Déjà vu, but not all over again. As the story emerges of sexual assault-type allegations against Supreme Court nominee Brett M. Kavanaugh, it is important not to leap to misleading parallels between the situation now and the allegations 27 years ago against Supreme Court nominee and now-Justice Clarence Thomas. It’s also important not to draw false conclusions; in fact, a failure to block Kavanaugh’s confirmation on the basis of this accusation would not signal the failure of the #MeToo moment. It would not indicate that nothing has changed.
I have some basis for making this assessment: I was there, literally, at the Clarence Thomas-Anita Hill hearings. I thought the facts, contested and convoluted, backed Hill’s story then, and I believe that now. And as this unexpected echo reverberates, there are reasons both to treat the allegations against Kavanaugh seriously and reasons to doubt whether they are, or will turn out to be, sufficient to deny Kavanaugh confirmation.
And there are reasons to withhold judgment about whether this episode reflects yet another example of people in power refusing to take the allegations of women, and allegations of violence against women, seriously. We didn’t talk about women’s “agency” back in the Thomas-Hill days, but part of ensuring a women’s agency is respecting her right to privacy, and to determine for herself whether she is ready to go public with her story. As far as I can tell, Sen. Dianne Feinstein (D-Calif.) should be praised for trying to honor the woman’s wish, not pilloried for failing to take her seriously.
And how seriously should we take this? Here is what I make of the story that has emerged so far:
High school is the place for juvenile, irresponsible behavior, most of which is irrelevant, can be excused and should be forgotten. It is not some kind of consequence-free zone. Certain behavior would be too serious to be ignored or to be immune from consequences. If there were convincing evidence that a nominee raped a woman in high school, he should not be confirmed.
The allegations against Kavanaugh, as far as we can tell so far, fall on a broad continuum between dumb, obnoxious, possibly drunk boys trying to get as far as they could with a girl and attempted sexual assault. This could be a frivolous, and therefore scurrilous, allegation, or it could be a serious one. That the woman came forward to complain about Kavanaugh suggests, although it falls far short of proving, that she experienced the situation as more threatening than a simple matter of unwanted attentions, easily rebuffed.
Some of the reported details are indeed more ominous: a locked door, music turned up to muffle protest, his hand over her mouth, him holding her down. That is not hijinks — that is potentially criminal behavior. More to the point, because criminal liability is unimaginable at this late stage, it is behavior that, if it falls toward the malevolent end of the spectrum, could reasonably be a basis for opposing confirmation. No one has an inalienable right to a Supreme Court seat.
Right now, though, this is a situation with more questions than answers: What, exactly, does it mean to allege that Kavanaugh “tried to force himself on her”? Who else was at the party? What did they see, if anything? Did she tell anyone at the time — her parents, her friends? Did she tell anyone later? Does she have any animus against Kavanaugh, any ideological or partisan motivations to try to derail his nomination?
Are there any other similar allegations, during high school or beyond? The supporting letter from 65 women who knew Kavanaugh during high school has been derided as meaningless, and it certainly does not disprove this incident. At the same time, one thing we have learned from the #MeToo experience is that predatory men tend not to misbehave a single time; they engage in patterns of abuse. It is reasonable to wonder: What else might be out there, and might be shaken loose by this account?
And it is also reasonable to worry about fairness to the nominee, and whether his reputation is being smeared on the basis of an anonymous — and vigorously refuted — allegation. Based on where we are right now, it would be unfair to block Kavanaugh’s nomination. (There are other grounds, I have suggested, for opposing him.)
But I suspect that this situation will not remain static. However much this woman wanted anonymity, forces have been unleashed that seem destined to conclude in her eventual unmasking. Here people — lawmakers, staffers and journalists — should ask themselves a difficult question: How does it respect women to disrespect their wishes about being dragged into the brutal public spotlight?
If this woman does not want to tell her story — if the cost of exposure seems too high — that needs, I think, to be the end of it, unsatisfying as that conclusion might be.
If she were to agree to come forward, the right course would be, first, for the FBI to interview both Kavanaugh and her about the allegations, as happened with Thomas and Hill. Then, the Senate Judiciary Committee can determine whether it makes sense to hear her account, and Kavanaugh’s, and relevant others on the record, under oath and preferably in public.
The temptation for Republicans will be to use their majority power to muscle through the confirmation. That would be a mistake, institutionally and even politically. Failing to conduct an adequate investigation would leave both the Senate and the Supreme Court — again — under a lingering cloud. Republican senators should consider: Given the gender gap they confront, do they really want to be in a position of explaining to female voters why they did not take allegations of sexual assault seriously?
Process — fair, due process — matters; it benefits both sides. The procedural deficiencies when it came to Thomas and Hill, including the failure to call corroborating witnesses, still rankle today. (Just ask Joe Biden.) Republicans will invoke the lateness of the hour. “I do not intend to allow Judge Kavanaugh’s confirmation to be stalled because of an 11th-hour accusation that Democrats did not see fit to raise for over a month,” Utah Sen. Orrin Hatch thundered.
But speed is not of the essence for a lifetime appointment this consequential. Getting at the truth, as best and imperfectly as it can be ascertained, is.
My guess is that an investigation would conclude with Kavanaugh’s confirmation, and that, as ugly as the episode might be, we would all be better off at this point — the new justice included — with the fullest possible airing.