Kavanaugh Ford fear of flying
Foreign Affairs

Kavanaugh confirmation: somebody was lying about the fear of flying – and that lie could change legal history

For the past few days I have been thinking about the Senate hearing into the nomination of Brett Kavanaugh to the Supreme Court. As I looked forward to it, in both sense of the word, I had a sense that somehow it had some parallel with our own visceral divisions over Brexit.

When I was a practising lawyer advocate, I developed a confidence that if I prepared well, read the papers, mulled the issues, and then stopped to relax, somehow the mind would do its back-office duties and put me on the right track. So it proved on this occasion as I listened to Leonard Cohen’s hauntingly beautiful song ‘Alexandra Leaving’, sung by his co-writer and muse Sharon Robinson. It tells of love departing, separation and loss, and when I heard the words ‘Do not stoop to strategies like this’, I suddenly saw what I was struggling to articulate about the two countries and peoples I know and love.

The entry into the old EEC was contested and determined in the 1960s and 70s every bit as strongly and passionately as we contested the 2016 EU Referendum. Edward Heath, Roy Hattersley, Jeremy Thorpe and Dr David Owen passionately argued the economic case for Remain. What today’s young Remainers may not appreciate is that the opposition was significantly presented by left-wing stalwarts like Barbara Castle, Eric Heffer and Peter Shore.

What was even more striking was the defence of British sovereignty advanced passionately by Michael Foot, Tony Benn and their friend Enoch Powell. The latter name will probably shock Generation Snowflake, but it was true. Back in those days, there were alliances and open friendships between those who were politically poles apart. There was sincere difference but also sincere respect, which we see less often now.

It is tragic that so many on the losing sides now take as a first position that the process by which they lost was wrong: the winners lied, were stupid or bigoted, and flowing inevitably from this, the result – whether a Trump victory or Brexit – can be overturned because of the inherent virtue on ‘my’ side.

Momentum supporters may be shocked to hear that such mutual respect and fraternisation was once considered the norm. Some brag that they have ‘Never kissed a Tory’, and whilst I cannot testify to the cross-bench intimacies of that time, it is well known that Tony Benn attended Enoch Powell’s funeral. Opponents could be friends; they might be wrong but they were not presented as evil, which is too often the case today.

It probably helped that so many MPs had been through the war together. Conservatives might not like Denis Healey threatening to squeeze the rich until the pips squeak, but they knew he had been a beach marshall at the Anzio landings and so was nevertheless ‘one of them’. Equally, Airey Neave was an early supporter of Margaret Thatcher, but his escape from Colditz Castle guaranteed him legendary status whatever his politics – until he was blown up by Jeremy Corbyn’s friends in the IRA.

Previously there was a sense of honour, a concept of losing gracefully and treating a vanquished foe with respect and humanity. Perhaps it was a hangover from service days, but it mattered nonetheless. Not long before the 1975 EEC referendum the sexual scandal of John Profumo compelled him to withdraw from Parliament in shame, never to return. It was a necessary fall from grace, but many of his opponents were not pleased to watch his fall. Happily, he rehabilitated his good name over many years quietly performing charitable works. Today he would have claimed sex addiction, hired a PR specialist and been back within the year. And that’s where Leonard Cohen comes back in.

Like many artists he was not a conventionally moral man, yet he offered us insights into human weakness and fragility. ‘Do not stoop to strategies like this’ speaks equally to public misconduct as to personal tragedy. Sadly, we have come to embrace dishonourable strategies all too easily in our public life. There ought to be things we do not do; places we do not go; spiteful impulses to which we do not give liberty.

If you asked me where things went wrong, I would point you to Saul Alinski and his seminal work on left-wing activism – ‘Rules for Radicals’. If you have not read them they will explain to you much of what you need to know about the corruption of public life. It was written for the Left, though it would be naive to suggest that its successes has not been emulated across the political spectrum. Read them and you will recognise much of the poison which has corrupted the body politic

  1. “Power is not only what you have but what the enemy thinks you have.”
  2. “Never go outside the expertise of your people.”
  3. “Whenever possible go outside the expertise of the enemy.”
  4. “Make the enemy live up to its own book of rules.”
  5. “Ridicule is man’s most potent weapon.”
  6. “A good tactic is one your people enjoy.”
  7. “A tactic that drags on too long becomes a drag.”
  8. “Keep the pressure on.”
  9. “The threat is usually more terrifying than the thing itself.”
  10. “The major premise for tactics is the development of operations that will maintain a constant pressure upon the opposition.”
  11. “If you push a negative hard and deep enough it will break through into its counterside”
  12. “The price of a successful attack is a constructive alternative.”
  13. “Pick the target, freeze it, personalize it, and polarize it.”

Note well the opening. This is not about fairness; not about behaving well, or with integrity. It is all predicated upon ‘our’ virtue, overcoming the enemy, and the end justifying the means.

It is these rules which explain why #BlackLivesMatter gave way to #RhodesMustFall, and why we currently have a focus on #MeToo. It also explains why anyone standing against the radical agenda in America can now, apparently, expect to be harried out of restaurants by a masked militia of the self-righteous. It explains why societies on both sides of the Atlantic have become so distressingly polarised. It also explains why we need to understand how these matters work, and to stand up for the old way of doing things, where ideas were contested but people could remain respectful. However much I may ‘feel’ I am right, I might be wrong, and should moderate what I do within the bounds of civilised society so we can live together afterwards with some element of mutual regard and respect.

The bitter controversies over the confirmation of Brett Kavanaugh to the US Supreme Court look extreme, but they have their counterpart over here with Brexit. In both cases, the losers want to redefine the rules, impugn the motives of those they disagree with, delay the process to political advantage, and claim intellectual and moral superiority over their opponents.

I came across an apposite quotation from philosopher Roger Scruton: “Democracy arises when people are prepared to renounce their political desires for the sake of agreement with those who do not share them.” It does not easily fit onto a placard, yet it has a fundamental wisdom which we need to assert, and, most especially, we need to teach our young.

In the US context, we probably need to extend that thought, and assert that functional judicial systems are built on rules which exist for good reasons in the abstract, and ought not to be laid aside for partisan reasons in any particular case. Uncomfortable though it may be, ‘hard cases make bad law’.

In a case of trivial topicality, we may not like the fact that David Beckham ‘got off on a technicality’ in his speeding case, but as his lawyer correctly observed, whether we approve of outcomes or not, the same law does – and should – apply to everyone in the same circumstances. If we want the law changed, Parliament must do it. It is not for judges to legislate from the bench when the law is enacted in plain terms.

At the other end of the spectrum, if police or the military ‘bend’ or break the rules in cases of terrorism, you will find a queue of ‘progressives’ passionately asserting that if an application of Human Rights Law enables a potential suicide bomber to walk free, so be it; it is a price worth paying. The same applies for David Beckham – or Brett Kavanaugh.

These are not easy matters, but some of us are still able to see the humanity of our political opponents, to respect that the presumption of innocence is worth defending, and to require compelling evidence to be presented in support of allegations. The same rules, presumptions and judicial standards should apply whether one is a janitor, a judge, or even a dead bishop.

As I write, I am listening to an activist on the radio seeking to end ‘a culture of women being treated as liars’. They are not. They are treated precisely as any other person within a system of law that tries to be blind to everything but the facts. This is why the divisive hashtags #IBelieveHim and #IBelieveHer are so toxic. Your or my emotional response to how an individual presents their narrative must never be wholly determinative. It is one of the first things they teach you at law school. Some people present a lie very well; some tell the truth very badly. The opinion of the mob is fickle and can be manipulated as anyone who has read the story of Holy Week will appreciate.

In the Kavanaugh case, the accuser Christine Blasey Ford makes clear that after 35 years she came forward because she made a calculation that it was her civic duty to do so. She weighed the effects on her and her family against other considerations. We know she fears that the legacy of Roe v Wade might be at risk if this judge is confirmed, and that consequently she pulled on her pussy hat and decided it was her duty to go into battle. She chose to engage with political partisans rather than explore other more neutral avenues to air her allegations. For many weeks they delayed introducing the issue, only doing so at the very last minute, a time best calculated to derail the hearing and prevent the confirmation of this judge whose record on the bench and in his life have been otherwise unimpeachable.

Unsurprisingly, after 35 years, supporting evidence is thin on the ground. That is nobody’s fault and a consequence of her earlier inaction, which might be explained or understandable but nevertheless is a problem entirely arising out of her actions and nobody else’s. She named four people who might support her account. Not one of them did in the slightest degree. A number of folk have written letters in support, but all represented opinion rather than evidence. In somewhat unsatisfactory circumstances, a polygraph test was taken. These are not admitted as evidence in UK courts because they are suspect. The most distinguished of American academic lawyers, Alan Dershowitz – a life-long Democrat – dismissed such tests test with the words: “It is pseudoscience in the service of an agenda-driven bias. That’s why a fair and neutral process is required.”

Brett Kavanaugh prayed in aid the ordinary presumptions afforded to every citizen. He pointed out that there is absolutely no corroborative evidence (the gold standard of proving historic cases) and that without a time, date or place, he was given no chance to refute this most damaging of allegations. Happily for him, he doesn’t have to. It is another basic principle that ‘S/he who asserts must prove’.

Not only did Christine Blasey Ford have no evidence to help place the abuse, Brett Kavanaugh had sound evidence of where he was at various times. He was equipped to answer allegations, but nothing helpfully specific was advanced. Had the accuser had her case presented in a proper, timely way, she might have had the dignity of departing with the simple explanation that an ancient allegation has notorious difficulty in clearing a necessarily high bar. There is no shame in trying and failing. Sadly, she allowed herself to be used for political purposes, and now half the nation looks down on her. If the system had been applied and respected, this would not have happened. Our opinions of her should remain private. She tried to assert a case without supportive facts, and failed. Move on.

She was ill-served by enmeshing herself with politically motivated ‘champions’. They apparently suppressed her complaint, the better to cause procedural mayhem. They then leaked her name to the media without her consent, and, moreover, they appear (on her evidence) not to have conveyed to her the offer for the Committee to fly to her home and interview her in private and spare her the public circus, the better to signal their political virtue to the electorate.

There is one unlikely heroine in the story – the low-key Deputy Public Prosecutor Rachel Mitchell, engaged to ask questions of the complainant. I watched my Twitter feed as Republican supporters raged against her ‘ineffectiveness’ as she went about her task in a very quiet, professional, affable way, talking to the complainant respectfully and just getting the facts on the record. I sat appreciating the groundwork she was patiently putting in place. The map of the area was a good illustration, fixing in one’s mind that the complainant had no idea where this was supposed to have happened and, having had but one beer, there was a puzzling lack of reason for not knowing whose house she went to, how she got there, or how she got home. It’s the detail that convinces, but the best part of her work was that relating to the complainant’s much publicised reason for not attending the hearing as scheduled on Monday.

In the preceding week it had been widely reported that the hearing would have to be delayed to accommodate her aversion to aviation. The Committee promptly offered to fly to her, but received no reply. She made it to the hearing on Thursday, and the methodical Ms Mitchell gently took her through her professional and holiday travels – to Hawaii, Costa Rica, the South Pacific and French Polynesia. It was like watching a marksman readying a rifle.

Professor Ford flies rather a lot. She was gently asked about the Committee’s offer to come to her in California, and she denied knowledge of it. Apparently she and everyone she knows were the only ones in the USA and much of the world who were unaware of the accommodation the Committee Chair Senator Grassley was prepared to offer. The offer had been routed through her attorney. Did they not pass it on?

Her lawyer swiftly whispered and Professor Ford invoked client-attorney privilege. Those who were goading Brett Kavanaugh to give them a delay and an FBI investigation refused in their turn to answer a simple question. Who was lying when they said Professor Ford could not fly? Was it her, or was it her handlers who were shaping the case against Judge Kavanaugh?

Eventually, he gave voice to his frustrations and Senator Lindsay Graham added his weight. He was outraged and explained why, openly identifying  the management of the allegations as a deliberate politically motivated hit. Professor Ford denied knowing of the offer, thus exposing her entourage as manipulative. There is a simple rule that applies here. The side that lies loses.

By giving no detail that enabled Judge Kavanaugh to falsify the allegations, his opponents simultaneously disabled themselves. There was nothing about the Judge’s evidence that could be falsified because he had so little to work with, but equally he had nothing to trip over. Yet plainly the delaying of the hearing from Monday to Thursday had been secured on the basis of a clear falsehood emanating from the complainant’s camp.

In 1973 Erica Jong wrote a seminal novel of the feminist movement. How ironical it will be if ‘Fear of Flying’ should prove to be the lie on which Roe v Wade founders.