Judge Kavanaugh’s story is evolving every day and so it is useful to try to stand back and make some observations that may withstand whatever else happens this week much less how Dr. Ford comports herself on Thursday, should that hearing actually go forward. These observations may seem obvious but they are accurate and they do explain where we are now in the interconnection between politics and sex.
The first thing to observe is that accusations of sexual harassment are the Communism of our time. A career and a reputation can be ruined by such an accusation just as was the case when charges of having been a Communist lost people their jobs and reputations during the McCarthy period. Judge Kavanaugh will always have a cloud over his head even if he makes it to the United States Supreme Court, just as Clarence Thomas does, who is associated with the Anita Hill testimony more than he is with the judicial record he has piled up since he joined the Court. The violation of sexual decorum leads to outrage, even if we do not know how prevalent this is in American society even if Feminists claim that this is a long standing scourge that has malformed the lives of many women, and even if it is not clear how serious the allegation is, since both exposing oneself and attempted rape are this week thought to justify similar responses. The accused perpetrator becomes the outcast, the Other, separated by the rest of us by his (or her) mark of Cain.
This process was the one described, using their sociologically different theoretical perspectives, by Emile Durkheim, Irving Garfinkel and Carl Schutz as constituting deviance, which means abhorance by the community for the perpetrator or for the category of individual, such as a Jew or a gypsy or a homosexual, a feeling strong enough to rob the person of a right to due process or any other right ordinarily recognized as applying to a citizen. Deviance, strictly speaking, is far different from the extension of that idea beyond the criminal or the sexual harasser to a general process whereby controversial ideas or any departure from custom becomes a cause of discomfort. Some people may not like Sikhs in their neighborhood, or people in the family who have outspoken political opinions, but the extent of that derision is qualitatively different from deviance, as is also people dressing inappropriately for an occasion, or otherwise stretching or violating mere custom. Serious deviants become non-persons, creations of the events that have overtaken them rather than inhabitants of their old lives. That is true of both Judge Kavanaugh and of his accusers.
A second point to make is that very few people defend due process of law as an abstract principle even though it is supposedly a hallmark of democracy, one that is embedded in the law and in the United States Constitution. Women Senators who now demand that there be something of due process in the proceedings before the Senate Judiciary Committee were perfectly willing to throw Al Franken under the bus, stripping him of a seat in the Senate to which he had been duly elected, without granting him the expedited hearing before the Senate Ethics Committee that he had requested. It was not politically expedient to do so, given that the Senate seat in Alabama was at the time turning on charges of sexual misconduct against the Republican candidate. Don’t muddy the waters by letting the Al Franken accusations just hang out there. This week, it is the Republicans who want to rush to judgment. Substantive due process cannot be allowed because even if it does not derail the nomination, it will keep the story going ever closer to the midterms and that won’t be good for the Republicans. So due process gets set aside. So I side with the hypocritical women Senators because they are the ones, in this case, calling for due process.
A third point is that we are seeing a serious change in the cultural view of how people should handle their sexuality. One idea behind the sexual revolution of the Sixties through the Eighties, the last of those decades the one in which Judge Kavanaugh’s supposed misdeeds took place, was that women had just as much right to exercise their libidos as men did. Erica Jung spoke of what she called “the zipless fuck”, by which she meant casual sex without consequences. Nowadays, the culture seems to think there is no such thing. Someone, usually the woman who is involved in the courtship negotiations whereby men propose something and women dispose of the request by accepting or rejecting it, is likely to be offended by what seems to her a too forward proposal. That seems to be the case with the second accuser of Judge Kavanaugh, who took some days to decide that she was going to name the right person to be accused. So behavior that at one time might have been taken as simply gross is now regarded as sexual harassment, within the same category as attempted rape. We are back in the world of double standards. Women are regarded as more sensitive and closed about sexual advances than are men, their consciousnesses more inclined to remain virginal. Nowadays, they need not laugh off an affront but can call it to public attention, even as newscasters are free to use clinical detail in describing the purported event. So, perhaps, we are back to a time when parties are chaperoned, when women are urged not to drink because that would seem to make them available for sexual importuning, when job interviews are conducted with a female in the office so that no improper proposals are made by the hirer.
Moreover, we are to judge what people did back then, a generation ago, when, perhaps, sexual standards were more lax, by today’s more strict standards. That forgotten earlier dispensation certainly happened during the McCarthy Era, when there was instant amnesia about the fact that the Russian had been our allies during the Second World War, and that a great many intellectuals worried, during the Great Depression that had preceded the Second World War, how and whether American society could survive and so had, at least fleetingly, considered whether the Soviet Union represented a better way. And, in general, how much are teenage transgressions to be held against teenage boys, no matter how successful and respectable they have become in their later lives? Perhaps if the transgression is serious enough, there is no statute of limitations either legally or morally. That would hold for an attempted rape but not, perhaps, just for sexual behavior that is gross.
A last question to be posed before the Thursday hearing is a legal one. What would make Dr. Ford a credible witness? This is a very tricky question even if it is central to criminal justice. By most accounts, it means that the witness can tell a clear and non-contradictory story and stick to it and also that the witness has no motive to provide misleading testimony, such as a financial stake in the outcome, or a political bias against the accused. Defenders of Judge Kavanaugh have conjured up reasons Dr. Ford might be coming forward. Perhaps she is politically motivated. After all, she had contributed a total of $100 to Democratic candidates. Or maybe she wants to be in the limelight so as to support of her #metoo movement sisters. For their part, Dr. Ford’s supporters say she has no reason to come forward except to unburden herself of the truth of what she is saying, given how much she wants to avoid the limelight and how personally scarring is the exposure of her claims. So the argument of interests can go either way.
There is another element of the credible witness. That is demeanor. Do witnesses conduct themselves in a manner that earns them the right to be considered trustworthy? I don’t know how to settle that question and I would ask my lawyer friends to weigh in on this question. It seems to me that you cannot very well judge the truthfulness of a witness, whether the witness is lying, unless the film director has provided the clues, such as a smirk delivered before entering the courtroom. If the witness does not decrease credibility by babbling or referring to flying saucers, whether the witness seems calm and deliberate or not, or fraught with anguish, or merely an unpleasant person, does not seem relevant to the determination of whether the witness is telling the truth. My mother always thought she could tell when someone was lying, but she used circumstantial evidence to establish the case, as when an uncle claimed he had lost his wallet but not the identification papers stored there, when my mother thought he lost the money at the track. I can’t tell when people are lying and even if I think they might be I suppose it is because they are telling a white lie to safeguard my feelings rather than so as to do me damage. I suppose that most people make the same presumption just in order to manage their social lives, so that they can trust their loved ones and their friends, and would have to adopt a new, skeptical stance, when looking at a witness in a hearing room. How successful would onlookers be at making that transition when dealing with either Dr. Ford or Judge Kavanaugh? That evaluation gets even more complicated if we consider that what the witnesses will be talking about in public is sex, and we have no idea about how these people talk about such matters in private much less among their friends and so it is difficult to say if they are giving telltale signs of lying when discussing sex in public. But I am not a Senator while those on the Judiciary Committee have to decide which witness is telling the truth, given that we are in the unpleasant situation, to be avoided whenever possible, of knowing that one or the other of the two is lying, and there is no way to get around that other than to say “I don’t know” and so vote for or against the nominee on purely political grounds.