From Ford to Flake

For anyone who has ever ignored, or not understood, the importance of the power of the majority to American politics, last Thursday’s Senate Judiciary Committee hearing on the confirmation of Judge Brett Kavanaugh, and aftermath, was the proverbial “teachable moment.” We should all pay attention to the abuse of power exhibited by the majority, the injection of fairness into the process by a public institution, the ability of a member of the majority to influence a predetermined outcome, and, of course, the courage of a witness to subject herself to unreasonable scrutiny to speak truth to power.

Clearly, the Republican majority and its committee chair, Chuck Grassley, wanted no part of a fair hearing informed by corroborating witnesses and an FBI investigation. What they wanted was to escape the hearing without appearing to bully and demean a female accusing their nominee of a disqualifying sexual act and move as quickly as possible to a vote. In this, they almost succeeded. Their unprecedented ceding of authority to question Dr. Christine Blasey Ford to a professional female sexual abuse prosecutor avoided the spectacle of 11 males cross examining Ford. However, it failed. Her testimony was believable, damaging and compelling.

In understanding how power in this kind of setting works, it’s essential to recognize that both the majority and the minority developed and repetitiously employed talking points (tactics) for public consumption. The Democrats repetitiously argued for an independent FBI investigation, the Republicans that the Democrats waiting until the 11th hour to divulge Dr. Ford’s allegations was a sham political maneuver designed to “smear” Judge Kavanaugh.

After Ford’s testimony it seemed that the Kavanaugh nomination was in serious trouble. Then Judge Kavanaugh gave his belligerent opening statement and hostile and disrespectful answers to Democratic questions, digging so deep into partisan rhetoric as to bring up the “Clinton Revenge” and the 2016 election as reasons his fitness for elevation, rather than an allegation of attempted rape, was being questioned. This coupled with Senator Graham’s tirade against the Democrats relying on the majority’s talking points of an 11th hour politically motivated smear campaign turned the tide. The Republican majority, already committed to Judge Kavanaugh’s confirmation irrespective of Dr. Ford’s testimony, rallied around both the judge’s and the senator’s fiery confrontational rhetoric. The smart money shifted to an easy elevation from the committee to the full Senate and confirmation.

Dr. Ford’s persuasive testimony juxtaposed to Judge Kavanaugh’s exhibition of lack of judicial temperament should have disqualified him from further consideration. The fact that not only did it not but that it was used to position his nomination toward confirmation is the insight into how power is yielded by the majority in our political system. Armed with “strong” talking points for the public, the party with the majority has both the numbers (votes) and power to subpoena or not to subpoena witnesses, compel testimony, and require FBI investigations. Generally speaking, in our current atmosphere of tribal politics, the only antidote available to the minority is an appeal to the public.

The appeal to the public for an FBI investigation worked in the form of the American Bar Association (ABA). The ABA, which had previously given Kavanaugh its highest qualified rating, called for a “time out” and an FBI investigation. Clearly this would not have happened without Dr. Ford’s credible testimony. However, it was the unexpected act of conscious by Senator Jeff Flake that caused the current pause in the rush to confirmation. Despite being cornered by two sexual assault victims in an elevator, he was clearly having a hard time with the discrepancy between the testimony of the two witnesses. His unfamiliar act, in these contentious political times, of reaching across the aisle to Senator Coons was as surprising as it is hopeful.

Naked power it seems can be checked if not stopped by a courageous witness challenging it, a prestigious organization with public stature like the ABA intervening, and the remarkable leadership of a member of the majority willing to check his party’s rush to judgment. Regardless of what happens, Dr. Ford, Senator Flake and the ABA have provided us with a remedy to the hopeless cycle of partisan politics we now find ourselves enmeshed in. Perhaps this can provide a new beginning for politics in America.