I litigate employment discrimination cases, particularly cases that involve discrimination and sexual harassment against women.The power of the #MeToo movement is the change it has been making in our culture of silence around sexual harassment, sending these claims out into the open and to stop the silence. Sexual harassment claims — and really any discrimination claims — are rife with “he said, she said” accusations. The cases are almost always based upon circumstantial evidence. The most comprehensive information is almost always in the possession of the employer, and employers do not generally release information willingly. Employers almost always seek to dismiss the case without a trial for lack of evidence of discrimination. And they win at high rates, as my colleagues, Amanda Farahany and Tanya McAdams, have shown.
During the Senate Judiciary Committee hearing Thursday, it was obvious Judge Brett Kavanaugh and the Republicans knew that more information, such as an FBI investigation as well as testimony from Kavanaugh’s friend, Mark Judge, could influence the decision on Kavanaugh’s fitness for the bench, so they blocked that from happening. Christine Blasey Ford described a crime, and the allegations of sexual misconduct from Deborah Ramirez and Julie Swetnick paint a picture of behavior that demonstrates Kavanaugh had a profoundly disrespectful view of women, at least at one point in his life. A Supreme Court seat requires that he exercise his judgment to make calls about the meaning of the law. His background and character inform how he will use that judgment and how he will treat the issues that appear before him. Evaluating his behavior years ago, along with any evolution that occurred, is important for assessing how well he will judge claims that affect women.
Kavanaugh’s response started off with a statement that sexual assault was serious. But how can we take that statement seriously? Immediately after he made it, he called the inquiry into Ford’s claims a “smear” campaign, implying that her claims had no merit. He was arrogant and flippant in his responses to questions — when he deigned to answer them — and at one point called the hearing a “disgrace,” seemingly aghast at the temerity of anyone to question his qualifications.
Actions speak louder than words, and his actions during his testimony do not say he takes allegations of sexual assault seriously. He has the right to defend himself, but he went beyond simply defending himself. Although he tried to deflect the impression that he was demeaning his accuser, that was precisely what he was doing.
In his testimony, Kavanaugh pointed repeatedly to a statement from Mark Judge as adequate evidence to support his innocence. But that statement was from Judge’s lawyer, and the evidence that could have fleshed out the merits was largely excluded. Yet Kavanaugh insisted over and over that the committee should do its investigation based upon the evidence it had, implying that he thought it had adequate evidence to make its assessment of his fitness to be a judge.
The lack of an FBI investigation and direct statements from Judge raises troubling questions about Kavanaugh views inequities of power. If the reliance on a secondhand statement from Judge’s lawyer — with no testimony from Judge himself — is what Kavanaugh thinks is an adequate basis upon which to make a decision, he leaves troubling questions about whether he will fairly act as a gatekeeper to send discrimination claims to trial, or any claim based upon circumstantial evidence where the parties have disproportionate access to the important information. I cannot see how he will ever view a circumstantial evidence case of discrimination or sexual harassment as having enough merit to get to a trial, the arena where employers can truly be held accountable. His presentation before the Judiciary Committee suggests that he will be arrogant and dismissive of claims he deems unworthy, making it particularly disturbing that Ford’s claims are about gender-based violence.
Kavanaugh seeks to be a judge on the highest court in the nation, a position that will give him significant power to shape the law, affecting the lives of many people. But everything in his performance before the Judiciary Committee shows him to be unfit to serve on the highest bench in the land.
Rebecca G. Pontikes is an employment attorney who practices at Pontikes Law LLC, www.pontikeslawllc.com, in Boston.