I have built my professional career on words, and the capacity of words to convey information and argument. But Thursday’s session reaffirmed the unrivaled and compelling power of personal testimony, not only in providing information but also in assessing competing narratives.
Long before the advent of livestreamed hearings, the framers of the constitution embedded this crucial insight into the Sixth Amendment guarantee that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
And while a confirmation hearing is not a criminal proceeding, and it would be wrong to import some of the other essential elements of criminal process into the confirmation, the fundamental wisdom of the Constitution’s approach was on display Thursday. Supreme Court nominee Brett M. Kavanaugh was confronted with the witness against him — one of them, anyway — and it was devastating.
Ford was not a perfect witness, in the sense that her memory, and therefore her testimony, has significant gaps. (Whose house did the party take place at? How did she get there and back home?)
Still, she came off as both unshakable in her conviction that it was Kavanaugh who assaulted her (“100 percent” certain, she said) and anything but eager to thrust herself into the political maelstrom that has ensued. While President Trump railed against Democrats for orchestrating a “big fat con job” against Kavanaugh, Ford did not seem either conner or conned. To listen to her account of that summer night in Bethesda was nothing short of heartbreaking.
More than a quarter-century ago, Anita Hill persuaded those who were willing to listen with her law professor seriousness and her natural reserve. Ford’s demeanor was different, more informal, and for all her girlhood in the capital she seemed far more naive and unschooled in the ways of politics than Hill.
Part of the power of Ford’s testimony came in the disconcerting blend she presented: a surprisingly girlish voice that evoked the 15-year-old teenager trying to avoid being seen with her mom in the Potomac Village Safeway, melded with the scientific language of cognitive psychology, about “the level of norepinephrine and the epinephrine in the brain . . . and so the trauma-related experience is locked there whereas other details kind of drift.”
Partly it was the stricken look on Ford’s face, the terror evident even before she spoke her first word. Partly it was her winsome helpfulness. “Does that work for you?” she asked Committee Chair Charles E. Grassley (R-Iowa), when he suggested a break at 12:40 p.m. “I’m used to being collegial.”
“I would like to be more helpful about the date,” Ford told Rachel Mitchell, the Arizona sex-crimes prosecutor questioning her on behalf of Senate Republicans.
Mitchell’s effectiveness was undermined by the herky-jerky nature of the proceedings, shifting in five-minute increments between her courtroom style questioning on behalf of Republicans and testimonials to Ford’s bravery by Democratic senators. Mitchell nibbled at the edges of Ford’s story, with questions that suggested Ford had overstated her fear of flying to underscore the trauma of the alleged assault and that highlighted discrepancies between Ford’s account and her therapist’s notes.
But the questioning was mild by comparison with the skeptical interrogation of Hill 27 years ago, with suggestions that she was fantasizing and assertions she had committed perjury.
Back then senators were confronted between the quiet insistence of Hill’s account and the ferocious, angry denial from then-Supreme Court nominee Clarence Thomas, who famously denounced the “high-tech lynching.”
I had expected Kavanaugh’s response to be more measured, more respectful. But he came out swinging — at the confirmation process in general and at Democrats in particular in a way that managed to make Thomas look timid by comparison.
The confirmation process had turned into a “national disgrace,” Kavanaugh lectured senators, departing from his more restrained prepared remarks. “You have replaced advice and consent with search and destroy.” He painted himself as the victim of an “orchestrated political hit” fueled, among other things, by desire for “revenge on behalf of the Clintons,” whom Kavanaugh had investigated decades earlier.
As with Thomas all those years ago, Kavanaugh’s denials were categorical, his anger volcanic. To watch both witnesses was to be left almost shell-shocked.
But it was also to be left with this fundamental question: One witness, Ford, wanted to see additional investigation to help reconcile the conflicting accounts. The other, Kavanaugh, repeatedly refused the invitation to ask for the FBI to reopen its probe. That, too, is an indelible takeaway from a searing, disturbing day.