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Why Kavanaugh Should Welcome an FBI Investigation

A legal scholar argues the judge's credibility is lower than Christine Blasey Ford's—and that's exactly why he'd be wise to embrace an independent evaluation of the assault allegation.
Brett Kavanaugh listens to opening statements during his Supreme Court confirmation hearing on September 4th, 2018, in Washington, D.C.

Judge Brett Kavanaugh listens to opening statements during his Supreme Court confirmation hearing on September 4th, 2018, in Washington, D.C.

On Sunday, South Carolina Senator Lindsey Graham essentially said he planned to confirm Judge Brett Kavanaugh to the Supreme Court no matter what revelations come from Christine Blasey Ford's testimony before the Senate Judiciary Committee. Sure, Graham will listen to her formally accuse the judge of sexual assault while they both were in high school, but he made it clear it will not change his mind, or his vote.

Aya Gruber, a University of Colorado law professor who has written extensively on feminism, rape culture, and the law, believes Graham is sending a clear and chilling message to potential future Fords: "It sends the message that you'd better keep this stuff private," she says. "Don't try to prevent anyone who harmed you from getting on the Supreme Court, because if you do, we will smear you. And if that doesn't work, we'll just say what happened to you doesn't matter."

Speaking to Pacific Standard from her Boulder, Colorado, office Monday morning, Gruber provided her analysis of the Kavanaugh case, which has grown more complicated after a second accuser came forward. [Editor's Note: Two more accusers have since come forward, though it is unclear at this time how those accusations will proceed.] Gruber also spoke of the sexual-political subtext of the hearings, and painted a dark future of a clash between a conservative court and a liberal populace.


Republicans are framing this as a "he said-she said" case. Is that accurate?

No. This is a very different situation than in most college sexual assault cases. It's usually clear that they were both there, at the scene of the incident; the question is whether it was consensual or not. That's where things get very "he said-she said." That is not the situation we have here. She says it happened; he says he wasn't there. This is something more like an alibi claim—"I was somewhere else at the time."

In criminal law, when we have something like that—two people who don't even agree they were in the same place at the same time—we usually start looking for objective evidence of the truth. It's not easy to determine that, given this was 30-some odd years ago. But you can start doing it by investigating people who went to high school with them, people who had gone to these parties and might have heard something. You put them under oath and find whatever evidence you can. The Senate is just refusing to do that. They may not find anything, but there's absolutely no excuse for not trying.

Lacking such evidence, how do you decide who is telling the truth?

You look at the credibility of the parties. Let's start with Kavanaugh. He has the classic motive to lie, the one every prosecutor has brought up in every single case I have ever defended, which is self-protection. He comes into the contest of credibility as the underdog. He can't admit to this because he wants to be on the Supreme Court, and he has a job on the D.C. Circuit court that he could very well lose. He has every motive to say this is not true, even if it is true.

That makes his denials less credible, and is why he should want independent evidence to bolster his case. He should want to find the evidence that he was in another place at the time.

Now let's look at Christine Blasey Ford. What would be her motivation to lie? She'd have to be either a political operative, or have a narcissistic desire to fame, and there's no evidence for either of those. There is zero motivation for her to make it up, so she is automatically more credible than him.

The only thing I think would have saved Kavanaugh would have been for him to say: "I did go to parties, but nothing like this happened. It's possible I was roughhousing with Mike Judge and she was there." Instead, he categorically says he wasn't there and she's a liar. That's a real problem. Other than strong partisans, the American people are not going to see her as a liar.

What about the second accuser, a fellow undergraduate at Yale University?

It seems to me the Republicans have doubled down since the [second accusation] came out. That suggests to me they may have more evidence that this story is not as credible, and they're going to use that to say: "See? All these claims are wrong." It feels like that's what they're doing right now.

Given that the future of Roe v. Wade is at stake, it has been clear since this position opened that protecting the rights of women is a key issue underlying this confirmation battle—perhaps the key issue. With these accusations of sexual impropriety, the subtext has become text. When we debate over who to believe, what are we really arguing about?

These [sexual] allegations are so meaningful to women because they seem to confirm their suspicion that he has a problem with women. The real worry is that Kavanaugh is an adherent of patriarchal values, and he is going to undo Roe v. Wade. If so, women will be prosecuted for making health choices; they'll also find it harder to access contraception. That's why Kavanaugh, in his initial announcement, was so intent on coming out with his daughter, talking about coaching their soccer team, and parading all of his female clerks on TV.

Given Kavanaugh's overall record on women's rights and issues of gender justice, women were already uncomfortable that this may be a person who has a broader problem with women as equal human beings. For them, these allegations are confirming that view. That's why they resonate with people. They see this as bad behavior that confirms their suspicion of how he views women.

Is that fair?

I actually find that assumption unfortunate. I don't know how much of a connection there is between how often men engage in drunken sexual behavior that steps over the line and how misogynist they are in other ways. I suspect those two things don't necessarily link up the way we think they do. I suspect men who are the most virulent proponents of women staying in the kitchen may be those who would never get drunk and don't have sex until they get married.

I also get nervous about the feminist agenda being hijacked by an anti-sex agenda. Women have a lot of problems, one of which may be imperfect sexual encounters, ranging from uncomfortable to violent. But they have other problems too, like a lack of health care and equal wages. I think it'd be a shame if feminism became completely about 40-year-old allegations of sexual misconduct in high school.

There are credible reports that Mitch McConnell knew about these potential problems going in, and urged President Donald Trump to nominate someone else.

If what the Republicans want is somebody to do their conservative bidding on the Supreme Court, the Federalist Society has a list that is pages long that would do that. There is only one difference between Kavanaugh and those other people: Kavanaugh has written that a sitting president possibly shouldn't even be investigated—let along indicted—by a special counsel.

This circus is horrible for women and horrible for the Supreme Court, and there's only one reason it's happening: Trump wants to thwart an investigation into the Russia issue. Once again, the country and our institutions are going to suffer because this president wants to protect himself from an investigation into his wrongdoings.

Given how political the process of picking and confirming Supreme Court nominees has become, do you fear the court is losing its legitimacy, and being seen as just another political institution?

Absolutely. If Trump manages to pack the court, and it seems he will—even if Kavanaugh doesn't go through, somebody else with a very right-leaning worldview will—it will produce a lot of 5–4 decisions, which is never a good thing. Those opinions will be very far apart, which is not a good thing for the legitimacy of the court.

Given that seats are gerrymandered, and our democracy does not operate perfectly, the only thing that has protected us from minority rule is the filibuster—and now that's gone. So we're looking a minority-rule situation, in which—especially if Trump serves two terms—the court is packed with people who do not reflect the views of a majority of Americans on various important issues.

Given our demographic changes, we're becoming a more diverse nation. The Generation Z people are very left in their sensibility. If we have a heavily conservative court for the next 40 years, we're going to see a wider and wider gap between the views of the people and the views of the court. The court will turn into an anti-majoritarian institution, in a ruling-by-fiat way. I think this is all portending a real showdown, potentially, between Congress and the court.

That sounds very destabilizing. How much power can a regressive Supreme Court wield, given that the justices can't make law?

Here's the problem for people who are on the progressive side of civil rights. What I have noticed on the Supreme Court of late—and what I think is being developed among Samuel Alito, Clarence Thomas, and Neil Gorsuch—is a new definition of "rights" that is going to be used to strike down progressive legislation. We're going to see "free speech" claims that strike down campaign-finance legislation, and possibly even transparency. By reviving corporate-contract rights, which died in the 1920s, it could undo all worker-protection legislation. We could see freedom of speech, and religious freedom, be increasingly used to strike down anti-discrimination legislation.

I'm foreseeing a Supreme Court swinging toward a new articulation of civil rights—civil rights for all of the people who want to undermine the rights of workers, of people of color, and of people who care about the environment. That is the real worry. They are going to be an incredibly activist court—on behalf of entrenched, powerful interests. That's where we're going to see the showdown: Between an increasingly progressive population, and an increasingly activist court, which is going to bend over backwards to defend a dying status quo.

This interview has been edited for length and clarity.