Why Ford, Not Kavanaugh, Is Believable: An Analysis

The Senate Judiciary Committee wrapped up a hearing this week on the nomination of Judge Brett Kavanaugh to the Supreme Court. The hearing that began Thursday morning featured the testimony of Kavanaugh and Dr. Christine Blasey Ford, who reported that Kavanaugh sexually assaulted her when she was 15, and he was 17.

Demanding that Senator Klobuchar answer his questions about her drinking habits was the kind of thing a man with a sense of entitlement would do.

The hearing also included an outburst by an unhinged Republican Senator Lindsey Graham, who ranted about the audacity of women who expect the all-mighty Senate to give a damn about sexual abuse of women. Graham’s wild-eyed speech alone, especially following an angry and not remotely judge-like performance by Kavanaugh, was upsetting to a lot of people. Is there not a guidebook about how to behave when the whole world is watching American democracy in action?

The committee, apparently aware that the hearing was not well-received by the public, conducted proceedings Friday morning in a more civilized manner, with each member of the Senate Judiciary Committee taking the time to make a sort-of closing argument about the evidence they’d heard the day before. A party-line vote in favor of  Kavanaugh’s nomination seemed inevitable after Republican Senator Jeff Flake, who had been on the fence about Kavanaugh, announced that he would vote in favor of the nomination. Then, moments before the vote was taken and after being confronted in an elevator by two assault survivors, Senator Flake called for a one-week delay on the full Senate vote so the FBI could conduct a limited investigation on the core allegations of sexual misconduct.

The FBI now has to investigate a controversy many see as unresolvable because Kavanaugh said he is 100 percent certain he never sexually assaulted anyone, and Ford said she is 100 percent certain Kavanaugh sexually assaulted her.  

One of them has to be lying.

What the Testimony Tells Us

The FBI breaks these ties all the time when a person reports a crime, and the suspect claims innocence. In this case, the FBI will investigate the relevant facts, and report the results to the Senate, so they can determine whether the claims of 100 percent certainty should be respected, or not. Here’s some of what we already know from the testimony before the judiciary committee:

Demeanor

The manner and style of a person’s testimony says a lot about their credibility. Kavanaugh was angry, defiant, arrogant, (“I graduated first in my class”) disrespectful, and evasive (when asked if Mark Judge should testify, or if he would support an FBI investigation, he refused to answer). Plus, he filibustered rudely, using up the time of Democratic Senators who were trying to ask him legitimate questions. Ford, by contrast, was respectful, deferential, did not filibuster once, and was anything but arrogant.

False, Consistent, and Inconsistent Statements

Image: Patsy Lynch/Alamy Live News

Judge Kavanaugh made several false statements before the Judiciary Committee. He said he has “always” treated women with dignity and respect. Yet he (and several of his football buddies) identified a woman named Renate in a high school yearbook as a sexual conquest. He tried to claim the reference to Renate was affectionate, and that she was a pal of his and his buddies, but Renate has said she was not in their close group of friends, and that she was hurt and offended by the yearbook references.

Kavanaugh also lied when he repeatedly said “all four” people identified by Ford as being present at the house where the assault took place “refuted” Dr. Ford’s testimony. In fact, three of the four, who were not eyewitnesses, said only said that they did not recall the party. Only Kavanaugh’s friend, Mark Judge, “refuted” Ford’s description of the assault, but he refused to testify at the hearing, and Republican Senators acknowledged that he would assert his Fifth Amendment right against self-incrimination if subpoenaed to testify or be interviewed by the FBI.

The terms “Devil’s Triangle” and “FFFF-Fourth of July” are both sexually degrading to women.

Kavanaugh also lied about the meaning of certain coded references under his high school yearbook photo. He said the phrase “Devils Triangle” refers to a drinking game, akin to beer pong, and that “FFFF-Fourth of July” refers to a friend who used to stutter as a joke when using the F-word. A quick Google search belies both claims. The terms are sexually degrading to women. Judge Kavanaugh also testified that he didn’t drink on weeknights as a young man, but his own calendar from 1982 showed that he did. And he said he never drank to a point of blacking out, but some of his friends from Yale provided statements saying he was often extremely intoxicated.

Ford’s statements, by contrast, have been consistent. She reported the assault to others as long ago as 2002, and the Judiciary Committee did not identify any inconsistencies or false statements. Two aspects of her testimony did strain logic, when she said she did not recall who drove her to and from the party, and did not recall whether she showed a reporter at the Washington Post counseling notes indicating that she mentioned the assault in 2012 to a therapist. She had explanations for these lapses, but they are weak spots in her testimony

Defense Theories 

Kavanaugh’s defense is that Ford is mistaken about him being her assailant and that Deborah Ramirez and Julie Swetnick are outright lying. He described all three women as involved in a left-wing conspiracy, and he suggested they were working with and/or being victimized by the Democrats because Kavanaugh is a conservative and the Democrats don’t like his politics. Politically motivated agendas in Congress are hardly unusual, but no left-wing driven conspiracy of women came forward against Neil Gorsuch, a similarly conservative judge, when he was nominated to the Supreme Court less than two years ago.

Ford reported the assault to others as long ago as 2002, and the Judiciary Committee did not identify any inconsistencies or false statements.

While it is certainly possible for people to lie, even under threat of felony prosecution, the idea that all three women are involved in a conspiracy is nowhere supported by the facts. Ford told her husband about the assault in 2002, and she told others before Kavanaugh was nominated to serve on the Supreme Court.

It’s hard to believe a conspiracy against Kavanaugh could have been started by Ford more than fifteen years ago. Judge Kavanaugh also had a tell-tale moment during the Judiciary Committee hearing while talking about the three women’s claims. He said “The Swetnick thing is a joke,” singling out Julie Swetnick’s report for special condemnation, thus suggesting that he believes the other claims have more credence; a subtle but important point that takes on even more significance because he also tried to differentiate Ford’s claim as a mistake, rather than a malicious lie. If this is all an organized smear campaign, why would it be composed of a mistake by Ford, a run of the mill lie by Deborah Ramirez, and a “joke” by Julie Swetnick?

Recall that Ford named Mark Judge as a witness to and participant in her assault. If Ford were lying, or even mistaken, would it make sense for her to name her assailant’s good friend as a witness, knowing the guy would support his buddy? How would that make her conspiratorial lie (or mistake) seem truthful? How would it help the people pushing a smear campaign?

Motive to Lie 

Politically motivated agendas in Congress are hardly unusual, but no left-wing driven conspiracy of women came forward against Neil Gorsuch.

Kavanaugh has an obvious motive to lie. He wants to be on the Supreme Court, and he wants to protect his reputation. These things do not make him a liar, but they are relevant in the same way that all sex offenders are motivated to lie when confronted by victims, police, etc. Ford may be motivated to lie because she disagrees with Judge Kavanaugh’s judicial philosophy. It wasn’t discussed at the hearing, so we don’t know her feelings about Judge Kavanaugh’s philosophy, but she is a registered Democrat. This does not make her a liar, but it is relevant.

Bias

Judge Kavanaugh made his contempt for Democrats very clear during his testimony. Ford did not show contempt for either party, but as a Democrat, her bias is fair to consider on the issue of credibility. In addition, Ford admitted that Senator Diane Feinstein’s office recommended her attorney, suggesting a connection with the Democratic party. But it also shows credibility on the part of Ford because she did not have to admit publicly that she found her attorney because of a referral from Senator Feinstein’s office. The fact that she told the truth when she could have easily said she did not recall, suggests Dr. Ford is not lying to help the Democratic party.

Ford is a registered Democrat. This does not make her a liar, but it is relevant.

The Evidence

The evidence is overwhelming that Ford is telling the truth, and is not mistaken about Judge Kavanaugh being the man who assaulted her. Most Republicans found Ford credible, but said they needed corroboration to vote against Judge Kavanaugh. Why? Church abuse victims had only their word when they came forward 40 or 50 years after a sexual assault. They were believed and respected, and many cases were successfully prosecuted in criminal or civil court. This is because there is no corroboration requirement. It was abolished decades ago as a sexist and degrading legal doctrine that disrespects and devalues the word of a woman. If corroboration is not required in a court of law before a person can be convicted of a crime, it should hardly be required by the Senate, which is not making a decision about liberty, when deciding whether a man should be elevated to the most prestigious and influential job in our nation, for life.

Kavanaugh himself corroborated Ford’s claims by conducting himself with arrogance and disrespect for members of the Judiciary Committee.

Moreover, there is corroboration. This is not a case of he said-she said, it is a case of he said-three said. The women corroborate each other by showing that Kavanaugh had a habit of engaging in sexual misconduct while drunk. In addition, Ford provided evidence showing that she told people about the assault long before Kavanaugh was nominated to the Supreme Court.

Even Kavanaugh himself corroborated Ford’s claims by conducting himself with arrogance and disrespect for members of the Judiciary Committee, especially Senator Klobuchar, when he demanded that she answer his questions about her drinking habits. It was the kind of thing a man with a sense of entitlement would do, and many studies correlate a sense of entitlement with high rates of sexual assault.

Whatever one thinks of Ford and Kavanaugh, the FBI will soon begin gathering evidence, and their results could dramatically change the minds of people on both sides of the aisle. Kavanaugh was evasive during his testimony about whether he would support an FBI investigation, but said he would cooperate with any process the Senate undertook. Ford has consistently stated her support for an FBI investigation.

Church abuse victims have had only their word when they came forward 40 or 50 years after a sexual assault.

If the FBI finds evidence that the women are lying, they could go to jail, and Kavanaugh could sue them for a lot of money, though he hasn’t said anything about filing suit – even against Julie Swetnick, whose report he described as a “joke.” If on the other hand, the FBI finds evidence confirming the women’s stories, Kavanaugh could be sued for falsely accusing them of lying; a litigation strategy not unfamiliar to Swetnick’s attorney, Michael Avenatti.

Women are Watching

Whatever happens, the Senate is keenly aware that women are watching carefully–a sexual assault against any woman is a sexual assault against all women. If Kavanaugh is confirmed, I believe women will retaliate with a vengeance, in the voting booth and elsewhere, including mobilizing politically to demand passage of the Equal Rights Amendment (ERA).

Few people are even aware that American women don’t yet have equality under the Constitution. The ERA passed Congress in 1972, but was never ratified by the states. To become an amendment to the Constitution, 38 states have to ratify, and Illinois became number 37 earlier this year. With women’s equality firmly established in the Constitution, judges like Brett Kavanaugh will have a much harder time ruling against women unfairly–or subjecting them to second-class treatment under the law. 

With the Equal Rights Amendment, judges like Brett Kavanaugh will have a much harder time subjecting women to second-class treatment under the law.

This country is overdue for a women’s movement, and Kavanaugh’s nomination is just the inspiration we need to rise up again. Women will never live violence-free lives if Supreme Court justices are not people of integrity who don’t hurt women, dismiss their voices with flippant remarks, or think sexual misconduct is a joke.

A hundred years ago, women risked their lives for the right to vote, and we’re a lot tougher today. If the Senate confirms Kavanaugh, the #MeToo movement will seem sweet in comparison. 

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A nationally recognized expert on child abuse and interpersonal violence, Wendy Murphy has published numerous academic and pop culture articles, and provides legal analysis for CBS, CNN, ABC, Fox News, and MSNBC. She is a co-host on WRKO radio, a newspaper columnist, and author of And Justice for Some. Murphy began her career as a prosecutor in Middlesex County, handling child abuse and sex crime cases, and then moved into private practice, focusing on violence against women and children. She is an adjunct faculty member at New England Law| Boston and helped establish the law school’s Judicial Language Project, the first of its kind in this country.