Let me quickly cover some introductory observations. Yes, the recent confirmation represents a defining moment in the American judiciary. Yes, the political theatre shows the depths of our fall into a sullen basement of partisanship. And on a very serious tone, the confirmation highlights the journey still before us to eradicate sexual violence.
Now, some questions, and my perspective on the answers. Then a conclusion on what was needed, and no one provided.
Certainly. Few if any have questioned this. His education, experience, knowledge, accomplishments and credentials rank sufficiently high to make him a qualified candidate. And his conservative leanings sit sufficiently in the broad mainstream to not disqualify him. And I will rate his partisanship acceptable, barely.
So he is qualified. Unless of course, he committed a sexual assault.
Certainly. Testimony on a traumatic incident of 36 years ago, especially as traumatic as sexual assault, can carry the same weight as if the incident occurred recently. When a death occurred in my family, I was in grade school. I remember being taken out of class, to take exams, since to accompany my family out of town I would be absent during the exam week. I do not remember the month, nor what grade I was in, nor what subjects the exams concerned, nor the name of the teacher proctoring the exam. But I do remember the haunting lonely feeling of being alone in the giant auditorium taking the exams on a chair without a desk.
So we can understand that traumatic memories remain fresh while details around the incident fade.
We can also imagine, just like no one in my class would remember my being quietly excused, no one at the small gathering during which the alleged assault occurred would remember Ford leaving early. And her ride home? Ford needed rides all the time, everywhere, likely hundreds of times in her high school days.
On balance, not about his denial of the sexual assault. Why do I think that? The Judge, if he did commit the assault, most likely either never remembered or readily forgot. Multiple indications surfaced that he drank a lot. We can imagine scenarios of blurred memory.
And the ethos of the times, and the blusterous nature of his peer group, could have combined with even a partially blurred memory to convert an assault, at least in the Judge’s mind, into a harmless act of horseplay or a fictitious, fake boast. Either of which could have slipped from his memory.
Likely not. Given a list of relatively equal candidates, or even a group of new hires still in their probation period, we might not take a chance. We would need to carefully assess the liabilities of bringing on a person with an alleged sexual assault. It would depend on the job. As a high school teacher, a setting with potentially vulnerable students? Likely not.
But hiring an employee differs dramatically from confirming a Supreme Court nominee. In a job situation, if a credible accusation arose, we could remove the candidate from consideration quietly, no drama.
Even if a job offer had been extended, we could work to cancel the offer. Such a step could be tricky, but a properly crafted job offer would state the offer as conditional on health, background, references, et al. Again, the job offer could be rescinded, no drama, no publicity, no ideological ramifications.
In contrast, too much, way too much, political positioning and institutional momentum lies in the balance to take such steps once a Supreme Court nomination has occurred. A nominee becomes locked in.