What Kavanaugh should learn about criminal justice from yesterday’s ordeal
Many things, most of them negative, can and will be said about the hearing yesterday at which professor Christine Blasey Ford accused Judge Brett Kavanaugh of sexual assault: It was “8 hours of fighting, and everybody lost”; there were “partisan punches”; it prompted “tears” and “jeers”; it was “a grotesque display of patriarchal resentment.” Regardless of the truth of the allegations, and regardless of the outcome, the hearing was an opportunity for Judge Kavanaugh and others on the right to reconsider some long-held positions about the way we mete out criminal justice in this country.
“Maybe it’ll make him a better judge because he knows what it feels like to be accused of something, maybe it’ll give him insight,” GOP strategist Susan Del Percio said on MSNBC’s “Morning Joe.” After watching the hearing, she concluded, it seems like that won’t happen. “He will just be angry and resentful.”
Kavanaugh’s judicial record shows that his “views on criminal justice are defined by a deference to law enforcement and a broad view of executive power that will enable more stops and searches, more arrests, more prosecutions, and an overly punitive justice system,” writes Kyle Barry for The Appeal. And during yesterday’s hearing, Kavanaugh called the allegations a “coordinated and well-funded effort to destroy my good name and destroy my family.” But in a quieter moment of reflection, if he is paying attention, he might learn the following:
Accusations can ruin lives. Earlier this week, South Carolina Senator Lindsey Graham told “Fox News Sunday” host Chris Wallace, “What am I supposed to do? Go ahead and ruin this guy’s life based on an accusation?” During his time questioning Kavanaugh, Texas Senator John Cornyn proclaimed, “You’re not guilty if someone makes an allegation against you in this country. We’re not a police state. We don’t give the government that kind of power.” Later during Cornyn’s questioning, Kavanaugh lamented, “I’m never going to get my reputation back. My life is totally and permanently altered.” Cornyn told him not to give up.
Kavanaugh seems to believe that he is the victim of a pointed conspiracy and might not extend empathy toward those unlucky people churned through the criminal justice system every day, many of whose lives are upended by mere accusations. This view is not uncommon, even among judges. A recent episode of “Serial” quoted a judge saying, “[T]o someone with common sense, even one day in jail is devastating, life changing. To someone who’s got no common sense, maybe they do three years, five years. Means nothing.” The host, Sarah Koenig, said she understood what the judge was trying to say. “Punishment is relative. What it takes to teach you a lesson depends on what you’re used to,” she said. “But there was a more disturbing implication as well, [that] we are not like them. The ones we arrest and punish, the ones with the stink, they’re slightly different species, with senses dulled and toughened.” But when discussing a low-income woman with a criminal record who had been arrested on a charge that was ultimately dropped down to disorderly conduct, the case was no small matter. The woman “didn’t feel the stress and outrage and shame of this case less than I would have,” Koenig concludes. “I think she felt it more.”
Speed matters. Throughout the hearing, Kavanaugh howled about the wait he had to endure before he had a hearing. “The day after the allegation appeared, I told this committee that I wanted a hearing as soon as possible to clear my name,” he said in his opening statement. “I demanded a hearing for the very next day. Unfortunately, it took the committee 10 days to get to this hearing. In those 10 long days, as was predictable, and as I predicted, my family and my name have been totally and permanently destroyed by vicious and false additional accusations.” Those words made this writer, a former public defender, unable to think of anything but the delays my clients had to endure before they were given the opportunity to tell their side of the story, before they could confront their accusers, before they could try to clear their names. In that time, they were often unable to work, separated from their children, or held in jail. The wait could go on for years, and most of the time, our clients never got their day in court. In the future, when ruling on an appeal that has taken years to reach his desk––years during which a person waited in prison––Kavanaugh could remember what it felt like when he “demanded” a hearing for the next day and had to wait nine more days.
Punishments never really end. In his opening statement, Kavanaugh listed the lasting consequences these accusations might have on his life, even though no criminal charges have been filed. “I love teaching law, but thanks to what some of you on this side of the committee have unleashed, I may never be able to teach again,” he said. “I love coaching [my daughters’ teams] more than anything ever done in my whole life, but thanks to what some of you on this side of the committee have unleashed, I may never be able to coach again.” Kavanaugh was noting, rightly, that our system and our society often punish people permanently. Collateral consequences ensure that people, once tainted by a conviction, are unable to return to their communities as full citizens: Some are unable to vote; many struggle to find any job, not just a preferred job; children are taken away; many are deported; securing housing can be a nightmare; and some are turned away even from shelters. In his future rulings, Kavanaugh could remember this urgent fear of perpetual punishment.
You are not the worst thing you’ve ever done. “Listen to the people I know, listen to the people who have known me my whole life,” Kavanaugh pleaded. “Listen to the people I’ve grown up with, and worked with and played with and coached with and dated and taught and gone to games with and had beers with.” The desperation in Kavanaugh’s voice as he asked to be judged on the basis of his whole life might sound familiar to those who have been accused of wrongdoing, even those who are guilty. Between 70 million and 100 million Americans has some type of criminal or arrest record, and none of them wants to be seen only as the worst thing they have ever done. Regardless of the truth of the allegations against the 1 in 3 Americans who have a record, and regardless of the truth in Kavanaugh’s case, everyone deserves to be seen as a whole human being. Kavanaugh should keep this in mind, whatever his future holds.