The ugly double standard over Kavanaugh’s so-called youth

Editor’s Note: Shira A. Scheindlin is a former US district judge in the Southern District of New York and a member of the Executive Committee of the Lawyers’ Committee for Civil Rights Under Law. Kristen Clarke is president and executive director of the Lawyers’ Committee for Civil Rights Under Law. The views expressed here are solely those of the authors. View more opinion articles on CNN.

Make no mistake – professor Christine Blasey Ford’s allegations of sexual assault against Judge Brett Kavanaugh must be taken very seriously.

Shira A. Scheindlin

Kristen Clarke

The conduct alleged by Ford is nothing less than sexual assault.She feared Kavanaugh might “inadvertently kill” her. Of course, Ford did not go to the police at the time and there was therefore no contemporaneous investigation, much less a prosecution, conviction or sentence. But the conduct – if proven – is still assault, although because of statutes of limitations there is no longer any chance of a criminal prosecution. However, is it a disproportionate punishment to deny someone who committed this offense a position as an associate justice of the Supreme Court? The answer should be a resounding no.

It’s important to emphasize the way many have characterized the alleged behavior as a so-called youthful indiscretion. Others, even if they are not using Kavanaugh’s youth as an excuse, ask questions or make claims suggesting that something he allegedly did as a minor should not disqualify him from serving on the court.

Contrast that characterization with how black and brown teenagers – Michael Brown, Trayvon Martin, the “Central Park Five” – have been described in more adult (and thereby more threatening) terms.

Jeffrey Toobin 09182018

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At the same time, thousands of young men (disproportionately people of color) have been convicted of sexual assault for conduct similar to or lesser than what is alleged against Kavanaugh – conduct that in some cases also occurred when they were teenagers. Nonetheless, they were arrested, prosecuted, convicted and jailed with sentences in double digits of years, not months. Prosecutors did not decline these cases because the perpetrators were teenagers at the time.

And these perpetrators might have been the lucky ones. In the unhappy history of extrajudicial punishment in our country, we must remember that the lynching of 14-year-old Emmett Till was a response to an African-American boy’s alleged wolf whistle at a white woman. And then there is the infamous case of the “Scottsboro Boys,” who nearly suffered a similar fate for the alleged rape of a white woman — which it turned out they did not commit.

These allegations call for a thorough criminal investigation, given the high stakes and a potential lifetime appointment for Kavanaugh. That Ford’s attorneys have called for one before she testifies in front of the Senate Judiciary Committee is entirely right.

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It’s been done before. President George H.W. Bush called on the FBI to investigate the allegations made by Anita Hill against then-nominee Clarence Thomas. Despite that precedent, Senate Republicans and the Trump administration are thus far refusing to allow the FBI to review or investigate Ford’s accusations. A full investigation and a fair hearing of these issues are no longer choices – they are necessities.

Ford has taken a lie detector test – perhaps Kavanaugh and his high school classmate Mark Judge should do the same. Judge has said he will not testify publicly and maintains he has no memory of this incident or the party where it occurred – despite authoring a book describing his high school as “swimming in alcohol” and referencing a friend called “Bart O’Kavanaugh.” If the FBI were to investigate, Judge would at the very least be subjected to an interview.

Congress has subpoena power and routinely uses it to compel testimony, and it should not hesitate to do so here. Under subpoena, Judge could be compelled to confirm whether he is referencing Kavanaugh and describe the conduct that unfolded at parties they attended together. The Judiciary Committee should hold a hearing with all available witnesses only after the completion of a thorough FBI investigation. Only then can a finder of fact make an appropriate determination of credibility – which is how “he said, she said” cases are resolved.

WASHINGTON, DC - FEBRUARY 07: U.S. Senate Majority Leader Sen. Mitch McConnell (R-KY) (L) walks towards the Senate chamber at the Capitol February 7, 2018 in Washington, DC. Sen. McConnell and Senate Minority Leader Sen. Chuck Schumer (D-NY) announced that they have reach agreement on a two-year budget deal. (Photo by Alex Wong/Getty Images)

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Some US senators are already doubtful of Kavanaugh’s truthfulness. In his first confirmation hearing in 2006 for his position as a judge on the US Court of Appeals for the D.C. Circuit, Kavanaugh was asked about his involvement with the Bush administration’s policies after 9/11. He testified he did not know of a memorandum defining torture or of the National Security Agency’s use of warrantless electronic surveillance.

However, after the hearing it was reported that Kavanaugh had been aware of these issues; Sen. Richard Durbin accused Kavanaugh in 2007 of giving contradictory testimony to the Senate Judiciary Committee. Sen. Patrick Leahy, in an op-ed in The Washington Post, also accused Kavanaugh of misleading the Senate.

Looming over the current controversy is the fact that the Trump administration loosely invoked executive privilege to deny the Senate Judiciary Committee access to a huge number of documents and the committee refused to issue subpoenas to access those materials.

Given this history, there is a real question of whether Kavanaugh is a credible witness and whether the Senate has enough information to evaluate his character and fitness to serve as a Supreme Court justice. The Senate will fail in its duties if it does not provide the opportunity for a full and fair hearing, informed by an FBI investigation.

At the end of the day, as Sen. Charles Grassley, chairman of the Senate Judiciary Committee, once said, the Supreme Court can do just fine with eight justices until a full and fair confirmation proceeding results in the confirmation of a ninth justice. Under the circumstances, a confirmation of Kavanaugh without such a full hearing will forever taint his appointment and the administration that condoned and supported a sham proceeding.