Trump's America

Donald Trump's Supreme Court nominee shows how political power determines justice

Posted September 18, 2018 13:11:13

When the news broke over the weekend of Dr Christine Blasey's accusations of sexual assault against US Supreme Court nominee Brett Kavanaugh, the immediate reaction was to think back 27 years to the allegations of sexual harassment by Professor Anita Hill against then Supreme Court nominee Clarence Thomas.

Like Professor Hill's case against Judge Thomas, the reports of Judge Kavanaugh's alleged sexual assault of Dr Blasey arrived late during the process of confirmation hearings.

And like in the case of Professor Hill, the accusations came to light only because of leaked information.

In Professor Hill's case, the great Supreme Court journalist Nina Totenberg was leaked an FBI report on Judge Thomas that included the allegations.

In Dr Blasey's case, a letter she sent to her elected representative, Senator Diane Feinstein, made clear her accusations but also her desire to remain anonymous. The contents of that letter have since been leaked as well.

Judge Kavanaugh has denied the accusations, and the White House has stood by those denials. 

No statute of limitations for Kavanaugh's alleged crimes

So, what's new here? What's not?

Brett Kavanaugh's factbox

  • 2003-06: Staff secretary to president George W Bush
  • 2001-03: White House counsel's office
  • 1992-93: Office of Solicitor General

While Judges Thomas and Kavanagh are each accused of crimes that involve sex, in Judge Thomas' case Professor Hill and her multiple corroborators alleged that he regularly sexually harassed Professor Hill and other women who worked underneath him.

Under Title VII of the US's 1964 Civil Rights Act, sexual harassment is a form of workplace discrimination. While more recent allegations against Judge Thomas suggested that he may have also engaged in sexual assault at other times, sexual harassment in and of itself is a civil offence under American law.

Particularly galling in the case of Professor Hill's allegations, if Judge Thomas was engaging in such discrimination, he was doing so while directing the Equal Employment Opportunity Commission, the federal agency directed with enforcing anti-discrimination in the workplace.

In Judge Kavanaugh's case, there is an accusation that under Maryland law he committed attempted rape in the first degree (Maryland Code, Criminal Law — 3-309) through the use of physical force and suffocation.

While Judge Thomas could have been subject to civil charges from his victims had they filed claims within the statute of limitations, there are no statute of limitations for Judge Kavanaugh's alleged crimes.

He could, feasibly, still be charged to the fullest extent of the law and be "subject to imprisonment not exceeding life".

Legacy of Anita Hill case may be used

The crimes here are different, even if both indicate a constitutional unfitness to serve on arguably the world's most important judicial body for a term that will also, with the darkest of irony, not exceed life.

In the more immediate term, the US Senate is faced with the prospect of confirming an alleged attempted first degree rapist who could still come in for prosecution.

It may be that a Republican member of the Senate's Judiciary committee, as Republican Senator Jeff Flake of Arizona has indicated he might, will hold off on putting Judge Kavanaugh's nomination up for a vote until Dr Blasey and other possible witnesses can testify.

Were that to occur, the legacy of Anita Hill's 1991 testimony before the same committee will once again be a point of comparison.

That time, Republicans as well as Democrats, including former vice president and prospective 2020 presidential candidate Joe Biden, enacted what would seem like a caricature of the way Western culture has impugned the motives and credibility of victims of sexual assault, if it did not still all too often occur.

The various realignments that have occurred in American politics since 1991 suggest that if Dr Blasey testifies, she can expect such treatment from only the Republican majority this time, rather than watching senators from both parties assail her and her motives.

Supreme Court seat the Holy Grail of GOP agenda

Still, Republicans do have a majority in the Senate.

Just as in 1991, a Supreme Court seat is the Holy Grail of that party's agenda — which not incidentally entails specific promises to their voters to strip women of the equal right to control their bodies.

In all likelihood, no matter how much evidence is presented that Kavanaugh attempted to commit rape in the first degree, and no matter how much Republican senators, Mr Trump and Attorney-General Jeff Sessions like to talk about getting tough on crime, they will vote to confirm someone who could still theoretically face life in prison.

Political power determines justice, not the other way around.

To paraphrase Upton Sinclair's definition of ideology, it's difficult to get someone to understand something when their power depends on them not understanding it.

What's new here? Not much.

Dr Thomas Jessen Adams is a lecturer in American Studies and History, and the academic coordinator at the United States Studies Centre at the University of Sydney.

Topics: sexual-offences, law-crime-and-justice, donald-trump, united-states