A Balanced View

I've shared the writings of a good friend and Episcopal Priest on other occasions and what we've witnessed in the last few weeks in the Senate seems to call for it again.  He is a wise man who always causes me to think about important subjects.  As usual, his writing is reflective of my views.  It's not an easy subject and I think he treats it fairly.  The only way I would differ with him is that I believe that beyond all of the issues he discusses, the fundamental truth is that the Dems are opposing Kavanaugh based on his being nominated by Trump.  Hatred of Trump is the underlying theme and cause of all that has happened.  They made up their minds the day he was announced and there is nothing that will change them.  So here is his article.

She Said…He Said:

The Quest for Truth and the Pursuit of Justice

This is a controversial article because it deals with a controversial topic: the recent Senate Judiciary stand-off between Dr. Christine Blasey Ford and Judge Brett Kavanaugh. I have thought long and hard on whether to write this article because I don’t want to offend my friends, some of whom are males who attended a prep school like Judge Kavanaugh, while others are females who have been the victims of sexual, physical or verbal abuse, mostly from their partners but in some cases not. I, myself, have gone to a Catholic prep school, much like Georgetown Prep where Judge Kavanaugh was a student. I am fully aware of the drinking that occurs among the students in these all-male bastions of patriarchy. Perhaps for that reason, St. Francis Prep, where I went to school, is now co-ed and a much healthier place. 

Whatever your opinion of Dr. Ford or Judge Kavanaugh, I hope you will agree with me that their testimonies was one of the most heart-rending spectacles in American politics. Two people, each apparently sincere and obviously feeling deep pain presented polar-opposite testimonies before the Judiciary Committee. Dr. Ford said that she was 100% certain that 17-year-old Brett Kavanaugh attempted to rape her when she was 15-years-old. Judge Kavanaugh was equally insistent that no such event ever happened. He categorically denied, under oath and penalty of perjury, that he had ever sexually assaulted Dr. Ford or any other woman.

One needs the Wisdom of Solomon to discern which of them is telling the truth. But this does not mean that the other is necessarily a liar. It could be that Judge Kavanaugh, who has admitted drinking and enjoying beer, sometimes in great quantities, was so drunk that he has no recollection of the incident. Or, it could be that Dr. Ford is so mentally and emotionally fragile (she had a very troubled past) that with the help of psychological counseling she has come to believe her assailant was Kavanaugh, even if that is not the case. These scenarios are only speculation, I know, but my point is that you need not believe one is lying for the other to be telling the truth. 

Moreover, both Judge Kavanaugh and Dr. Ford appear to be flawed individuals – as we all are. By his own admission, Judge Kavanaugh drank, sometimes quite heavily, at social gatherings. And although up to last Thursday he appeared to be a mild-mannered and gentle person with a formidable intellect, we saw a different side of him at the hearing – angry, petulant, indignant and brimming with fury against his detractors. The New Yorker, perhaps unfairly, referred to him as having an “adolescent aggression of conservative masculinity.” However, in all fairness to Judge Kavanaugh, if your reputation was attacked unjustly and detractors tried to destroy you with false, horrific claims, would you not be angry, even furious? His reaction to the allegations is perfectly understandable.  

Then there is the testimony of Dr. Ford. She claimed definitely that Brett Kavanaugh assaulted her, but she doesn’t know when, where, or who took her to the house, or picked her up (she was 15 and could not drive). She has no facts, no corroboration, no medical report, no police report, and no psychological records detailing her memories (she has not released them). There is nothing but a claim from a perfectly nice, sympathetic woman with a bad memory and a story contradicted by all her own witnesses, including her best friend. In fact, there is no evidence that she was at the party at all, much less that Kavanaugh was there or that anything happened between Kavanaugh and her.

We all hope the FBI investigation will resolve these discrepancies and get to the truth of the matter, but I doubt it. Unless there is some kind of corroboration for Dr. Ford’s testimony, we are going to be left where we were last Thursday – an allegation with no evidence. It is simply her word – 36 years after the fact. Judge Kavanaugh has at least produced a calendar that shows his schedule and whereabouts throughout the summer of 1982, but that is not conclusive evidence. He also can claim to have had six FBI background checks and the highest security clearance in the country. During his time in the Bush White House he had access to the nuclear codes. So, what will the FBI discover in interviewing relevant witnesses, all of whom have already given sworn statements under penalty of perjury? My guess is nothing that we don’t know already. 

I do hope the FBI investigates the claims of Deborah Ramirez (reported in The New Yorker) and Julie Swetnick who is the client of notorious porn lawyer Michael Avenatti. Their allegations seem incredible, but both women should be heard. If either of their claims is corroborated, that would deal a fatal blow to Judge Kavanaugh ever becoming a Supreme Court Justice. On the other hand, at this juncture, Judge Kavanaugh has extensive support from female friends and colleagues dating back to his time at Georgetown Prep to his time now on the federal bench. Hundreds of women claim he has treated them with the utmost respect and courtesy, and that includes his many female law clerks. If there had been some allegation against Judge Kanavaugh as an adult, or during his time in either the Bush White House or on the Appellate Court, the charges against him now would have more weight. 

By all accounts Dr. Ford has been a competent and respected professor at both Palo Alto College and Stanford University. If Dr. Ford would release her medical and psychological records, that may shed light on how she is so certain that Judge Kavanaugh assaulted her. For example, if she came to certainty through hypnosis, drugs or auto-suggestion, that may call into question the accuracy of her claim. As of now, her records have not been released.

So how do we discern who is telling the truth in this matter? I suppose if you are a political progressive or a radical feminist, you instinctively side with Dr. Ford. As Senator Hirono of Hawaii said, “Women should be believed” and men “should shut up.” On the other hand, if you are a conservative, you instinctively side with Judge Kavanaugh, see deep flaws and inconsistencies in Dr. Ford’s testimony, and view what is happening to Judge Kavanaugh as similar to what happened to Robert Bork and Clarence Thomas - a partisan last-minute attempt to prevent a brilliant conservative jurist from having a seat on the Supreme Court. If Judge Kavanaugh were a liberal committed to upholding Roe v. Wade, none of this would probably be happening. There would be no high priced lawyers representing Dr. Ford pro bono, including paying for her lie detector test. Yes, I know, this is a cynical view, but in the ruthless highly partisan world of Washington, D.C., I suspect it may be true. 

If you are like me, you are torn between the heart and the head. My heart is with Dr. Ford but my head is with Judge Kavanaugh – at least until there is corroborating evidence for Dr. Ford’s testimony. I am fully aware that people reading my blog are on both sides of this issue: Who to believe? I can’t offer a full-proof formula to answer the question, but let me make a few salient points for reflection that move us beyond simplistic slogans and mindless platitudes.

First, there have been other times in the history of the Senate when witnesses have given sworn testimony contrary to one another. The most notable example was in 1948 when Whittaker Chambers testified against Alger Hiss, a high ranking State Department official with impeccable academic and professional credentials. Chambers, an unassuming and disheveled writer, claimed that Hiss was a member of a Communist cell back in the 1930s. Hiss denied it categorically, but eventually the evidence showed that Chambers was right and Hiss was lying. In January, 1950 Hiss was found guilty of perjury and sentenced to five years in prison. To his dying day, Hiss claimed his innocence, but the evidence against him was overwhelming. Every attempt to exonerate Hiss has concluded that he was indeed guilty. 

In the Hiss-Chambers testimonies, investigators were able to discover evidence that corroborated Chambers’ testimony. Can the FBI discover corroborating evidence in the Ford-Kavanaugh matter? I doubt it. Unless there are credible witnesses who come forward, or some corroborating evidence is found from Ramirez or Swetnick, we will never be sure who is telling the truth.

Second, even in sex crimes, there is a presumption of innocence. Although a Senate hearing is not a criminal trial, the presumption of innocence is at the heart of American jurisprudence – as is due process, fundamental fairness and the right of an accused to confront the accuser, with the burden being on the accuser to prove the allegation and not the accused to refute it. 

We need to keep in mind that at the time of the writing of the American Constitution, the Spanish Inquisition was still in effect, and thousands of innocent Spaniards suffered horrific tortures and even death because of their religious and political beliefs. Following in the path of the medieval Inquisition, the Spanish Inquisition had no presumption of innocence. A person was deemed guilty until proven innocent. The allegation was enough to convict the person of a crime. It was the burden of the defendant to disprove the charges rather than for the prosecutor to prove anything. The accused always spoke first, followed by the accuser. The founders of our country wanted no part of that kind of judicial system. As I learned in my criminal law class, Americans believe it is better for 100 guilty persons to go free than for one innocent person to go to jail.

Moreover, the presumption of innocence does not only pertain to criminal matters. It pertains in civil law as well. You cannot, for example, fire an employee based on a mere allegation alone. There needs to be some corroborating evidence to back-up the allegation. I would argue the same is true even in government appointments, including to the Supreme Court. While you do not need proof “beyond a reasonable doubt” as in criminal cases, you do need at least “a clear preponderance of the evidence.” In other words, it has to be much more likely than not that the allegation is true.

Third, I must respectfully disagree with Senator Hirono that “women are to be believed” and men are to “shut-up.” Neither women nor men are to be believed – only the evidence is to be believed. There are simply too many instances in American history of women making false charges against innocent people who, as a result, suffered prison and even death.

Think of the Salem Witch Trials between February 1692 and May 1693. The trials were started after people had been accused of witchcraft primarily by teenage girls such as Elizabeth Hubbard, 17, as well as several other girls who were younger. More than 200 people were accused, nineteen of whom were found guilty and executed by hanging (fourteen women and five men). One other man was pressed to death for refusing to plead, and at least five people died in jail. 

Or think of all the black men who have gone to their deaths, some by formal execution and others by lynching, because white southern women claimed falsely they were raped or sexually assaulted. There are hundreds of black men in America who have suffered the ultimate consequence by the false testimony of white women. 

I recommend that everyone see the movie Marshall, a 2017 film about the early years of Thurgood Marshall, the black civil rights attorney who would go to become the first black man on the Supreme Court. The film focuses on one of Marshall’s first cases of his career, State of Connecticut v. Spell. 

In 1940, Thurgood Marshall, a NAACP lawyer, went to Bridgeport, Connecticut to defend Joseph Spell, a black chauffeur accused of the rape of his white employer, Eleanor Strubing. Sam Friedman, an insurance lawyer, was forced to become Spell’s lead counsel because Marshall was not a member of the Connecticut Bar. The two of them had the formidable task of defending Spell against Strubing’s allegation that he tied her up in the back seat of her car after raping her and then throwing her off a bridge. Thanks to brilliant lawyering, the charges were proven false and Spell was found not guilty. 

I suppose America is filled with those types of stories of black men getting lynched for having sex with white women. Think of Harper Lee’s To Kill a Mockingbird, for example, where Atticus Finch defends Tom Robinson, a black man who has been accused of raping a young white woman. Atticus establishes that the accusers – the woman and her father – are lying, but Tom is still convicted by the all-white jury.  Sometimes justice is not done even when the evidence screams for it.  

None of this is to say that we shouldn’t support the women who have been victims of rape or sexual abuse. Of course, we should – and we should thank the “#Me Too” movement for calling our attention to widespread sexual abuse in our culture, from media moguls, TV personalities, movie stars, business executives, and people in every profession and occupation. There has been enormous injustice against women, and it is time to make things right. But making things right for women does not mean making things wrong for men. We should not believe women because they are women. We should believe them because of the evidence. It is the evidence that convicts, not the allegation. To do otherwise would be a terrible injustice.   

Fourth, people accused of sexual offenses are not always guilty. This seems obvious by what I just wrote about black men being lynched for having sex with white women. But sadly, we are living in a time when we no longer want to give people the presumption of innocence, even when the evidence is flimsy or unsubstantiated. 

The perfect example of hasty judgment is the case of Cardinal Joseph Bernardin, Roman Catholic Archbishop of Chicago from 1982 to 1996. Cardinal Bernardin was one of the wisest and most beloved religious figures in the United States who taught a “consistent ethic of life” from womb to tomb – an ethic that appealed to both liberals and conservatives. And yet, Bernardin was accused of sexual misconduct in the late 1980s. Former seminarian Stephen Cook claimed to have been abused by Bernardin in the 1970s. Cook was articulate, persuasive and believable in his certainty that Bernardin was an abuser. Bernardin denied the allegations, even as the press had already convicted him. Fortunately, Cook later admitted that his memories, which had emerged while he was under hypnosis, were inaccurate. Cook later said that he relied on people who told him things that were not true, and asserted that he is now “absolutely convinced of Bernardin’s innocence.”

Oliver Cromwell, writing to the Scottish Assembly declared, “I beseech thee, from the bowels of Christ, think that ye could be wrong.” We need that kind of humility today. We are too quick to condemn, too hasty to judge, too impatient to listen, probe and discern the truth. From my experience, truth is rarely black or white, but much more highly nuanced, requiring an incisive mind and critical thought. Sadly, too few have those qualities.    

Fifth, what is happening in the Senate confirmation process today was predicted back in 1959 by Alan Drury is his political novel Advise and Consent. The novel was made into a film starring Charles Laughton, Walter Pidgeon, Henry Fonda and other notables. It is the best political novel I have ever read, and I commend either the book or the film to you because it shows how ruthless and vile the political confirmation process can become in America. 

In Drury’s novel, it is not a Supreme Court Justice but a Secretary of State nomination that causes contentious political maneuverings. The President nominates prominent liberal Robert Leffingwell as his next Secretary of State, but the Senate must “advise and consent” to it. Leffingwell is viewed by conservatives as too liberal, an appeaser, and too friendly to the Soviets. He, in fact, did have a communist past which he has tried to conceal. But Leffingwell has his supporters, the most zealous being Senator Fred Van Ackerman, who is willing to do anything to insure that Leffingwell is confirmed by the Senate. He and his cronies blackmail Senator Brigham Anderson from Utah who had a homosexual affair when he was in the Army. They threaten to make the news public unless Senator Anderson votes for Leffingwell. Devastated and depressed by the revelation of his affair, the Senator commits suicide. Anderson’s death and the exposure of the truth about Leffingwell’s lies regarding his communist past set in motion a chain reaction that ultimately rejects Leffingwell as Secretary of State. 

Granted, there have been no suicides yet in the Senate, or with Judge Kavanaugh, or Dr. Ford. But I wonder… are we getting to the point where the politics of personal destruction and a “means justify the ends” mentality are corroding our government to the point that good people and their families are now expendable? Does anyone really care about Dr. Ford or Judge Kavenaugh, or is it only political power at stake? Do we now destroy our opponents – smear and tarnish their reputations, or use them as pawns in a political chess game – in order to further an agenda? 

Frankly, I am appalled by the state of American politics today. It is one thing to vote for or against someone based on their political or legal philosophy. It is quite another to destroy a person, to tear them down and tear them to pieces, in order to win. Have we no shame? No conscience? No moral compass? I hope I am wrong, but I fear I am right. Pray for America.