The Corner

Law & the Courts

Empathy, Accuracy, and Credibility

Christine Blasey Ford testifies at a Senate Judiciary Committee hearing on Capitol Hill in Washington, D.C. September 27, 2018. (Melina Mara/Reuters)

It is considered taboo even to suggest that an emphatic Professor Ford at times was inexact and inconsistent in her prior written and current Senate testimonies.

But the result of her sometimes-moving account still remains that she seems to have little recollection of how her still-private therapist’s notes or versions of notes ended up in the hands of the Washington Post and were to be used as corroborating evidence — even though they at times seem to have contradicted elements of versions of her allegations.

Ford, unfortunately, seems to have little memory of how her original letter requesting anonymity surfaced in the media. Nor does anyone else in the small number who had access to it. Ford, apparently, has little recollection of an offer — widely reported in the media — from Senate members to fly out to California to alleviate her anxieties about flying. Strangely, she did not explain how such a fear of flying contradicted her own record of relatively recent and extensive flying both for business and leisure.

One wished that Ford could at last have named one witness who could corroborate her allegations that the 17-year-old Brett Kavanaugh assaulted her 36 years ago in a place where witnesses were apparently present, or at least produced convincing evidence that the testimonies of those alleged to be at the party who had no memory of her narratives were sorely mistaken.

Ford might have been deemed more credible had she just been able to locate the scene of the alleged assault, or to explain how and why the alleged gender and number of those at the scene of the alleged assault were not reported by her consistently, or to remember how she arrived and left the scene.

The assertion that Ford sought “medical treatment” after the assault would usually not be taken to suggest that 30 years after an alleged sexual assault one brings up the allegation for the first time during a marriage-counseling session.

The “process” of memorializing Ford’s testimony involved a strange inversion of constitutional norms: The idea of a statute of limitations is ossified; hearsay is legitimate testimony; inexact and contradictory recall is proof of trauma, and therefore of validity; the burden of proof is on the accused, not the accuser; detail and evidence are subordinated to assumed sincerity; proof that one later relates an allegation to another is considered proof that the assault actually occurred in the manner alleged; motive is largely irrelevant; the accuser establishes the guidelines of the state’s investigation of the allegations; and the individual allegation gains credence by cosmic resonance with all other such similar allegations.

Those assumptions played out as extensive examination of minute details of Kavanaugh’s teenage life with little commensurate inquiry into Ford’s. The premise was that victimizer Kavanaugh thought he had an entitlement to be on the Court, rather than the fact that victimized Ford had initiated the entire line of inquiry, whose aim was to establish that a teenage Kavanaugh 36 years ago was a sexual assaulter and foiled rapist, and therefore now unqualified to take Antony Kennedy’s vacant Supreme Court seat. All that meant that the accuser was exempt from providing substantiation at a level required from Kavanaugh. I don’t think the American people have yet evolved to accept such a line of reasoning or quite yet believe that the U.S. Senate is entirely free from the spirit of the Constitution when conducting confirmation hearings and investigations.

Finally, in a most non-empathetic fashion, Ford sought to refute the contradictory testimony of her close friend Leland Ingham Keyser (whose attorney had unequivocally stated, “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford”) — in a manner that had anyone employed the same trope against Ford herself, he would have shamed as a condescending slanderer.

Ford, albeit gently, sought to refute Keyser’s contradiction of her assault narrative by essentially claiming that Keyser was now ill and had needed help even to make a statement, and therefore apparently was non compos mentis: “Leland has significant health challenges and I’m happy that she’s focusing on herself and getting the health treatment that she needs, and she let me know that she needed her lawyer to take care of this for her and she texted me right afterward with an apology and good wishes and et cetera.” In other words, Keyser was supposedly not able to weigh in herself, according to Ford, due to alleged health issues. So she relied on her lawyer to report her testimony — but, according to Ford, Ford alone was privately assured that the ensuing official statement was apparently now inaccurate and therefore had earned Ford an rightful apology.

The end result? We have no confirmation of whether such a characterization is true; but the nation is to know, thanks to Ford’s quite brazen insinuation, that Keyser is either apparently too ill to be credible or being manipulated by her lawyer or refuting her own statement. A cynic might infer that Ford referenced her close friend, Keyser, in expectation of confirmation, and when confirmation did not follow, impugned the credibility of her friend. Had Keyser confirmed publicly Ford’s allegations, one might also cynically suspect that Keyser’s “health challenges” would not have been raised by Ford.

The lesson of the hearings transcends the Kavanaugh confirmation. We were presented with two radically different and now competing versions of American jurisprudence and due process, one traditional and constitutional, one fluid and revolutionary. It will be up to Americans, ultimately, to decide by which version they wish to conduct their lives.

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