Christine Blasey Ford v Brett Kavanaugh: whoever wins a show trial, the rule of law loses

 Ford v Kavanaugh throws a can of petrol on the bonfire of the legalities

Tom Wolfe couldn’t have written it better. According to her testimony before the Senate judicial committee on Thursday, Christine Blasey Ford’s memory of being sexually assaulted by Brett Kavanaugh in 1982 was shared and recorded for the first time in 2012 — 30 years after the event — because she wanted her remodelled house to have two front doors. As her husband disagreed with this unconventional suggestion, the couple sought counselling. It was during the counselling that she described the assault, although Kavanaugh was not named in the therapist’s notes.

Six years later, when Kavanaugh’s name was said to be on the shortlist for the Supreme Court, she confided her story to The Washington Post and Congresswoman Anna Eshoo and then to Senator Dianne Feinstein. Six weeks after receiving a letter from Ford, Feinstein revealed its existence to other members of the committee. By some mysterious process, Ford’s name and her allegation then appeared in the press.

Finally on Thursday, after much negotiation, it happened: Ford v Kavanaugh — the personification of the schism at the heart of American life today. Not so much woman v man as Democrat v Republican.

It is true that in the past week other accusations of sexual misconduct have been levelled at Kavanaugh. But none of these stories, including Ford’s, would stand up in a court of law because there is not a shred of evidence to corroborate the recollections of those telling them.

Having watched Ford testify, I have little doubt she believes what she said is true. But as a historian who has spent many long hours interviewing people about past events, including highly personal matters, I do not regard that as good enough to destroy the reputation of a distinguished judge.

Human memory is, generally, bad at history. Were I writing Brett Kavanaugh’s biography I could not possibly depict him, on the basis of uncorroborated testimony provided long after the fact, as a man who attempted rape in his youth and lied about it later. His memory is also unlikely to be perfect. But his story — that as a young man he glugged beer and had the usual Catholic hang-ups about sex — is more plausible.

“Maybe so,” comes the response, “but the Republicans used devious delaying tactics to keep Merrick Garland off the Supreme Court.” The difference is that Garland’s reputation was not destroyed in the process.

The #MeToo movement is revolutionary feminism. Like all revolutionary movements, it favours summary justice. Since April 2017 more than 200 prominent men have been publicly accused of a sexual misdemeanour, ranging from rape to inappropriate language. A few seem likely to have committed crimes and are being prosecuted accordingly — notably the Hollywood mogul Harvey Weinstein, who denies all allegations of non-consensual sex. But #MeToo seems to have elided rape, assault, clumsy passes and banter into a single, catch-all crime. Reputations have been destroyed and careers ended. “I believe her” are the fateful words that, if uttered by enough people, perform the roles of judge and jury.

Sexual harassment is bad, no question. Yet a much bigger threat to women’s rights is largely ignored by western feminists. As my wife, Ayaan Hirsi Ali, likes to point out, verse 2:282 of the Koran states that a woman’s testimony is worth only half of a man’s testimony in court. (Some people want the opposite to apply in Ford v Kavanaugh.)

Wherever sharia is imposed — from the armed camps of Isis to the sharia courts found in Muslim-majority countries — it is women who lose out. Do Senate Democrats care? No. When my wife testified on this subject last year, they ignored her.

The character assassination of Kavanaugh is of course part of a wider campaign against Donald Trump. The evidence of the president’s groping and infidelity is undeniably abundant, but it forms only part of a much broader case against him that encompasses collusion with the Russian government, encouragement of white supremacists, sympathy for authoritarian rulers and plain incompetence.

It’s working. The Trump administration is presiding over the strongest performance by the US economy since the century began. And yet the president has the approval of only around 44% of voters and his party is widely expected to lose its majority in the lower house of Congress at the mid-term elections in early November.

For the first time in its history the United States is seriously threatened with being overtaken economically and technologically by another country. And yet when Trump seeks to check China’s rise by the few means that remain to hand, he is condemned by foreign policy experts for disrupting what they call the “liberal international order”.

International order is preferable to the alternative, obviously. The 20th century was a bloodbath. But it ended with a victory for the free world over another one-party state with a talent for stealing our intellectual property. That victory was won because the United States — regardless of which party was in power — stood firm against Soviet communism.

Whatever international order emerged from the Cold War, it deserves to be called conservative as much as liberal. It represented the triumph of the ideals of economic and political freedom — and their bedrock, the rule of law — that owe as much to Tories as to Whigs. Today, alas, we appear intent on throwing the victories of 1989 away and I do not accept that the populists of the right are solely to blame.

Let me offer two hypotheses about why we are in this mess. The first is that the world’s elite educational institutions are now so dominated by self-styled liberals and progressives that an ever-rising proportion of people in other elite institutions — business, the media, government agencies — now subscribe to all or part of their ideology.

Ask today’s graduate trainees if they think there should be limits to free speech so that people “feel safe”. Ask them if “implicit bias” is something all white men suffer from. Ask them if the achievement of “diversity” matters more than promotion on merit. The answers will mostly be yes. Campus politics is spreading. Soon you, too, will be asked to state your preferred pronouns at the start of each meeting. Perhaps you, too, will be accused of a 30-year-old sex crime.

My second hypothesis is that the rise of internet platforms such as Facebook, YouTube and Twitter has disastrously worsened the polarisation of the United States. For it is on so-called social media that the show trials of our time are now held, as anyone knows who followed Thursday’s hearing on Twitter.

The rule of law can be killed in more than one way. In liberal nightmares a despotic president sweeps aside the constitution in the manner of a Latin American caudillo. But in conservative nightmares the graduates of Yale Law School agree that social justice would be best served by discarding the presumption of innocence and relying on Twitter polls to determine guilt.

If only Tom Wolfe were still around to write The Bonfire of the Legalities.

Niall Ferguson is the Milbank Family senior fellow at the Hoover Institution, Stanford

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