Chairman Charles Grassley, R-Iowa, left, chats with Sen. Dianne Feinstein, D-California, right. Photo: Diego M. Radzinschi /ALM

The public showdown Thursday between Christine Blasey Ford and U.S. Supreme Court nominee Brett Kavanaugh will not mirror a criminal investigation and trial, with its standards of evidence and strict procedures. The hearing instead, in a room on Capitol Hill, will grapple with questions of credibility, character and, for some, a larger cultural movement.

Members of the Senate Judiciary Committee will weigh Ford’s claim that Kavanaugh sexually assaulted her in the 1980s at a party during their high school years. The Republican and Democratic members of the committee are judging credibility as they assess whether Kavanaugh is qualified to serve on the Supreme Court.

“The political process is not a legal one,” said Jade Lambert, a government investigations partner at King & Spalding in Chicago. “That poses a lot of questions about what the framework is and who is the finder of fact. Who is the jury, who are the witnesses, who will be advocating for them? What is the standard of proof? If this were a legal case there would be some standard.”

There’s a wide divide between a public hearing showcasing Ford’s claims and Kavanaugh’s denial and an investigation into sensitive matters such as sexual assault allegations, according to management-side lawyers, white-collar practitioners and civil rights attorneys who are called on to review employment practices and participate in internal investigations—ever more in the #MeToo movement. In the U.S. Senate, there is no standard for such an investigation.

Senate Republican leaders said Monday they had hired a yet-unnamed experienced sex-crimes prosecutor to question Ford and Kavanaugh. That immediately drew consternation from the lawyers who are advising Ford, a psychology professor in California.

“This is not a criminal trial for which the involvement of an experienced sex crimes prosecutor would be appropriate. Neither Dr. Blasey Ford nor Judge Kavanaugh is on trial. The goal should be to develop the relevant facts, not try a case,” Michael Bromwich, a lawyer for Ford, said in a letter Monday to Senate Judiciary Chairman Chuck Grassley, R-Iowa.

Ford claims that Kavanaugh sexually assaulted her in the 1980s when they were in high school in suburban Maryland. Ford claimed Kavanaugh pinned her to a bed, tried to remove her clothes and covered her mouth with his hand to prevent her from screaming.

Kavanaugh has denied the allegations from Ford and another woman, former Yale University classmate Deborah Ramirez, who says Kavanaugh exposed himself to her at a party. Kavanaugh told Fox News on Monday that he would not seek to withdraw his nomination over what he called false claims.

Senate Republicans have asked Ford’s lawyers and Kavanaugh’s attorneys—he’s represented by Beth Wilkinson of Washington’s Wilkinson Walsh + Eskovitz—to provide any written or electronic materials relating to Ford’s claims. Written testimony is expected to be provided by Wednesday morning. The judiciary committee is only expecting to hear from Ford and Kavanaugh on Thursday.

Caprice Roberts, a law professor in Florida, described the upcoming Kavanaugh-Ford hearing as “less like a trial and more like a high-stakes job interview.”

No Wiggle Room for Kavanaugh

Kavanaugh, soon after Ford spoke publicly in a Washington Post interview about her claims, issued a statement that said he “categorically and unequivocally” denied Ford’s allegations. He has since repeated that assertion.

“I am not questioning and have not questioned that perhaps Dr. Ford at some point in her life was sexually assaulted by someone in some place. But what I know is I’ve never sexually assaulted anyone in high school or at any time in my life,” Kavanaugh told Fox News on Monday.

That doesn’t leave him any wiggle room for questions about his memory. “The senators will focus on the scope of his denial,” said Pat Lundvall, a partner at McDonald Carano and chair of the firm’s litigation practice group and labor and employment team. She continued: “The trouble spots for Kavanaugh are not so much that this particular event may have happened, but whether he has misrepresented or lied about the event and whether that has fed into other lies.”

Employment lawyers are keen to how a person’s shifting body language and changes in tone might themselves be revealing—how those mannerisms could suggest that a person, sitting for a deposition, for example, isn’t perhaps being forthright.

Lundvall said that at the Kavanaugh-Ford hearing, she would watch for any changes in body language compared to the first time the nominee testified at the start of his confirmation proceedings. Ford’s claim didn’t publicly surface until after the proceedings closed.

Tom Spiggle, an employment lawyer in Virginia, said the Ford-Kavanaugh proceedings could straddle both worlds—political and legal—to the detriment of actually knowing what may or may not have happened years ago.

“What I fear will happen is that we will get the worst of both worlds, something that looks like a trial but has no real characteristics that provide a full investigation of what happened,” Spiggle said. “It will be a spectacle with both sides trying to score political points without helping the country.”

#MeToo: The New York magazine report published Feb. 18 not only revisited allegations brought by Anita Hill in Justice Thomas’ 1991 confirmation hearing and that of four other women who would have testified if subpoenaed or otherwise given the opportunity, but also raised the subject of impeachment. The report examines how women's voices were silenced and the evolving understanding of workplace harm resulting from sexual harassment. Anita Hill testifies at the Clarence Thomas confirmation hearing in 1991.

Anita Hill, the law professor who made sexual harassment claims against Clarence Thomas in 1991 at his confirmation hearing, lamented recently that the “Senate Judiciary Committee still lacks a protocol for vetting sexual harassment and assault claims.”

Numerous witnesses testified at the Thomas confirmation hearing in 1991, where Hill lodged claims that her former boss sexually harassed her in the workplace. Thomas, who denied the claims, was confirmed by a narrow margin.

Kavanaugh on Monday resisted questions about what he thought might be motivating Ford and Ramirez, who aired her claims in a New Yorker report a few days ago. President Donald Trump calls the sexual misconduct claims “politics,” and Senate Republican leaders see the claims as part of a “smear” campaign.

The timing of Ford’s claims come amid the #MeToo movement, where allegations against men of sexual abuse and harassment have forced broad conversations about power imbalances in workplaces across America and society at large.

“I hope we have learned something in the years since Anita Hill and since the era of #MeToo,” said Roberta Kaplan, founding partner at Kaplan Hecker & Fink, who litigates both commercial and civil rights cases. “I think our society is in a different place and we understand how difficult and how brave it is for women like Dr. Ford to speak up.”

Lambert of King & Spalding predicted grandstanding on both sides of the Senate aisle, and that “it will be interesting on both sides to see if there is any sense of anything resembling a search for the truth.”

 

Read more:

3 Things Kavanaugh Didn’t Want to Talk About in Fox News Interview

Nearly 2,000 Female Lawyers Voice Support for Christine Blasey Ford

Veteran Prosecutor Michael Bromwich Joins Kavanaugh Accuser’s Legal Team

Female Clerks Stand by Kavanaugh Despite Assault Allegation

Lawyer Who Claimed Clarence Thomas Groped Her Reflects on Personal Toll