Kavanaugh allegations raises ethical questions of justice

Woman claims that US supreme court nominee assaulted her 36 years ago

Judge Brett Kavanaugh, president Donald Trump’s nominee for the Supreme Court. Photograph: Erin Schaff/The New York Times
Judge Brett Kavanaugh, president Donald Trump’s nominee for the Supreme Court. Photograph: Erin Schaff/The New York Times

The controversy over US supreme court nominee Brett Kavanaugh has gripped America since Christine Blasey Ford identified herself as the woman behind accusations against the 53-year-old judge on Sunday.

Her claim that Kavanaugh assaulted her in a bedroom at a high school party in Washington DC more than three decades ago has been strenuously denied by Kavanaugh, who was nominated to the court by US president Donald Trump in July.

Blasey Ford effectively ruled out appearing at a special Senate hearing next Monday, where both she and Kavanaugh were called to testify before the judiciary committee.

Her demand that an FBI investigation happen first leaves the status of Monday's hearing uncertain, though committee chairman Chuck Grassley has indicated that it will push forward with Kavanaugh's nomination if his accuser is not willing to testify.

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Some legal experts argue that she has a strong case. Allegations of sexual assault are often historical. The accuser took a polygraph administered by a former FBI agent. There are psychologist notes from 2012 documenting her account of the attack.

Other witnesses who attended the party at which she says the attack happened could be called on to testify. (Among the arguments against Kavanaugh is Senator Orrin Hatch's claim that he told him he wasn't at that party – an unusual admission given that there have been no details of when or where the party took place. Hatch has subsequently sought to clarify his remarks.)

Ethical question

But even if the alleged assault could be legitimately investigated, the ethical question riveting America is whether someone should be held accountable for their actions while they were a teenager.

Even in the #MeToo era, many Americans believe that incriminating someone for an alleged act that took place 36 years ago is unfair. Others believe that it should at least be investigated, especially given that appointments to the US supreme court are for life, making the role one of the most influential in the United States.

The crisis has triggered memories of the Anita Hill controversy 27 years ago. Hill accused justice Clarence Thomas of sexual harassment on the eve of his confirmation as a supreme court judge. Famously she was questioned by an all-male judiciary committee for hours in ugly exchanges, and ultimately Thomas was confirmed.

Joe Biden was then chair of the committee. Though he did not vote for Thomas he was accused of not allowing some potential witnesses to come forward. He later said that he owed Ms Hill an apology. Questioned about the hearing at an event at the Irish Ambassador's residence this week in Washington, Biden said that claims by women of sexual assault should be presumed to be true.

The Anita Hill controversy prompted the “Year of the Women” when dozens of women ran for elected office.

Tread carefully

These political consequences are evidently weighing on minds in Washington. Republicans have tread carefully since the Kavanaugh allegations erupted at the weekend. Significantly White House aide Kellyanne Conway said that Blasey Ford should be heard, even as she criticised Democrats for releasing information they had relating to an anonymous allegation until the 11th hour.

Even Trump was unusually constrained in his language, though he did appear to side with Kavanaugh on his way to North Carolina on Wednesday by saying it was “very hard for me to imagine anything happened” between the two.

With the midterm elections just seven weeks away, Republicans are wary of alienating female voters in what is expected to be a record year for female candidates and voters.

Democrats meanwhile will be hoping that their female vote base will be energised. They may be thwarted in their ultimate aim to block Trump’s second supreme court nomination, but they will be hoping that this latest controversy will help deliver them control of the House of Representatives and even the Senate when Americans vote on November 6th.