Have we learned nothing since Thomas-Hill battle?
Hard cases make bad law, according to an old legal maxim. Hard cases make brutal Supreme Court confirmation fights, too.
The soap opera unfolding around Supreme Court nominee Brett Kavanaugh’s confirmation hearings offers an excellent example. The he-said-shesaid drama brings to mind another battle royal that consumed television viewers nationwide in 1991 when Anita Hill accused then-nominee Judge Clarence Thomas of sexual harassment.
Now it is Kavanaugh who faced a hearing on Monday to respond to allegations by Christine Blasey Ford that he sexually assaulted her at a house party when they were teenagers.
The two cases fall short of a perfect parallel. Hill, for example, alleged episodes of lewd talk over several years during which she worked for Thomas in two government departments.
Yet the contrast between the two episodes shows how much the Senate and the rest of us have learned about sexual harassment, an ancient social problem that still was a new political issue on Capitol Hill in the early 1990s.
It also shows how much credibility Congress and other institutions have lost in the past couple of decades amid rising populist anti-establishment anger. Capitol Hill’s culture of comity that enabled rival partisans to find common ground on divisive issues fell apart in the clashes between House Speaker Newt Gingrich’s Republicans and President Bill Clinton’s Democrats.
Thomas’ sexual harassment scandal would pale in comparison with Clinton’s Oval Office affair with an intern. The quest for common ground was elbowed out by a winner-take-all partisanship, culminating in the delay of a vote on Democratic Supreme Court nominee Merrick Garland until Obama’s term ran out.
Small wonder that Americans question the ability of today’s Senate to deal with a question as delicate as how much Kavanaugh or anyone else should be held accountable for allegations raised about their behavior in high school 36 years ago.
We’re not talking about a teen prank or “youthful indiscretion,” the traditional excuse among misbehaving politicians. Attempted rape is a felony.
Maybe President Trump had a point when he tweeted Friday that Ford, now a college professor, should have reported her assailant to the police. But under the circumstances, calling in the FBI to investigate as Ford has requested makes more sense.
Amid a mix of accusations and memories, as we saw in the Clarence Thomas hearings, Kavanaugh has a good chance of gaining the benefit of Senate doubts enough to be confirmed, as Thomas was.
Yet the charge of attempted rape is too serious to be casually swept aside. We have seen a degradation of character standards in the face of winnertake-all politics, especially in issues of sex.
Ultimately, the standards for judging Kavanaugh and other nominees to come will be hashed out in the political arena, as the Constitution suggests. Already, we have seen in the aftermath of Thomas-Hill a push led by women for more rights, respect and opportunities. Unlike the earlier confirmation fight, this is the era of the #MeToo movement and a Senate Judiciary Committee that includes women.
That’s progress. We need more of it. I’m not in Kavanaugh’s conservative camp, but I believe in fairness. The charges against him should be thoroughly investigated. Every reasonable effort should be made to see if Ford’s claims are credible.