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The American Rule of Law Has Failed Women

The allegations against Brett Kavanaugh highlight the lack of justice in society for women wronged by men.

Brett Kavanaugh is sworn in before the Senate Judiciary Committee on September 4. (Getty)

For the second time in almost 30 years, the Senate Judiciary Committee is publicly weighing sexual-misconduct claims made against a Supreme Court nominee. Iowa Senator Chuck Grassley announced on Monday that the committee he chairs will hear testimony from both Brett Kavanaugh, a federal appellate judge in D.C., and Christine Blasey Ford, a psychology professor in California who says he sexually assaulted her at a house party during high school in the early 1980s.

Many women have stories similar to Blasey’s, but only one knows what she is currently going through. Anita Hill faced a similar gauntlet in 1991 when she told the committee that Clarence Thomas, her former boss and a pending Supreme Court nominee, had sexually harassed her on multiple occasions. He denied any allegations of wrongdoing and was narrowly confirmed to the court. He serves there to this day.

In a New York Times op-ed on Tuesday, Hill offered some advice to senators as they prepare for next Monday’s hearing. She recommended that senators avoid “pitting the public interest in confronting sexual harassment against the need for a fair confirmation hearing.” She urged them to respect Blasey by referring to her by name instead of vague references like “Judge Kavanaugh’s accuser,” and to appoint a neutral, experienced investigative body to weigh the allegations on the committee’s behalf. She also emphasized that the committee should proceed cautiously, since haste would “signal that sexual assault accusations are not important.”

“A fair, neutral and well-thought-out course is the only way to approach Dr. Blasey and Judge Kavanaugh’s upcoming testimony,” Hill wrote. “The details of what that process would look like should be guided by experts who have devoted their careers to understanding sexual violence. The job of the Senate Judiciary Committee is to serve as fact-finders, to better serve the American public, and the weight of the government should not be used to destroy the lives of witnesses who are called to testify.”

This is a task that may be beyond the committee’s capacity. Some key senators have already expressed doubt about Blasey’s account and questioned its relevance. Utah’s Orrin Hatch told a reporter that even if she was telling the truth, “I think it would be hard for senators not to consider who he is today.” Grassley told reporters, “We’re talking about—you understand we’re talking about 35 years ago. I’d hate to ask—have somebody ask me what I did 35 years ago.” South Carolina’s Lindsey Graham likened the revelation to “a drive-by shooting” against Kavanaugh. “I’ll listen to the lady, but we’re going to bring this to a close,” he added.

That mood pervaded Republicans’ response this week. On Tuesday night, Blasey’s legal representative sent a letter to the committee asking lawmakers to delay the hearing until the FBI conducts an investigation into her allegation. “A full investigation by law enforcement officials will ensure that the crucial facts and witnesses in this matter are assessed in a non-partisan manner, and that the committee is fully informed before conducting any hearing or making any decision,” the letter said. Grassley responded to the letter by not really responding to it at all, pointedly noting in a statement that her invitation to appear before the committee on Monday still stands.

It may be tempting to turn to another institution in American society that could properly weigh the situation. But one of the persistent lessons of the past year is that no such institution exists. The rot runs deep in American society: in movie studios and in media empires, in television networks and major publications, in churches large and small, in courthouses and statehouses, in prosecutors’ offices and prisons, in the military, and universities, and Olympic teams, and Congress, and the White House. If there is a nerve center in American society where persistent, gendered abuses of power have not been found, it may only be because nobody’s thoroughly scrutinized it.

The inescapable conclusion is that the #MeToo movement represents, in practical terms, a crisis for the American rule of law. Countless women and some men have come forward over the past year to describe what are essentially criminal acts committed against them. With rare exceptions, there are typically no formal indictments against those they name, no prosecutions or trials, no verdicts or sentences. Organized society hinges on the premise that there can be restitution for harms done and consequences for those who inflicted them. The consequences felt by those swept up in the Weinstein effect, however, often appear to be rare and fleeting. (Weinstein himself is among the few facing criminal charges.)

Even those who endure workplace sexual harassment and other misdeeds that aren’t quite criminal sometimes have little recourse. Human-resource departments have the paradoxical responsibility of both protecting workers and limiting their company’s legal liability, and the latter often triumphs over the former. The Supreme Court dealt workers a harsh blow earlier this year in Epic Systems Corp. v. Lewis, upholding the use of forced-arbitration clauses in employment contracts to foil class-action lawsuits like those used to challenge systemic sexual harassment. The impact is felt at all levels of the workforce: Hundreds of McDonald’s workers went on strike this week to protest the company’s failure to address harassment in its franchises.

It’s hard to imagine that an epidemic of arsons or car thefts or letter bombs would be treated like this. And it’s no great leap to conclude that a breakdown in a society’s response leads to a loss of confidence in the public institutions that are supposed to support them. Look no further than the relationship between residents of major cities and police departments that fail to solve large numbers of homicides. “If these cases go unsolved, it has the potential to send the message to our community that we don’t care,” an Oakland police captain told The Washington Post earlier this year.

We are already seeing similar signs. Last week, when Blasey’s accusations were known but her identity was not, Slate’s Dahlia Lithwick noted that it was unsurprising that she wanted to remain anonymous. “I would have told her that neither politics nor journalism are institutions that can evaluate and adjudicate facts about systems in which powerful men use their power to harm women,” Lithwick wrote. “I would have told her that she would be risking considerable peril to her personal reputation, even as she would be lauded as a hero. I would have also told her that powerful men have about a three-month rehabilitation period through which they must live, after which they can be swept up once again in the slipstream of their own fame and success.”

This is what makes the allegations against Kavanaugh so resonant: the idea, perhaps a naive one, that the Supreme Court is supposed to be different. The justices, at least in the ideal, are supposed to represent the American rule of law. The president controls the bureaucracy and the military; Congress controls the budget and impeachment. All that the high court can draw upon is the public’s faith in its integrity. And now the Senate faces the question of whether or not to elevate a new justice whose alleged behavior represents that rule of law’s negation.

Will senators be able to properly weigh this? So far, it’s doubtful. Kavanaugh’s confirmation would markedly shift the court’s ideological balance to the right. As a result, the GOP has generally shown more interest in placing him on the court than in properly vetting his record, even before he was accused of sexual assault. Democrats have performed little better. Kavanaugh’s evasiveness during the hearing never quite reached the threshold of committing perjury, despite their claims. And Democratic senators squandered some of their credibility with insinuations that he discussed the Russia investigation with a Trump-linked legal firm or racked up gambling debts in New Jersey that ultimately went unproven.

Those failings have no bearing on the veracity of Blasey’s story, of course. The would-be justice has consistently denied that anything happened between him and Blasey. “This is a completely false allegation,” he said in a statement on Monday. “I have never done anything like what the accuser describes—to her or to anyone. Because this never happened, I had no idea who was making this accusation until she identified herself yesterday.” Kavanaugh even reportedly suggested in private conversations with Republican senators that it may be a case of mistaken identity.

Some of his defenders, however, are still going out of their way not only to dispute the allegations, but to minimize their significance if they are true. Conservative legal activist Carrie Severino suggested on CNN that what Blasey described was a range of acts that stretched “from boorishness to rough horseplay to actual attempted rape.” Writer Rod Dreher opined that Kavanaugh’s “loutish drunken behavior” offered no insights into his current character, adding that it was a “terrible standard to establish in public life.” Bari Weiss, a New York Times opinion editor, said in an MSNBC interview that she believed Blasey, but added, “By all accounts, other than this instance, Brett Kavanaugh has a reputation as being a prince of a man, frankly, other than this.”

It looks like the Senate Judiciary Committee’s flaws aren’t unique to it after all. Maybe that means it’s not necessarily the committee, or any other institution, that’s truly the problem. Maybe it’s just the people and the culture that occupy it.