Editor’s note: Lesley Wexler is a University of Illinois law professor who studies anti-discrimination norms through domestic and international law, social movements and corporations. Wexler spoke with News Bureau business and law editor Phil Ciciora about the impact of Christine Blasey Ford’s testimony before the Senate Judicial Committee.
Did Christine Blasey Ford’s testimony change American attitudes toward sexual assault? What effect did Brett Kavanaugh’s subsequent testimony have?
Their respective testimonies before the Senate Judiciary Committee crystalized certain attitudes rather than changing them.
The lasting effect of Ford’s testimony will be to give victims a strong image of someone speaking truth to power. I think she empowered a lot of victims to come forward. We saw the Twitter hashtag #WhyIDidntReport that generated thousands of responses.
Kavanaugh’s testimony really mobilized Republicans and served to confirm to much of their base that the allegation of sexual assault was an orchestrated partisan smear. It also gave credence to their concerns about the lack of due process and other constitutional protections for those accused of #MeToo-related allegations.
If Kavanaugh is confirmed, would that have a chilling effect on the #MeToo movement?
I hope not. Most #MeToo cases aren’t this extreme. Victims should realize what a hard case for accountability that this particular example is. It’s an event, long in the past, after memories of potential corroborators have faded, involving the alleged actions of a 17-year-old. And for supporters on each side, it’s hard to imagine a more high-stakes setting than a Supreme Court confirmation battle. It’s a setting in which there were inadequate processes for reaching the truth and heavy disincentives for trying to find it.
Of course, victims may see the skepticism of many members of Congress and of the public and think they, too, will not be believed. With that said, Ford inspired people to be witnesses to their own truth, outcome be damned. Even if victims can’t get accountability, they can tell their stories. And that has value. It’s a notion that I think will continue, regardless of Kavanaugh’s confirmation.
What message does the FBI’s restricted investigation send to victims?
Supreme Court nominations are sui generis, so I hope that some victims will see this not as a failed criminal proceeding, because it’s not a process that’s designed to get accountability or justice. It’s a political determination of someone’s fitness for the Supreme Court. It doesn’t necessarily tell us what other actors would do or how other institutions would function in a similar situation.
Taken by itself, it’s not a particularly helpful or hopeful message for victims. But while Kavanaugh’s hearings were proceeding, there was the sentencing of Bill Cosby on three counts of aggravated indecent sexual assault. There was the 10-city McDonald’s #MeToo walkout to protest sexual harassment on the job. There was this flood of women coming forward with their own #MeToo stories. A Yazidi activist and a Congolese doctor won the 2018 Nobel peace prize for their campaigns to end mass rape as a weapon of war.
The #MeToo movement itself is only a year old. The floodgates really opened up after the Harvey Weinstein allegations were published, but I believe Ford has inspired a second wave. It’s possible that the Kavanaugh controversy has a chilling effect, but I hope victims see it as the last gasp of a bygone era.
How would Kavanaugh’s fellow justices likely regard him, given the acrimony of the confirmation proceedings? Are we careening toward a legitimacy crisis with the Supreme Court, where justices are seen as little more than political operatives in robes?
The Supreme Court has an extremely strong collegiality norm that’s been in place for a long time, and I think that that norm will ultimately hold. My suspicion is, despite what any of their personal beliefs may be about Kavanaugh’s credibility or behavior, he will be extended that same collegiality, particularly because of the absence of a formal finding of wrongdoing. And it would be the women on the court who would ultimately be punished for not being collegial to the suspected-but-not-proven wrongdoer.
We were careening toward a legitimacy crisis before Kavanaugh was confirmed, and we’ll still be heading in that direction. If he’s confirmed, as is looking increasingly likely, Democrats will say the FBI didn’t dig hard enough and that Republican senators had made up their mind well before Ford’s testimony. If he’s not confirmed, Republicans will say Democrats never considered him on his merits because they didn’t like his judicial philosophy. They’ll further argue that Democrats smeared him, denied him due process and were willing to do anything to take him down.
Some real damage has been done here, no matter the outcome. We’re experiencing a distinctly painful moment in American history right now.
Editor’s note: To contact Lesley Wexler, call 217-244-3449; email lmwexler@illinois.edu.
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