He Said, She Said: A Call for Trauma-Informed Procedures During Supreme Court Confirmation Hearings
By Dani Parker, CLS ’20
On September 27, 2018, Dr. Christine Blasey Ford testified in front of the Senate Judiciary Committee that she had been sexually assaulted at a high-school party by then D.C. Circuit Judge and Supreme Court nominee, Brett Kavanaugh.[1]Dr. Ford was initially hesitant to testify front of the committee without a preceding FBI investigation, but she agreed to participate in a public hearing after Senate Republicans insisted upon continuing with the nominating process without her testimony.[2]This is not the first time assault allegations have surfaced amid Supreme Court nominations. In October 1991, Anita Hill testified in front of the Senate Judiciary Committee to sexual harassment by then Supreme Court Nominee Clarence Thomas.[3]
Allegations by Ms. Hill and Dr. Ford and the corresponding congressional hearings highlight the inadequacy of Senate procedures to appropriately account for sexual assault allegations that arise during the Supreme Court confirmation process. In this high-stakes context, such inadequate process may result in the appointment of individuals who are unsuited to sit on the nation’s highest court. As such, the Senate should employ research-based procedures for addressing sexual assault allegations that arise during the Supreme Court nomination process.
The Problem
Though its role is mostly customary, the modern Senate Judiciary Committee conducts pre-hearing investigations, holds public hearings, and makes a recommendation to the full Senate body.[4]While it normally conducts an extensive background investigation, there are no set guidelines for addressing the results of these efforts.[5]Typically, the Committee holds public hearings to discuss its investigative findings, but this practice results from custom and not rule.[6]Additionally, there are no rules governing what topics public hearings should concern.[7]Though politically unlikely, the Senate could complete the nomination process without formally considering or acknowledging sexual assault allegations.[8]
While the Judiciary Committee did choose to address such allegations during both the Kavanaugh and Thomas proceedings, the resulting publically televised hearings provided a hostile forum for serious consideration of the alleged victims’ claims. According to trauma research, neurobiological phenomena, “can affect the survivor’s ability to give a coherent, consistent account of their experiences.”[9]This is especially true when a significant amount of time exists between the alleged events and the victim’s testimony.[10]Both Dr. Ford and Ms. Hill came forward several years after their alleged assaults. Both sets of hearings pitted the testimony of the accuser against the word of the nominee and did not require additional investigation or testimony[11]. In both cases, televised hearings focused mainly on the words of the opposing parties and lacked an extensive standard for investigation. These methods place a scientifically inappropriate burden on the alleged victims’ memory, encouraging further political polarization instead of legitimate truth-finding.
Recommendation
To ensure comprehensive evaluation of Supreme Court nominees, the Senate Judiciary Committee should establish prescribed policies for addressing sexual assault nominations. In order to best facilitate truth-telling, these guidelines should be trauma-informed and should mandate research-based investigations. These requirements would facilitate appropriate due diligence on the part of the President and ensure that Senators would thoroughly consider the allegations before voting. While some may view this as too invasive, society should expect nothing less for the nomination process to our nation’s highest court.
[1]Scott Detrow and Danielle Kurtzleben, Kavanaugh and Christine Blasey Ford Testify Before Senate Judiciary Committee, N.P.R. All Things Considered (September 27, 2018),
https://www.npr.org/2018/09/27/652366140/kavanaugh-and-christine-blasey-ford-testify-before-senate-judiciary-committee
[2]Peter Baker et al., Christine Blasey Ford Wants F.B.I. to Investigate Kavanaugh Before She Testifies, N.Y. Times (September 18, 2018), https://nyti.ms/2NmMeZR.
[3]Elise Viebeck, Here’s what happened when Anita Hill testified against Clarence Thomas in 1991, Chicago Tribune (September 27, 2018), http://www.chicagotribune.com/news/nationworld/politics/ct-anita-hill-clarence-thomas-20180927-story.html.
[4]Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, Congressional Research Service Report (August 14, 2018), https://fas.org/sgp/crs/misc/R44236.pdf.
[5]Id.
[6]Id.
[7]Id.
[8]Id.
[9]Fiona Mason, Psychological Consequences of Sexual Assault, (2012), https://ac.els-cdn.com/S152169341200137X/1-s2.0-S152169341200137X-main.pdf?_tid=d4001a67-4cc1-4296-ac04-0d86dad97eea&acdnat=1538178437_a15324cf8da4dceb703153bbe2448280.
[10]Id.
[11]In fact, Anita Hill and Clarence Thomas’ testimonies popularized the phrase “he said, she said” in the context of “weighing the word of one defendant against the word of one plaintiff.” William Safire, On Language; He-Said, She Said, (April 12, 1998), https://www.nytimes.com/1998/04/12/magazine/on-language-he-said-she-said.html