Kavanaugh: Do they know something we don’t know?

 Photo Credit: Wikimedia Commons

George Marsden | 15 October 2018


Commentary on Brett Kavanaugh’s nomination to the US supreme court has across the board exhibited flimsy conceptions of justice and blithe assumptions of facts. A recent Scotsman piece catches George Marsden’s ire.

After all the column inches that have likely exhausted most people’s patience with this Kavanaugh affair, one might be right in thinking quite enough has been written already. Especially when we consider that the events at hand happened overseas, and involve elected officials who are of immediate consequence to only a minority who will read this. But this is a cop out; for reasons too varied to introduce here, American domestic issues are now our issues too, and when commentary on them in the British press reveals a deeply worrying way of thinking, then something must be said in response. Dani Garavelli’s contribution to the Scotsman is as good an example of this sort of commentary as any, and so merits a rebuttal.


As will be noticed right away, the treatment we find of Dr Ford and then Justice Kavanaugh leaves little doubt over who gets the Garavelli endorsement. Dr Ford is “co-operative” and “eager to please”, while Justice Kavanaugh is the picture of the entitled, male, tantrum thrower. To many who have followed the coverage of this story, such a description will be familiar: a fact we should, by the way, find troubling.


If you are to accept Garavelli’s reading of the emotional states of accuser and accused then you must, as a consequence, believe that the latter is lying. Garavelli implies that Kavanaugh’s much commented on anger was the result of frustration at his privileges being denied, and of having to answer for a crime which Garavelli leaves us with no doubts that she believes he committed. You would have to presume, in short, that Kavanaugh has something to hide, and that his guilt is certain; if even the possibility that he is innocent is to be entertained, Garavelli’s argument comes to nothing.


This raises the question as to on what, exactly, Garavelli grounds her interpretation of Kavanaugh’s rage? Not much, I should say. Unless Garavelli knows something about that night 36 years ago that we don’t, it seems clear that all she has to go by is her mere desire to believe. Neither at the time of the publication of her piece, nor now that an FBI investigation has taken place, has a convincing piece of evidence been found to confirm Kavanaugh’s guilt, keep him off the Supreme Court, and convict him for a crime. I wouldn’t ask that someone who (I suspect) identifies as a leftist try to warm to Kavanaugh, or to accept his ireful speech as admissible in a Supreme Court hopeful, but even an ideological opponent should, at the least, be expected to entertain the idea that his rage was that of the wrongfully accused.  For wouldn’t anyone, in that case, express something like rage?


That this possibility isn’t even allowed is evidence enough that Garavelli’s mind was made up before the hearing got underway. Kavanaugh could conceivably be telling the truth (just as he could conceivably be lying) and his emotional state in the senate could be the product of his conviction of that truth. Yet Garavelli doesn’t allow him such a consideration.  Even at this late stage, there is no positive reason to remove that as one possible interpretation. So why is Garavelli seemingly so convinced that her interpretation is correct? Any fair minded person would tell you that they don’t know what Kavanaugh, in his heart of hearts, knows and thinks; Garavelli, on the other hand, appears to believe that she has a pretty good idea.  


Another certainty from the ever-sure Garavelli is her account of the motives of the “11 angry (Republican) men” who examined Dr Ford’s accusation at the senate hearing. According to Garavelli, their anger was moved by the disgrace they saw being heaped onto one of their own, the same frustrations, which so enraged Kavanaugh, of the privileged coming under fire. The implication is that Senator Lindsey Graham’s claim that “This is the most unethical sham since I was in politics” comes from his disbelief that a mere woman should have the temerity to question a conservative stalwart.


Well, not so. Senate Republicans are incensed at the partisan manoeuvring they claim is behind all of this, and I have to say the facts do appear to vindicate them. They would say that their acrimonious display at the hearing was the result of learning that Senator Feinstein had been approached by Dr Ford in July, and that their face contorting (as Garavelli puts it) was quite natural when the facts stink as they do. They are surely right in at least suspecting a political stitch up here.


If Sen. Feinstein had made Dr Ford’s accusation known to the senate as soon as she was made aware of it, then the FBI could have spent the summer investigating and two respected names would never have become linked to that painful display at the Capitol. Instead, Sen. Feinstein prevented knowledge of the alleged assault getting beyond a small group until the day after Kavanaugh’s official nomination, and for reasons that appear all too ignobly partisan. As a result, only a week was spent on the investigation: far too short a time to be considered satisfactory in a case like this (as many Ford supporters rightly point out).


When a defendant is automatically considered guilty merely because of who he is or, as has been the case here, who he was, then an injustice has been done to him; when an accuser’s claim is investigated without due thoroughness, then the same may be stated with equal vehemence. How dismal that those who state both are so few in number.


 Photo Credit: Wikimedia Commons


But I’m getting away from myself. What I hoped to show by raising the point of Sen. Feinstein’s dubious actions at the same time as Garavelli’s explanation of the behaviour of Senate Republicans was simply how incomplete an interpretation it is. Once we have the full facts at hand, the suggestion that Sen. Graham’s exhortations are merely the stuff of bigoted invective shouldn’t persuade anyone. Garavelli’s myopia here is striking.


Another of Garavelli’s grievances is that what took place in Washington D.C earlier this month was not “a job interview”, but a “consolidation of male power”. Quite right as far the first observation goes, but she loses me on the second. We didn’t see a job interview, but (whether male power was consolidated or not) what we certainly did see was a hearing. Garavelli’s assertion that there was a consolidation seems to be based on how Justice Kavanaugh’s treatment by senators differed from Dr Ford’s. Garavelli contends that too much attention was paid to Dr Ford’s perceived inconsistencies, and not enough on picking apart Kavanaugh’s version of events: but that isn’t necessarily evidence of invidious bias to the end of consolidation of male power. To help make this point, I refer Garavelli to the correction of her observation I made above: “we didn’t see a job interview, we saw a hearing.”


At a hearing, the onus must be on the accuser to prove the crime took place, not on the accused to prove that it didn’t; otherwise, defendants would need to prove a negative, which is hardly a fair way to proceed. Thus, the differing treatments of Dr Ford and Kavanaugh came about not because one was a woman and the other a man, but because one stood as accuser and the other as accused. The senate focused on the inconsistencies in Dr Ford’s story because it was for her to prove that a crime had taken place, and not for Kavanaugh to begin by proving that it hadn’t. This is what’s meant by the presumption of innocence, and why its defenders recognise the threat to judicial standards that #BelieveWomen poses: as a mantra, it would involve a shifting of the burden of proof so as to more or less put us in a position of presuming guilt.


Bookending Garavelli’s article is the notion that Kavanaugh’s appointment amounts to a “slipping backwards” to a time when women had few rights and men could get away with anything.Remarkably seeing Kavanaugh as “proof that nothing much has changed since 1953” she includes the revelations about Harvey Weinstein as another symptom of this depressing development. I can’t help but see as yet another misreading of the facts: The light that has been thrown on the sexual predations in Hollywood and the movement that it generated is in fact a sign of something precisely the opposite to what worries Garavelli. The very fact that the publication of Weinstein’s crimes have led to his ruin is at least one small step for womankind, no? What Garavelli is saying would be like arguing that an exposé on rhino poaching that led to the bankruptcy of its main perpetrators, and a resolve to see rhino poaching come to an abrupt end, bade well for the future of rhino slaughter.  


Nothing that Garavelli says in her article convinces me that we are at the dawn of some “misogynistic dystopia”. And speaking of Margaret Atwood, let’s not forget her own admonishment of the MeToo movement, that it might be a prelude to fixing the legal system, and not to tearing it down. Writing in Canada’s The Globe and Mail last January, Atwood defended adding her signature to a petition demanding justice for Steven Galloway, the academic who lost his job as a result of a false accusation of sexual assault.


In that particular case, guilt was presumed, and a life destroyed; and if this trend continues, then we might very well find ourselves in some sort of dystopia, although one more the fault of Dana Garavelli’s than of Brett Kavanaugh’s. Then again, as Andrew Sullivan points out in his excellent short piece for the Intelligencer, there’s a worry that Kavanaugh himself might nudge American politics further into unpleasantness. Sullivan is rightly worried that Kavanaugh’s “deference to presidential power” could make him little more than a White House mouthpiece whilst Trump is in office. Such a climax to all this would certainly be disheartening.


But if only to prove the point that the presumption of innocence must stand, and that the screamers who berated senators Flake and Cruz (and whom Garavelli mystifyingly finds sympathetic) will not have their way, then Kavanaugh’s successful nomination to the Supreme Court is a qualified victory at least.



Follow George Marsden on Twitter @Sior_Gwent  



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