Have we learned anything since Hill and Thomas?
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-she-said drama brings to mind another battle royal that consumed television viewers nationwide in 1991 when Anita Hill accused thennominee Clarence Thomas of sexual harassment.
Nowit is Kavanaugh who faces a hearing to respond to allegations by Christine Blasey Ford that he sexually assaulted her at a house party when theywere 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 howmuch the Senate and the rest of us have learned about sexual harassment, an ancient social problem that stillwas a new political issue on Capitol Hill in the early 1990s.
It also shows howmuch credibilityCongress 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 SpeakerNewt Gingrich’s Republicans and President Bill Clinton’s Democrats.
Thomas’ sexual harassment scandalwould pale in comparisonwith Clinton’sOvalOffice affair with an intern. The quest for common groundwas elbowed out by a winner-take-all partisanship, culminating in the 2016 delay of a vote on Democratic Supreme Court nomineeMerrick Garland until President Barack Obama’s term in office ran out.
Suddenly covering the cynical politics of the Senate, traditionally called “theworld’s greatest deliberative body,” was reminding me ofmy earlier life of covering politics inmy beloved Chicago CityHall, where getting things done can depend on having the right precinct captain.
Smallwonder that Americans question the ability of today’s Senate to deal with a question as delicate as howmuch Kavanaugh or anyone else should be held accountable for allegations raised about their alleged behavior in high school 36 years ago.
We’re not talking about a teen prank or “youthful indiscretion,” the traditional excuse among misbehaving politicians. At- tempted rape is a felony. InMaryland, where the incident allegedly took place in suburbanMontgomery County, outsideWashington, D.C., there is no statute of limitations for rape or attempted rape.
Maybe President Donald Trump has a point when he tweeted Friday that Ford, nowa 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. So far, the wind appears to be at Kavanaugh’s back unless new dramatic witnesses or evidence turn up. Amid a mix of accusations and memories, Kavanaugh has a good chance of gaining enough benefit of Senate doubts to be confirmed, as Thomaswas in 1991.
Yet the charge of attempted rape is too serious to be swept aside. We have seen a degradation of character standards in the face of winner-take-all politics, especially in issues of sex— ranging politically fromPresident Clinton on the left to President Trump on the right.
Ultimately the standards for judgingKavanaugh and other nominees to come will be hashed out in the political arena, as the Constitution suggests. Already we have seen in the years since Thomas-Hill a push led bywomen formore rights, respect and opportunities. Unlike the earlier confirmation fight, this is the era of the #MeToomovement and a Senate Judiciary Committee that includeswomen.
That’s progress. We need more of it. I’m not inKavanaugh’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. If persuasive witnesses or evidence do not turn up, he should be confirmed. And the politics of the future Supreme Court should be decided, as I expect they will be, at the ballot box.
Clarence Page, a member of the Tribune Editorial Board, blogs at www.chicagotribune.com/ pagespage.