarely within the jurisdiction of the FBI to investigate. Brett Kavanaugh was not a federal employee at the time of the assault claim against him and Dr. Ford has never been a federal employee. Thus, there is no potential federal crime for the FBI to investigate in Dr. Ford’s claim. This is an easily knowable fact that every Senator on the committee is aware of and has conveniently ignored. The key point here however is that the FBI did perform a background investigation on Judge Kavanaugh (for the 6th time) after he was nominated by President Trump. During the entirety of that FBI investigation, Senator Feinstein made the conscious decision to withhold from the FBI all the information she had from/about Dr. Ford. It was farcical to hear Senator Feinstein and her colleagues insist publicly that an FBI investigation in this matter was required when it was Senator Feinstein herself who had already clearly decided it wasn’t.

There is a very real universe of politicians who simply and coldly calculate the probability of a useful political outcome if a personally destructive accusation is deployed at just the right time. That the accusation is completely false or completely true is not a variable in their calculation because the resulting political outcome is all that matters. These people, Senator Feinstein now counted among them, possess the same characteristic indifference as a sociopathic criminal. Not to be dramatic, the analogy fits in the following way – sociopaths can kill one person after another because they place no value on human life and feel no empathetic emotion when causing a person’s death. Assigning no value to the humanity, dignity and achievement of a political opponent allows Senator Feinstein and her ilk to publicly destroy that dignity and achievement in a person time and again without any remorse for its effect on the targeted human being. That the person in question is guilty or innocent of any wrongdoing is irrelevant.

To be continued…

¹A separate legal and/or impeachment proceeding, placing a far greater weight on actual evidence and witness corroboration (none of which currently exists) would be required to remove the Judge from his Appeals Court position.