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Christine Blasey Ford, Brett Kavanaugh and the Partisan War Over the Supreme Court

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WNYC studios is supported by lift committed to addressing climate change and building sustainable future. Since April lift has been offsetting carbon emissions to make all the rides around the globe carbon-neutral lift. It matters how you get there. This is the political scene, a weekly conversation with New Yorker writers and editors about politics. It's Friday, September, twenty. Eighth. I'm Dorothy, an executive editor of the New Yorker. Yesterday, Christine, Blasi Ford. The psychology professor who was accused supreme court nominee Brett Cavanaugh of sexually assaulting her when they were in high school spoke before the Senate Judiciary committee. I am here today, not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett cabin and I were in high school when she was asked to name the strongest memory. She had of the alleged incident. She recalled the display of male camaraderie between cavenaugh on his friend. Mark, judge indelible in the hippocampus is the laughter the LA, the uproarious laughter between the two and they're having fun at my expense. Cavanaugh testified in the afternoon opening with very long statement in which he furiously described Blasi Ford's allegations as a partisan attack motivated by revenge on behalf of the Clintons as he put it and millions of dollars and money from outside left wing opposition groups. This is a circus the consequences will extend long, pass my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country. Teeny, sue Gerson law professor at Harvard and a former prosecutor joins me to discuss what went wrong with the confirmation process and what Kavanagh's testimony might indicate about his performance as a supreme court. Justice, welcome genie, thank you. All right. Let's back up a little bit. The hearing yesterday wasn't a trial. It was. It was actually exactly the kind of grotesque political spectacle that everyone predicted it would be with supporters of Blasi Ford and supporters of Kavanagh using the testimony to justify their predispositions about the two. And it also confirmed what the public has long believed that are elective representatives are not doing their job. So members of the judiciary committee Republican and democrat complained that the process was unfair even disgraceful, but they design the process this. This is their job like that. Both. Sides were pointing fingers at the other side about the problems with the process that neither side was taking responsibility for the problems themselves. So each side really feels like the other side was in control of the key elements that have made this entire process, so unfair in their view. So how might have might they have done it? I think that when the accusations by Dr Ford came to the awareness of Senator Dianne Feinstein, I do think that she wasn't a hard spot because she had to keep it confidential. She understood that. But I also think that there are some great or duties that you have as a Senator on the judiciary committee to make sure that an allegation like this, if credible be explored in the proper ways. And I do not believe that there was no way. For this to be explored without revealing Dr Ford's identity. So I, I do think during that time that she held the letter confidential as she said there couldn't have been more done on the part of Democrats, certainly to get the ball rolling in terms of the allegations and to let the members of the committee in on what was happening. And I think that that might have ended up with a better process. I do not think that the Republicans have a good point that it is now too late for a federal investigation on by the FBI that was not a convincing argument that they made over over again. And then what about subpoenaing Mark? Judge his friend who was allegedly, asked the party and other people that Blasi Ford recalled being there there many ways that we could come to a clear sense of what happened. I think that's where you're getting into a very difficult tightrope between a court process where you would have all kinds of witnesses who were relevant and a confirmation hearing where it seems more justifiable to a lot of people to have the two main parties. The accuser in the accused. However, in this particular case, because the accusations centrally involved the presence of Mark judge that omission to subpoena him was really inexcusable. Even even many people who believe Blasi Ford is telling the truth, wonder how the Senator should be deciding in the absence of corroborating evidence. Well, I think that that is a an interesting question because of the history of rape law. It was in fact the case that in the old days you had to have corroborating. Evidence in order to convict someone of rape in a way that you did have to have for any other crimes in general? It was the rule that just the alleged victim's testimony would not be enough to convict a person of rape, and that was an exceptional role which meant that for other times it was perfectly fine to convict someone based on testimony that was admissible incredible enough that the jury, the fact finder could decide, people are convicted all the time based on testimony that is credible. That is evidence. So at the end of the day, you have to take all the evidence that's available and decide, and it is not is not a precise science, but it is the system that we have both in the courts and in proceeding like the one that we have witnessed. I'm curious as a former prosecutor. Well, I what to do think about whether she met the standard that you're. Discussing, I think the the credibility of Dr Ford was very high and based on her testimony. I think that a lot of people myself included could conclude that she was telling the truth that credibility assessment is not just about, are you predisposed to believe victims or not? That's not what credibility is about. Credibility is about an individualized assessment of somebody's testimony based on the content of that testimony, the consistency and things like demeanor, which is why the live hearing was so important for both senators and the American public. That demeanor is a really key piece in courts as well as in in a procedure like this. And what about his demeanor. While I was quite surprised by judge Kavanagh's demeanor, I have to admit because everything that I had come to expect from judge was that he was somebody who had freely cultivated a very even tempered manner and a presentation of judicial presentation. I think that it was very interesting to see that the presentation that he chose to give yesterday, both in his remarks and in his response to questioning was not that at all. It was very unjudicial times. It seemed like he was regressing to boyhood almost like he was seventeen years old, answering these questions and protesting too much. Yes, protesting to every question and really refusing to engage respectfully in a way that truly seemed out of character based on what we had seen. So. So far of his demeanor and all all that is known about him. So I, it was it was very surprising. And I think that there are two possible reads on this one is that this period has been extremely trying for him in his family, and it was very emotional and he really lost control. That was one possibility. The other possibility that it was a more strategic and calculated decision to present in that way because given where we were given where he thought the president was in where the Senate was and the credibility of Christine Blasi Ford's testimony. He thought his best shot was in fact to change persona and to present a much more raw, emotional and angry face, and somehow that would be more beneficial to him given the party. Jeez, who really need to stick behind Tim and Trump had pretty much demanded. He do exactly that and was thrilled by his performance this week on the New Yorker radio hour. I'll talk with Lisa Brennan jobs. She's the daughter of apple, founder, Steve Jobs, and she's writing her way out of her father's very long shadow. I knew I was writing a coming every story about a girl, but that it was going to be twisted into the story of a famous man. I felt like it was universal story. Lisa Brennan jobs in her memoir small fry on the New Yorker radio hour from WNYC studios. Listen wherever you get your podcast. Yes, to the extent that Trump was the audience that he was aiming for. I think he really succeeded. It was kind of astonishing. I thought it's the afternoon wore on and the focus in the room shifted from the totally incompatible testimony of the two witnesses to the war between the two political parties. And we saw Democrats, rebuking Republicans for refusing the FBI investigation Republican, scorning Democrats for creating what they saw a final attempt to smear Cavanaugh and then Lindsey, Graham, I wonder if you just talk for moment about the role he played where he began shouting himself and then it all became each Republican trying to one up the next on his support for Cavanaugh. I think Cavanaugh really set the stage for Senator Lindsey Graham to do what he did, but even if have had not done that, it is very possible that Lindsey Graham would have taken the bull by the horns. At that point. I think that it was a, it was a desperate strategy, but also a very brilliant strategy in. In that I was watching Fox News to see what they were saying. And I, I heard commentators on Fox News all, but admitting that this nomination was going to be finished. That is what was happening after Dr. Four testified. And so at that point, would you do when lots and lots of people are saying that they find her credible? I think that you've got to change the story and the story can't just be. She's not credible. It's got to be a different story, and he very effectively did that by changing the story to the unfairness of the process and also by changing the tenor of the hearing from one that was calmly politely and sensitively trying to probe whether something happened to one that was about grievance and about anger using very extreme terms like shameful and disgraceful. It just really is a it. You know both emotionally and. Intellectually was a very, very drastic change in Senator. Graham was the linchpin, our Capitol Hill correspondent. Oh, Seton, Navo pointed out. The Democrats failure to ask Cavanaugh the very questions. They were demanding. The FBI asked they had their moment and they didn't do it. So you know the allegations by the other two women, Deborah Ramirez, and Julie sweat, Nick, that just all went out the window. Well, again, I think they're possible reads on that one is that it was somewhat disingenuous that they really wanted answers to these questions, and that was revealed by their failure to ask those questions when they had the opportunity. But the other read is that in fact, it was a protest of the fact that there was no FBI investigation. So they did not want to give into the Republican narrative that, well, you have this opportunity right now to ask him those very questions at the FBI would've asked and the Democrats didn't want to. To give into that by saying, okay, we now have the opportunity to do exactly what the FBI should have done either way. It really was in some ways on fortunate that those questions did not get asked because it is very possible that they would have been effective in trying to get judge Cav not to really engage, but based on what we saw, it is also very possible that he would have evaded those questions and done the same thing. He did the rest of the hearing. Chevrolet senators on the committee were also on the committee during the Clarence Thomas confirmation hearing tonight eighteen ninety one including the chairman, Chuck Grassley, an Orrin Hatch, and pet Lahey democrat, all of whom voted to confirm Thomas. There was an interesting moment yesterday when Lahey addressed Grassley directly and said, you know, you and I were both here twenty seven years ago at that time, the Senate failed Anita hill. I said, I believed her, but I'm concerned that we're doing a lot less for these three women today. That my personal view, I think a lot has changed since nineteen ninety one. And this particular moment was a moment of recognition that not everybody who was there in nineteen Ninety-one would feel the same way if the hill testimony were being given today, I think that it is true that there was less being done in terms of the investigation of the claims that are leveled against judge Cavanaugh than than we had for the claims against Justice Thomas, and mainly that has to do with the lack of an outside investigation by an impartial party such as the FBI. On the other hand, there have been a lot more allegations here in this scenario, and there is kind of this circus like environment where it feels like it's very hard to actually get some purchase on an order. Early way of doing it without letting the entire spin out of control. So I have some sympathy for the idea of trying to limit the fear of what the committee was trying to consider delay. He also said, bravery is contagious indeed the driving force behind the metoo movement. But as we saw throughout the afternoon, it bluster swagger, dishonesty, cowardice obstruction, all of that was on display. And so I guess the question is now we're taping this at eleven thirty in the morning, so what can be done now in legal terms? Is it too late to lodge a protest? Yeah. This whole thing is quite a disaster for anyone who would like to take seriously the legitimacy, the dignity and even the majesty of our courts and particularly the supreme court. I am a law. Professor, I teach students every day. I'm going to teach constitutional law at one o'clock today while this is going on and it, it really calls into question the enterprise that we are engaged in. When we look at the role, the supreme court in American society. And when we see that this is the way in which members of that court are selected. I would. I would like to see is an honest reckon hang with all of the issues that we've had to deal with during this confirmation fight and to try to not let them go the same way next time. If there is an accusation which surely in the future, there will be that there should be a process decided in advance that we know that we can count on. That's a really important part of what makes our society stable. And that is precisely what is at stake and endanger today for for a lot of people, it may be just about sexual assault. It may be just about Roe versus Wade, abortion. But really the overarching issue is about the stability of the rule of law, and we can't have that without legitimacy of our institutions, the supreme court in the Senate being to import. At once. Thank you so much, Jenny. Thank you. Jeannie Suk. Gerson is a law professor at Harvard, a regular contributor to New Yorker dot com. And the author of a memoir a light inside an odyssey of art life and law. 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