What Kavanaugh is accused of is not adolescent drunken high jinks

Some defenders of Brett Kavanaugh’s nomination to the US Supreme Court have responded to the allegations that have been leveled against him by arguing, like senator Orrin Hatch does, that this was youthful behavior and that what matters is what kind of person he is now,. But it is important to realize that what is alleged is not drunken high jinks, some casual groping done at a party. What happened was attempted rape that involved isolating, overpowering, and silencing the victim. When Kavanaugh and his friend Mark Judge are said to have done is take a 15-year old girl Christine Blasey Ford to a closed room and then try to rip off her clothes in order to rape her. It was only her taking a brief opportunity of confusion to lock herself in a bathroom that prevented the rape from taking place. Kavanaugh was 17 years old at the time and in the US many 17-year olds are tried as adults if the crime is serious enough, though whether that is a good thing is a debate for another place and time.

So trying to trivialize the allegations as excusable youthful male misbehavior is wrong. Young men undoubtedly do stupid things but attempted rape goes way beyond the normal boundaries that are covered by that escape clause. Furthermore, Kavanaugh himself has closed that possible exit hatch. When this story first emerged he did not say, for example, that while he does not remember this incident in particular because he may have been seriously drunk at the time, if he did do something that may have hurt her, then he apologizes. Instead he has categorically denied that anything of that kind happened or that he has met the accuser at all. As Charles P. Pierce explains, a categorical denial is dangerous territory and is usually something that people avoid since it leaves little room for backtracking later if new information emerges that contradicts even a part of the defense.

In short, if Ford’s claims are seen as credible, then Kavanaugh is lying now and that should disqualify him. I think the accuser is credible. Apart from the fact that she told her therapist and husband about this back in 2012, bringing an allegation of sexual harassment, abuse, and attempted rape against powerful figures is always very difficult for the accuser. It is hard to imagine why she would risk her comfortable, successful, and seemingly placid personal and professional life to be thrust into this maelstrom by making a false allegation that could ruin her life forever. The inevitable smear campaigns against her are already in full swing as you can see here and here.

Interestingly, the principal of the private girls school Ford attended at the time of the event and 200 of her fellow alumnae have come out in support of her, though this does not prove anything as neither does the letter signed by 65 women in support of Kavanuagh before this story broke. But it is very disturbing that the alumnae say that this kind of attack on them was not uncommon.

Christine Blasey Ford grew up in the Maryland suburbs of Washington, D.C., and attended Holton-Arms School, a private preparatory school in Bethesda for girls in third through 12th grade.

The school’s head, Susanna Jones, released a statement Sunday calling it “imperative” that Ford’s story be heard. “As a school that empowers women to use their voices, we are proud of this alumna for using hers,” Jones said.

A draft letter, appearing to be signed by more than 200 Holton-Arms alumnae from 1967 to 2018, called for an investigation into the allegation and called Ford’s experience one that is “all too consistent with stories we heard and lived while attending Holton. Many of us are survivors ourselves.”

Ryan Grim of The Intercept was the one who on September 12 broke the story of the Ford letter to California senator Diane Feinstein that forced this issue into the open. He now has another story about another letter that was sent at the same time to both Feinstein and the Republican chair of the senate judiciary committee Chuck Grassley by a lawyer Cyrus Sanai, apparently detailing charges against Kavanaugh about what he knew about Californian Supreme Court Ninth Circuit Court of Appeals justice Alex Kosinski’s behavior. Kosinski was forced to retire earlier this year after reports emerged of abusive behavior by him, such as forcing his subordinates to view pornography on his computer. Kavanaugh was once a clerk for Kosinski and later Kosinski’s son clerked for Kavanaugh. During his confirmation hearings, Kavanaugh said that he was completely unaware of Kosinski’s behavior and was stunned to learn about it. Sanai says that those denials were false. As Grim reports,

Sanai is the California attorney who blew the whistle on Kozinski years before a series of articles in the Washington Post in December finally brought about the resignation of the former chief judge of the 9th Circuit Court over sexual harassment revelations.

Sanai told The Intercept that at least two federal employees had information to provide the committee about Kavanaugh, including one who spoke directly with Kavanaugh about it. Sanai said that he did not hold Kavanaugh responsible for Kozinski’s behavior, but rather that his claim of ignorance was not credible and could be contradicted by witnesses. Kavanaugh’s credibility has become a central issue in his confirmation, as he has “unequivocally” denied allegations that he sexually assaulted Christine Blasey Ford when both were in high school.

Where this new story will go and whether these people will also be called as witnesses remains to be seen.

Thanks to commenter deepak shetty, here are some professor of law from around the country weighing in on the issue.


  1. deepak shetty says

    I for one am surprised we are already onto “boys will be boys”
    Usually the “there is no proof!” or “where are the 4 male witnesses to the rape?” or “she must have asked for it so it was consensual!” drag on for a long time before we get to well he may have done it but its just boys being boys

  2. soul_biscuit says

    Small point: Judge Kozinski was a member of the U.S. Court of Appeals for the Ninth Circuit, a federal court that includes California in its territorial jurisdiction, not the California Supreme Court, a state court.

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