I Dissent: A Comparative Analysis of Victim-Blaming in the Thomas and Kavanaugh Proceedings (p

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I Dissent:

A Comparative Analysis of Victim-Blaming in the Thomas and Kavanaugh Proceedings

Rose Genaris

Advanced Research Seminar, Legal Studies 398

Professor Joanna Grisinger

Anna Michelson

March 5, 2020

Abstract

Studies examining gender bias in the legal sphere have contended that survivors of sexual violence must present their victimhood within rigid parameters to be deemed credible. Existing literature on the Supreme Court confirmation hearings has not explored the nuanced ways in which senators on the Senate Judiciary Committee employed victim-blaming tactics in the Clarence Thomas and Brett Kavanaugh proceedings.1 This Article conducts a comparative content analysis of the Thomas and Kavanaugh hearings to determine how members of the Senate Judiciary Committee displayed gender and racial biases through rhetorical tactics and performative politics to delegitimize Hill and Ford. By attacking their credibility, asking victim-blaming questions, and blatantly sympathizing with Thomas and Kavanaugh, senators doubly victimized Hill and Ford. This Article contributes to broader scholarship on how patriarchal social consciousness permeates Supreme Court confirmation hearings in a gendered and racial manner.

1 While literature examining the proceedings refers to them as the Thomas-Hill and Kavanaugh-Ford proceedings, this thesis intentionally departs from this precedent. By placing the names in such close proximity, it engages in a form of rhetorical violence. I therefore refer to the proceedings as the Thomas and Kavanaugh proceedings.

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Introduction

Sexual violence is ever-present in the patriarchal society upon which the United States

was founded. In 1964, the Civil Rights Act prohibited “discrimination on the basis of gender in employment.”2 However, it was not until the 1980s that courts “began to interpret sexual

harassment,” a form of sexual violence, “as conduct actionable under Title VII of the Civil Rights Act of 1964.”3

In 1991, Professor Anita Hill, a law professor at the University of Oklahoma, alleged that

Supreme Court nominee Clarence Thomas, for whom she worked as an aid in the Office for Civil Rights at the U.S. Department of Education, sexually harassed her. 4 Given the severe nature of

these allegations, the Senate Judiciary Committee commenced hearings. Ultimately, the Senate Judiciary Committee failed to believe Hill and ensured Thomas’s Supreme Court confirmation.5

Twenty-seven years later, the press leaked Dr. Christine Blasey Ford’s allegations that Supreme

Court nominee Brett Kavanaugh sexually assaulted her in high school. Although the Senate

Judiciary Committee held a hearing, it, once again, dismissed a survivor’s compelling testimony and safeguarded Kavanaugh’s confirmation.6

Given the incontrovertible parallels between these hearings, this Article compares the

Thomas and Kavanaugh confirmation hearings to determine how members of the Senate Judiciary Committee7 employed victim-blaming8 biases, ultimately discrediting the compelling

2 Nancy Kolman et al., A Report on Power and Control, 20. 3 Kolman et al., 20. Sexual harassment is defined as “discriminatory treatment of a sexual nature in the workplace. ” 4 Stephen John Morewitz, “Chapter 10: Thomas-Hill, Packwood, & Clinton-Jones Sexual Harassment Scandals, ” in Sexual Harassment & Social Change inAmerican Society (San Francisco:Austin & Winfield, 1996), 379. Upon hearing Hill’s allegations, “Senator Metzenbaum reportedly told a Time magazine reporter, Hays Gorey, that if Ms. Hill’s accusations constituted sexual harassment then fifty percent of the senators on the Hill could be charged with making objectionable sexual advances. ” 5 For a senate vote summary on the nomination of Clarence Thomas, seeAppendix B. 6 For a senate vote summary on the nomination of Brett Kavanaugh, seeAppendix C. 7 For a list of senators who sat on the U.S. Committee on the Judiciary during the Thomas and Kavanaugh proceedings, seeAppendixA. 8 KathleenA. Fox and Carrie L Cook, “Is Knowledge Power? The Effects of a Victimology Course on Victim Blaming. " Journal of Interpersonal Violence 26, no. 17 (2011): 3407. https://doi-org/10.1177/0886260511403752.

PAGE 95

testimony of both Hill and Ford. Though much scholarship examines the way in which

patriarchal norms and victim-blaming stereotypes impact the perceived credibility of survivors of

sexual violence, minimal scholarship has applied these phenomena to Supreme Court

confirmation hearings. This Article specifically examines how patriarchal social consciousness

permeates congressional behavior—specifically the rhetorical and political tactics employed by

the senators on the Senate Judiciary Committee—in a gendered and racial manner.

To analyze the Thomas and Kavanaugh hearings, I read and watched both proceedings to

conduct a comparative review. I found that senators employed victim-blaming tactics by

assigning blame to the survivor, attacking her credibility, explicitly sympathizing with the nominee, and articulating that the survivor bore the burden of proof.9 By outlining how

patriarchal social consciousness manifested in the Thomas and Kavanaugh hearings, this Article

outlines the prejudicial and demeaning ways in which Hill and Ford were treated to contribute to

the broader dialogue about how society impacts law.

Literature Review and Theory

Existing literature critically analyzes the prevalence and function of patriarchal norms

and victim-blaming stereotypes in the legal sphere. This review elaborates on seven distinct

themes: social and legal critiques of patriarchal culture; victim-blaming biases in cases of sexual

assault; psychological and behavioral studies of gender bias; intersectional feminist analyses of

sexual harassment; the performative politics of Supreme Court confirmation hearings; and

analytical approaches to the Thomas and Kavanaugh hearings. This Article examines how

For the purposes of thisArticle, victim-blaming refers to the social phenomenon by which victims of sexual violence “are blamed for their victimization, ” their behavior directly impacting the amount of blame attributed to them. 9 ThisArticle draws more conclusions about the Thomas proceeding than the Kavanaugh proceedings due to the disparity in their length and temporality. To view a graph showcasing this disparity, seeAppendix K.

members of the Senate Judiciary Committee employed gender and racial biases in the Thomas

and Kavanaugh hearings, paying particular attention to the relationship between the two.

Sociolegal scholarship that critiques the patriarchy establishes how patriarchal

consciousness crafts, compels, and constrains femininity. Some scholars take a broad approach to establish the catalytic effect that gender stereotypes have on beliefs about groups of people.10

Other scholars discuss the legal precedent of the “reasonable woman” standard established by

Ellison v. Brady, which dictated the performative parameters by which a woman must abide to constitute a “valid” claim.11 Courtney Frasier argues that benevolent sexist ideology facilitates a

social environment that strips women of agency and enforces hostile sexist ideology through the systemic victimization of women.12 Similarly, other scholars assert that these performative expectations of women render them silent, creating a culture conducive to victim-blaming.13 This

literature demonstrates the prevalence of patriarchal stereotypes, which penetrate the legal sphere

and dictate the credibility of a survivor based on gender and race.

Other scholars take an empirical approach to studying gender discrimination and bias by

conducting psychological and behavioral studies to discern how victim-blaming biases permeate

cases of sexual assault. Some find that the public falls prey to rape myth acceptance, some argue

that prosecutors assess the credibility of survivors in a biased manner, others posit that jurors rely

on social stereotypes in their deliberations, and still others examine how a person’s gender

10 Elizabeth Bates et al.,

"The Impact of Gendered Stereotypes on Perceptions of Violence:ACommentary. " Sex Roles 81, no. 1-2 (2019): 34-43. 11 SarahA. DeCosse, “Simply Unbelievable: Reasonable Women and Hostile Environment Sexual Harassment. ” Law & Inequality:AJournal of Theory and Practice 10, no. 2-3 (1992): 285-309. 12 Courtney Fraser, "From ‘Ladies First’to ‘Asking for It’: Benevolent Sexism in the Maintenance of Rape Culture. " California Law Review 103, no. 1 (2015): 141-203. 13 Amy Grubb and Madeleine Van Der Bruggen, "AReview of the Literature Relating to Rape Victim Blaming:An Analysis of the Impact of Observer and Victim Characteristics onAttribution of Blame in Rape Cases. "Aggression and Violent Behavior 19, no. 5 (2014): 523-31. https://doi.org/10.1016/j.avb.2014.07.008.

identity informs their determination of a survivor’s credibility. 14 Amy Grubb contends that men

engage in victim blaming more than women, and that women tend to make judgments in solidarity with the survivor. 15 Despite having distinct and differing methods, each of these studies

finds that gender bias impacts a survivor’s perceived credibility.

These psychological and behavioral studies shed light on how legal actors’ sexist

stereotypes impact their perceptions of survivors’ credibility. Consequently, some scholars have studied how gender biases, victim-blaming stereotypes, and the criminal justice system interact.16

One study found that police officers are not exempt from social stereotypes and expectations,

while another found that judges do not allow patriarchal consciousness to impact how they perceive a victim’s credibility. 17 Guri C. Bollingmo et al. suggest that when rape victims do not

conform to police officers’ behavioral expectations of them, or when they fail to “correctly” perform victimhood, their claims are viewed by law enforcement as less legitimate.18

14 Mitchell J. Callan et al.,

“I Blame Therefore It Was: Rape MythAcceptance, Victim Blaming, and Memory Reconstruction. ” Personality and Social Psychology Bulletin 45, no. 8 (2019): 1269-82. Lisa Frohmann, "Discrediting Victims'Allegations of SexualAssault: ProsecutorialAccounts of Case Rejections. " Social Problems 38, no. 2 (1991): 213-26. https://doi.org/10.2307/800530. Hubert Feild, "Rape Trials and Jurors' Decisions:A PsychologicalAnalysis of the Effects of Victim, Defendant, and Case Characteristics. " Law and Human Behavior 3, no. 4 (1979): 261-84. http://dx.doi.org/10.1007/BF01039806.Amy Grubb and Julie Harrower, "Attribution of Blame in Cases of Rape:AnAnalysis of Participant Gender, Type of Rape and Perceived Similarity to the Victim. " Aggression and Violent Behavior 13, no. 5 (2008): 396-405. https://doi.org/10.1016/j.avb.2008.06.006. For more on empathy, victim-blaming, and credibility, see Stel et al., “On Mimicry and the Psychology of the Belief in a Just World, ” 14-24. 15 Grubb and Harrower, 14-24. 16 Cassia Spohn and Katherine Tellis, "The Criminal Justice System’s Response to Sexual Violence. " Violence Against Women 18, no. 2 (2012): 169-92. https://doi.org/10.1177/1077801212440020. 17 Emma Sleath and Ray Bull, "Police Perceptions of Rape Victims and the Impact on Case Decision Making:A Systematic Review. "Aggression and Violent Behavior 34 (2017): 102-12. http://dx.doi.org/10.1016/j.avb.2017.02.003. Sleath and Bull contend that police officers consider victim credibility an important factor: the more credible the victim is perceived to be, the more likely the police officer is to charge the alleged perpetrator. Rachel M. Venema, "Making Judgments: How Blame Mediates the Influence of Rape Myth Acceptance in Police Response to SexualAssault. " Journal of Interpersonal Violence 34, no. 13 (2019): 2697-2722. https://doi.org/10.1177/0886260516662437. Ellen Wessel et al., "Credibility of the Emotional Witness:AStudy of Ratings by Court Judges. " Law and Human Behavior 30, no. 2 (2006): 221-30. https://doi.org/10.1007/s10979-006-9024-1. See also Patterson, "The Linkage Between Secondary Victimization by Law Enforcement and Rape Case Outcomes, " 328-47. 18 Wessel et al., 221-30.

While instances of sexual violence are innately gendered, scholars argue that they also

have a racial component. Known as intersectionality, this school of thought denotes how race and

gender shape the multiple dimensions of Black women’s lived experiences. Central to the

intersectional feminist dialogue is Critical Race Feminism, which explains how women of color

“serve as likely targets [of sexual harassment] because they are the least powerful participants in the workplace.”19 Due to ideas of Black womanhood and sexuality, Black women are less likely to be perceived as legitimate victims of sexual violence.20 This is merely one manifestation of

systemic prejudice that results in the continued deprivation of their bodily dignity and

autonomy.

21

As some scholars have noted, this internalized, invisible prejudice is made glaringly

apparent in confirmation hearings due, in large part, to their performative aspect. Collins and

Ringhand argue that the publicization of confirmation hearings render them performative and political opportunities for senators on the Judiciary Committee.22 Other scholars, such as Martha

Merrill Umphrey, argue that legal and political events, such as confirmation hearings, act as

“spaces” in which senators may engage in “dramatizing in a heightened and stylized” environment.23 Therefore, the confirmation process, which scholars argue is an inherently performative one, serves as a platform upon which “out-group bias […] is most visible.”24

19 Kimberlé Crenshaw,

“Mapping the Margins: Intersectionality, Identity Politics, and ViolenceAgainst Women of Color. ” Stanford Law Review 43, no. 6 (1991): 1241-99.Adrien Katherine Wing, Critical Race Feminism:A Reader. (New York: New York University Press, 1997). Wing, 188. 20 Charles R. Lawrence, "Cringing at Myths of Black Sexuality. ” Southern California Law Review 65, no. 3 (1992): 1357-59. 21 Wendy Brown-Scott, “Anita Hill Meets Godzilla: Confessions of a Horror Movie Fan. ” Tulane Law Review 70, no. 6 (1996): 1921-43. https://dx.doi.org/10.2139/ssrn.1626859. 22 Collins, Paul M., and LoriA. Ringhand. "The Institutionalization of Supreme Court Confirmation Hearings. " Law & Social Inquiry 41, no. 1 (2016): 126-51. https://doi.org/10.1111/lsi.12139. For more on the relationship between constitutional change and Supreme Court confirmation hearings, see Collins, Paul M., and LoriA. Ringhand. Supreme Court Confirmation Hearings and Constitutional Change. Cambridge University Press, 2015. 23 Martha Merill Umphrey, "Law in Drag: Trials and Legal Performativity. " Columbia Journal of Gender and Law 21, no. 2 (2011): 516. “Law in Drag, ” 516-31. 24 Christina L. Boyd, et al., "The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings. " Law & Society Review 52, no. 4 (2018): 871-901. https://doi-org/10.1111/lasr.12362.

Since the Clarence Thomas hearings, scholars have examined the nuanced ways in which

race, gender, and psychology permeated the proceedings. Some scholars delve into the

psychological aspects of the Thomas proceedings, such as the psychological impact of Thomas grappling with his crime.25 However, most literature about the Thomas hearings discuss the racial

undertones at play. Some scholars examine how Thomas invoked myths of Black sexuality to characterize Hill as “unchaste” and cater to his white audience.26 Other scholars note how

Thomas utilized his race to publicly protest the proceedings.27 They argue that the treatment of Hill was an active attempt to maintain and enforce the silencing of Black women.28 Ultimately,

scholars conclude that Thomas exploited his emotional agency to extract sympathy while discrediting and demeaning Hill.29

In 2018, Brett Kavanaugh’s Supreme Court confirmation was a controversial and

contentious one, making it a viable topic for scholarly literature. Jeff Nolan’s piece grapples with

the aftermath of Kavanaugh’s confirmation hearing, detailing the neurobiological effects of trauma on memory. 30 Ann C. McGinley, on the other hand, conducts a content analysis of the

25 Kathy Pezdek and Matthew Prull,

“Fallacies in Memory for Conversations: Reflections on Clarence Thomas, Anita Hill, and the Like. ”Applied Cognitive Psychology 7, no. 4 (1993): 299-310. https://doi.org/10.1002/acp.2350070404. Based on an empirical study of memory, it is “likely thatAnita Hill could remember, after 10 years, sexual statements that Clarence Thomas had made in conversations with her” and that “Clarence Thomas would have forgotten after 10 years, sexual statements that he made toAnita Hill. ” Dervin, "Testimony of Silence, ” 257-68; Davis and Wildman, “The Legacy of Doubt, ” 1367-91; Pezdek and Prull, “Fallacies in Memory for Conversations, ” 299-310; Siegel, Outsiders Looking In, 87.As Siegel argues, Thomas created an alternate reality in which he was innocent of all charges, thereby protecting himself and erasing Hill’s claims. 26 Baker-Fletcher posits that the hearings themselves perpetuated myths of the “moral laxity of black women. ” Baker-Fletcher, "The Difference Race Makes, ” 14. Lawrence, 1357-59. 27 Toni Morrison, Race-ing Justice, En-gendering Power: Essays onAnita Hill, Clarence Thomas, and the Construction of Social Reality (New York: Pantheon Books, 1992). 28 Amy Richlin, "Roman Oratory, Pornography, and the Silencing ofAnita Hill. ” Southern California Law Review 65, no. 3 (1992): 1321-32. See also Wooley, "Anita Hill, Clarence Thomas and the Enforcement of Female Silence, " 3-23. 29 Hill and Jordan, Race, Gender, and Power inAmerica, 1995. For more about how Thomas eroded Hill’s credibility, see Davis and Wildman, “The Legacy of Doubt, ” 1367-91.

30 Jeff Nolan,

“#MeToo, SCOTUS,And Trauma: New Investigation Methods for Our Times, ” Vermont Employment Law Letter 23, no. 9 (2018). See also Glazer, “#MeToo Meets SCOTUS, ” 2018. Nolan advises investigators to encourage a survivor to recall rather than demand past details of them.

Kavanaugh hearings through the lens of the masculinity mandate.31 She argues that Kavanaugh

embodied masculinity, championing the notion of “boys will be boys.” This is due to his need to perform his prescribed gender role on a national stage.32 Scholarship that takes an analytical

approach to the Kavanaugh hearings notes that a shift occurred in whose voice the public believed, largely due to the #MeToo Movement.33

Despite the extensive literature on gender bias, patriarchal norms, intersectional

feminism, and analyses on both the Thomas and Kavanaugh proceedings, a scholarly

discrepancy exists. The Thomas proceedings have continued significance and resonance in the

contemporary moment, given the recent Kavanaugh hearings as well as the #MeToo Movement.34 Though scholarship about the Kavanaugh hearings discusses the role of

masculinity, it does not delve into the sociolegal, rhetorical phenomenon of how and why

senators discredit survivors. Therefore, this Article addresses the lack of scholarship on

victim-blaming tactics employed by senators—as they intersect and manifest in Supreme Court

confirmation hearings—to answer the question of how members of Congress delegitimized Hill

and Ford. To do so, this Article conducts a comparative analysis of the Thomas and Kavanaugh

hearings to determine how patriarchal social consciousness permeates the performative politics

of confirmation hearings in a gendered and racial manner.

Methodology

31 Ann C. McGinley,

“The Masculinity Mandate: #MeToo, Brett Kavanaugh, and Christine Blasey Ford. ” Employee Rights and Employment Policy Journal 23 (2019): 61. The term masculinity mandate describes “the strong pressure on men and boys to conform their behavior to society’s expectations of them. These expectations differ depending on the intersectional identities of the individual boy or man (age, race, sexual orientation, class, etc.); thus, masculinities theorists talk about ‘masculinities’in the plural when describing masculine behaviors. ” 32 McGinley, 61. 33 For more about the #MeToo Movement, see Grover, “They Still Just Don’t Get It, ” 123-44; Mackinnon and Mitra, "Ask a Feminist, " 1027-43. 34 Amy Black and JamieAllen, "Tracing the Legacy ofAnita Hill: The Thomas/Hill Hearings and Media Coverage of Sexual Harassment. " Gender Issues 19, no. 1 (2001): 33-52. https://doi.org/10.1007/s12147-001-0003-z.

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I evaluate Supreme Court confirmation hearings because of their unique purpose to

determine the fitness of an individual to serve on the highest court in the United States. I

examine both the Thomas and Kavanaugh hearings because of their parallels and historic

recurrence. Although the allegations vary slightly—Hill accused Thomas of sexual harassment

and Ford accused Kavanaugh of sexual assault—in both cases, the Senate Judiciary Committee

grappled with the bearing that allegations of sexual violence have on the fitness of these men to

serve as Supreme Court Justices. Additionally, the hearings exist at a unique intersection of

victim-blaming and judicial proceedings, posing sociolegal questions about gender, race, and

whose voice ultimately prevails.

To answer this research question, I conducted a three-phase review of the Thomas and

Kavanaugh hearings. The first phase consisted of reading the transcripts of each hearing. After

gaining preliminary insights, the second phase consisted of re-reading the transcripts of the

proceedings, actively making annotations, and noting salient themes and victim-blaming

rhetoric. The two-phase read-through of the transcripts ensured that they were sufficiently and

thoroughly reviewed. Additionally, it provided groundwork and familiarity with the hearings.

The final phase consisted of watching each hearing in full while taking detailed notes. The visual

emphasis of phase three allowed for attuned observations of performative nuances, such as tone

and expressions, which I could not glean from reading transcripts.

Undoubtedly, I strive to control for as many variables as possible but inevitable

limitations exist. The gender identity of the decision-makers impacted why they made certain

assumptions about Hill and Ford. Though an important variable to note, delving into why senators delegitimized Hill and Ford answers a tangential research question.35 Although this

Article does not interrogate the role of the media in each respective hearing, it does not detract

35 This thesis concerns itself with exploring how, not why, senators delegitimized Hill and Ford.

from the media’s significant influence. Despite the aforementioned limitations, a comparative

content analysis yields results that directly engage my research question: how did members of

the Senate Judiciary Committee employ gender and racial biases in the Thomas and Kavanaugh

hearings? I thereby contribute to the scholarly discussion on how patriarchal social

consciousness permeates congressional decision-making in a gendered and racial manner.

Analysis

This Article thematically analyzes the ways in which the members of the Senate Judiciary

Committee engaged in victim-blaming behavior throughout the Thomas and Kavanaugh proceedings.36

I. 2018: A Historical Re-Incarnation of 1991

In 2018, the presence of Chairman Grassley and senators Leahy and Hatch resounded as

particularly significant, given the fact that they sat on the Senate Judiciary Committee 27 years

prior. Though social perceptions of sexual violence changed greatly in that time, the same victim-blaming rhetoric in the Thomas proceedings loomed over this hearing.37 In 2018, explicit,

biased, and sexist statements were no longer socially acceptable. Yet the Thomas hearings not only informed how senators conducted the proceedings, but also the tone of the hearings.38 Many

Democratic senators invoked Professor Anita Hill’s name multiple times throughout the

36 I utilize page numbers to cite the Thomas hearings and a timestamp to cite the Kavanaugh hearings because the printed transcript for the Kavanaugh hearings is unavailable, and the Thomas hearings is only available on VHS. 37 For a quantitative analysis of the rhetoric employed in the Thomas proceeding, seeAppendix D. For a detailed breakdown of rhetorical phrases employed in the Thomas proceeding, seeAppendix E. For a quantitative analysis of the rhetoric employed in the Kavanaugh proceedings, seeAppendix F. For a detailed breakdown of rhetorical phrases employed in the Kavanaugh proceedings, seeAppendix G. For a comparative quantitative analysis of the rhetoric employed in both the Thomas and Kavanaugh proceedings, seeAppendix H. For a detailed breakdown of rhetorical phrases employed in both the Thomas and Kavanaugh proceedings, seeAppendix I. 38 Due to the public unrest regarding how senators degraded and delegitimized Hill, this hearing differed: questions blatantly founded upon victim-blaming stereotypes were no longer socially acceptable by 2018. NBC News, Watch Live: Brett Kavanaugh, Christine Blasey Ford Testify at Senate Hearing, 2018. YouTube, https://www.youtube.com/watch?v=j6EF0nuFjCw. Megyn Kelly, commentating as the proceedings unfolded, remarked that Ford was “about to get put through it. ”

hearings, grounding the Kavanaugh proceedings in a racial and gendered historical context and emphasizing the need to learn from history. 39

Though Democratic senators questioned Ford directly, Republican senators hired a sex

crimes prosecutor, Rachel Mitchell to question Ford on their behalf. This positionality cannot be

described as anything but intentional: Republicans had a woman who dedicated her career to fighting for survivors of sexual violence question a survivor. 40 By so doing, Republicans ensured

and bolstered their credibility by giving the impression that this, unlike the 1991 hearing, would

be a “fair” proceeding during which the truth would prevail. On the other side of the aisle,

Democratic senators did not hesitate to praise Ford for the “courage” that she displayed in coming forward at great professional, familial, and marital cost.41 Overall, the tone read as

reminiscent of the Thomas proceedings while simultaneously being completely different. The

Kavanaugh hearing was distinct in the dignified, compassionate, and empathetic way in which

Democratic senators questioned Ford, including thanking her and explicitly stating that they “believe [her].”42 Compared to the way in which Democratic Senator Heflin questioned Hill,

dramatically asking a myriad of questions to discern what she gained from speaking out, this

proceeding differed greatly. This difference is fundamentally because the Democratic senators

validated Ford’s dignity, respect, and credibility throughout the hearing.

II. Victim-Blaming Questions

39 U.S. Congress. Senate. Committee on the Judiciary: Hearing on the Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court, Day 5, Focusing onAllegations of SexualAssault, Part 1. 115th Cong., 2nd sess., (2018). 52:36-53:09; 54:07-54:19; 56:02-56:19; 1:40:33-1:40:42; 1:52:57-1:53:04; 2:29:56-2:30:12; 7:32:29-7:32:54; 8:25:08-8:25:10. 40 However, the passivity displayed by the Republican party during the questioning of Ford did not extend to the questioning of Kavanaugh: upon witnessing their Democratic colleagues critically question Kavanaugh, Republicans were quick to ‘ditch’Rachel Mitchell for the purpose of defending Kavanaugh. 41 Collectively, Ford was praised for her courage twenty-four times. 42 Senators collectively thanked Ford for coming forward twenty-three times. Democratic senators explicitly stated their belief in the credibility of Ford’s allegations five times.

The Thomas and Kavanaugh proceedings brought to the forefront of social consciousness

exactly why sexual violence is so controversial. When women assert their “equality,” refusing to

remain silent and submit to sexual violence, they threaten the misogynistic foundation of American society. 43 Given this, Hill’s and Ford’s willingness to speak out interrogated the very

structure of the society by illuminating “how vital the existence of official sexual underclasses has been to producing […] political coherence.”44 Thus, the very men who vigorously attacked

Hill’s credibility are those who defend patriarchal consciousness, knowing very well that should

she prevail, the gendered power dynamic in the workplace from which men benefit would cease.

The Thomas Proceedings

Though Democrats refrained from directly attacking Hill, they nevertheless asked

victim-blaming questions. Before a word was spoken or a single question asked, Hill faced

biases on the basis not only of gender, but also race. As she walked into the Senate Caucus Room, filled with reporters and spectators, fourteen white male senators stared down at her. 45

When the hearings did commence, senators unabashedly and openly evaluated the degree to

which Hill was liable for her own harassment. Acting Chairman of the Senate Judiciary

Committee, Joe Biden began the line of questioning after Hill read her five-page opening

statement. Chairman Biden proceeded to conduct an extensive line of questions, which included

the following:

THE CHAIRMAN. Now, when you moved over to EEOC, can you recall for us, to the best of your ability, how that offer came about? Did you inquire of Judge Thomas whether or not you could go to EEOC? Did he suggest it? Do you recall?46

Here, he probed the question of “whether or not” she actively pursued the job at the Equal Employment Opportunity Commission (E.E.O.C.) under Thomas.56 In repeatedly forcing

43 Maritza I. Reyes,

“Professional Women Silenced by Men-Made Norms, ” 912.

44 Berland,

“The Queen ofAmerica Goes to Washington City, ” 459. 45 In 1991, the Senate was “98 percent male. ” Brown, Women ’ s Issues, 44. 46 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 53.

her to rationalize her actions, Chairman Biden, along with the entire committee, attempted to

gauge her degree of agency and the extent to which she should be considered liable for the

sexual harassment she endured. Additionally, he asked where the incidents occurred and if “anyone else [was] in his office at the time.”47 Chairman Biden, intentionally or not, glaringly

highlighted the fact that no witnesses existed who could corroborate any of Hill’s claims. Thus,

even in seemingly innocent questions, the inherent biases displayed by the senators reinforced

gender and racial hierarchies—silencing a Black woman and compromising her integrity.

The Kavanaugh Proceedings

In the 2018 proceedings, senators refused to explicitly ask victim-blaming questions.

This, in part, was due to the backlash the public expressed after the Thomas proceedings.

Twenty-seven years later, senators such as Sen. Hirono utilized the confirmation hearing as an

opportunity for performative politics. She argued that the Senate Judiciary Committee failed to pass a simple test: they failed to believe victims of sexual violence.48 Though senators employed

more systemic and subtle rhetoric, victim-blaming tactics still manifested in the Kavanaugh

proceedings—resulting in the deconstruction of Ford’s credibility.

III. An Assault on Credibility

Though senators did not employ victim-blaming tactics as explicitly as in the Thomas

hearings, the de-legitimization of Ford took a systemic form. While Hill faced active and direct

de-legitimization in 1991, Ford faced passive and subtle de-legitimization in 2018. In denying

her an independent FBI investigation, refusing to call corroborating witnesses, allowing a

47 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 55. 48 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 4:10:53-4:11:30.

prosecutor to question her on their behalf, and utilizing her gaps in memory as evidence of her non-credibility, senators’ passivity and inaction functioned to Ford’s detriment.49

The Thomas Proceedings

Senators questioned Hill’s motivation in coming forward, attacked her credibility, and refused to acknowledge that she was a victim of sexual harassment entirely. 50 Senators on the

Judiciary Committee employed rhetorical tactics to undermine Hill’s credibility. Although

implicit victim-blaming biases underlay the questioning of Hill, the committee’s questioning of

Thomas was an opportunity for political speechmaking that functioned to Hill’s detriment. If the

Thomas proceedings revealed anything, it was what “most lawyers already knew: how easy it is to discredit the victim.”51 Thomas and his Republican supporters employed victim-blaming

rhetoric and exhibited ignorance about sexual harassment throughout the proceeding to discredit

Hill and her allegations.

The Republicans on the Senate Judiciary Committee appointed Sen. Hatch to conduct the

questioning of Thomas on their behalf; this line of questioning consisted solely of political

theatrics, dramatic outbursts, and repeated, adamant, and open comments in favor of Thomas. As

evident in the following exchange, Sen. Hatch phrased his questions to highlight the inaction of

Hill, thereby displacing blame and responsibility onto her.

“Senator HATCH.And even if she might not have remained the number one person to the head of the Civil Rights Division, which you were, she would have been transferred to another equivalent attorney's position. Judge THOMAS. If she had requested it. Senator HATCH. Did you tell her anything to the contrary? Judge THOMAS. Not to my knowledge. In fact, I don't think it ever came up. Senator HATCH. She didn't even ask you?

49 Contrarily, in 1991, twenty-two witnesses testified over the course of three days. In 2018, Republican senators invoked Biden’s statement in 1991 to justify their refusal to call for an independent FBI investigation. 50 “Ms. HILL. I have nothing to gain. No one has promised me anything. I have nothing to gain here. This has been disruptive of my life and I have taken a number of personal risks. I have been threatened and I have not gained anything except knowing that I came forward and did what I felt that I had an obligation to do and that was to tell the truth. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 116. 51 Stark, “Sexual Harassment in the Workplace, ” The Reference Shelf, 50.

Judge THOMAS. I don't think it ever came up. I think it was understood that she would move to EEOC with me if she so desired. ”52

Attempting to delegitimize each one of Hill’s “graphic,” “crude,” “outrageous,” and “stupid” allegations, Sen. Hatch turned to “highly credible” external sources.53 Earlier, Hill

testified that Thomas referred to his penis as “Long Dong Silver” and alleged that one of the

most embarrassing incidents of sexual harassment she endured was Thomas commenting that a pubic hair was placed on his Coke can.54 In response to this testimony, Sen. Hatch cited “an interesting [sexual harassment] case […], Carter v. Sedgwick County, Kansas.”55

“Plaintiff further testified that on one occasion Defendant Brand presented her with a picture of Long Dong Silver—a photo of a black male with an elongated penis. ”56

As if nothing more need be said on the matter, he similarly proceeded to cite a “particular

version of the ‘Exorcist,’” in which the author wrote of “‘an alien pubic hair floating around in my gin.’”57 As the senator finished reading from the Exorcist, he slammed the book down to

physically emphasize his frustration. Given these so-called credible sources, Hill’s specific allegations were anything but “happenstance.”71 Likewise, Sen. Simpson quoted Shakespeare’s Othello58 and Sen. Grassley quoted from the Bible.59 This strategic invocation of foundational

works of literature intended to highlight the dramatic, and therefore fictional, nature of Hill’s

allegations. Evidently, a disconnect emerged. Senators attempted to prove an impossibility: that

Hill’s allegations were entirely fictitious, and that Hill was responsible for the alleged

52 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 167. 53 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 200. 54 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 38. 55 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 203. Carter v. Sedgwick Cnty., 705 F. Supp 1474 (D. Kan. 1988), aff’d in part, vacated in part, 929 F.2d 1501 (10th Cir. 1991). 56 Carter v. Sedgwick Cnty., 705 F. Supp at 1476. 57 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 206. 58 “This is all Shakespeare. This is about love and hate, and cheating and distrust, and kindness and disgust, and avarice and jealousy and envy, all those things that make that remarkable bard read today. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 255. 59 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 258.

harassment.60 Simply put, these two phenomena cannot co-exist: how can senators blame Hill for

harassment that they repeatedly emphasize likely never occurred?

Republicans attempted to destroy Hill’s character, arguing that, due to “the absence of documentation on these comments,”61 Hill, an experienced attorney, lost all credibility when she

failed to adequately document the sexual harassment. However, these senators failed to consider

that Hill did not document the instances of sexual harassment and continued to work under

Thomas because she was doing what all women, especially women of color, have been socialized to do: to submit to the historically male-identifying authority above them.62

The Kavanaugh Proceedings

In the Kavanaugh Proceedings, Ford’s credibility came under attack slowly and

anticlimactically. Yet it came under attack, nonetheless. In denying Ford procedural

necessities—such as an FBI investigation, corroborating witnesses, and the polygraph

report—Republicans reduced the proceedings to a he-said-she-said scenario. By so doing,

senators set Ford up for failure: because women’s voices wield less social capital, they seldom prevail in cases of sexual violence.63 Additionally, Mitchell asked Ford questions regarding what

happened before and after her sexual assault. However, Mitchell intentionally neglected to ask

Ford about the attack itself. A sex crimes prosecutor should be charged with the commonplace,

basic knowledge that sexual assault survivors often do not remember peripheral information such

as what happened before or after the traumatic event. Despite this, Mitchell persisted “in asking these questions all to undermine the memory and basically, the credibility of Dr. Ford.”64

60 Not only do they repeatedly imply that Hill made these allegations up, but the members of the Senate Judiciary Committee also cannot persuasively articulate why Hill would lie. 61 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 233. 62 “The legal treatment of women’s rape and sexual harassment claims shows the catastrophic effects of this process as women are relegated cognitively, socially, and legally to a role of passive receptivity—forced to prove an absence of consent as men are taught to assume its presence. ” Fraser, "From ‘Ladies First’to ‘Asking for It, ’” 141. 63 This begs the question: if Dr. Ford and Professor Hill, two incredibly credible women, cannot prevail, who can? 64 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 4:06:36-4:07:14.

IV. Victim-Blaming a ‘Non-Victim’

While senators on the Senate Judiciary Committee employed victim-blaming tactics to

discredit both Hill and Ford, they also struggled to admit that their victimhood existed at all.

The Thomas Proceedings

Continuing to establish a dynamic in which Hill was solely responsible for her own “alleged”96 sexual harassment, Sen. Leahy addressed the following question to Hill: “What are the things that you felt he should have known were sexual harassment?”65 Though a passing

question, its phrasing was quite telling: this question, make no mistake, was phrased for the

benefit of Thomas. This question compelled Hill to explain why her allegations were valid. To

attempt to discern her motive for coming forward, Sen. Heflin, in an infamously dramatic line of

questioning, asked: “Are you a scorned woman?”; “Do you have a martyr complex?”; “Are you interested in writing a book?”66 Democratic Sen. Heflin simply refused to accept the reality that

Hill came forward out of civic duty, not out of a lust for political, social, and economic capital.

After Hill unequivocally denied every one of Sen. Heflin’s questions, he proceeded to

give her the congressional equivalent of a pop quiz on traits of psychological fantasy. In forcing

Hill to recall the definition of psychological fantasy under oath, Sen. Heflin further humiliated

her. Americans, including the senators on the Judiciary Committee, became obsessed with the

conspiracy theory that Hill was lying in retaliation to Thomas’ romantic refusal of her. 67 The

senators characterized and depicted Hill as an erotomaniac, casting a Black woman as being

65 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 73. 66 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 87-89. The historically salient stereotype of Black women as jezebels, meaning sexually promiscuous, did not elude Hill in these proceedings. On the contrary, senators became fascinated, almost obsessive, with the theory that Hill was a “‘scorned woman’longing for sexual attention from Thomas. ” Broussard, “Unbowed, Unbroken, Unsung, ” 675.As laughter fills the senate caucus room, presumably in response to the outrageousness of the questions, Sen. Heflin’s face remains unchanged, unaffected, and unamused. 67 During the proceedings,Americans called into C-SPAN to voice theories like the following: “She’s obviously in love with him and is lying to get back at him since she couldn’t have her way with him. ” Thomas and Hill, Thomas Confirmation Hearing, 1991.

dangerous in the sexual realm. This sexualization denigrated Hill, which is consistent with the

historic treatment of Black women—overt over-sexualizing for political purposes.

However, Hill remained unaffected, poised, and highly credible. Sitting upright, hands

folded in her lap, shoulders slightly hunched, she appeared calm, composed, respectful and spoke

with honesty and integrity. Ultimately, these men’s attempts to pressure her into floundering her testimony failed.68 Simply put, these fourteen white men refused to accept that Hill came forward

as a reluctant witness, willing to risk her career and reputation to ensure that a sexual predator did not ascend to the highest court in the land.69

Another way in which Hill ‘lost’ credibility, in the eyes of the senators, was her inaction.

Senators questioned her vigorously, repeatedly, and aggressively about 1) her failure to report her

sexual harassment; 2) her decision to follow then Chairman Thomas to the E.E.O.C. after

instances of sexual harassment; and 3) her making eleven phone calls to his office over a time

period of seven years, most of which were favors to individuals wishing to connect with Thomas.70 As the hearings proceeded, Sen. Specter grew extremely agitated, asking Hill the

following: “How could you allow this kind of reprehensible conduct to go on […] without doing something about it?”71 Following this logic, Sen. Simpson inquired, in a state of frustration,

about how Hill could maintain contact with Thomas in any capacity.

Senator SIMPSON. […] But let me tell you, if what you say this man said to you occurred, why in God’s name, when he left his position of power or status or authority over you, and you left in 1983, why in God’s name would you ever speak to a man like that the rest of your life?72

68 At one point in the hearing,Anita turns to consult with her legal counsel. Upon doing so, the rate at which photographs are taken substantially and dramatically increases, the press pouncing on any show of vulnerability. 69 In fact, Hill had not herself approached the committee; thrust into the unwelcome spotlight, she arrived in Washington with “nothing but the truth on her side and a bible in her purse. ” Schlossberg and Steinem, Sex and Justice, 1993. 70 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 113. 71 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 67-68. 72 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 128.

What both Sen. Specter and Sen. Simpson failed to appreciate was and is the unique

positionality of Hill as a Black woman in America. The racial hostility that Black women

professionals face in the workforce “does not subside because they labor in the ivory tower of academia.”73 Being a Black woman, Hill was not only more susceptible to sexual harassment, but also more limited in her courses of recourse.74 In other words, she did not have the economic or

social luxury of burning bridges at the E.E.O.C. Additionally, she refused to leave because she “did not want to let that kind of behavior control [her] choices.”75 These reasons, of course, Sen. Specter, with his eyebrows furrowed, declared that he “[didn’t] understand.”76 Thus, the senators

completely neglected to discern, let alone appreciate, the nuanced ways in which Black women

must navigate racism and sexism in the workplace. The Senate Judiciary Committee found it

unimaginable that Hill could not, and should not have to, find another means of employment.

Supposing that the senators could understand why Hill remained silent, followed Thomas

to the E.E.O.C., and occasionally called his office, they still refused to accept one thing: that she

failed to document the sexual harassment. The expectations were nearly insurmountable for Hill:

not only did she have to combat biases on the basis of gender and of race, but she also had to

combat biases on the basis of her professional career—that she, a practicing attorney, had no

evidence aside from the credibility of her word. Badgering this point, Sen. Specter repeatedly highlighted the clear “absence of documentation on these comments.”73 In verbally declaring that

he was incapable of reconciling her allegations with the fact that she was an attorney, he publicly

and openly distrusted Hill.

The Kavanaugh Proceedings

73 Smith,

“Teaching the Retrenchment Generation, ” 131. 74 The unique vulnerability of Black women is due to the fact that they “hold less power and status” in society, a power dynamic which extends into the professional sphere. Crawford, “Chapter 11, ” Transformations, 377. 75 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 123. 76 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 110.

Contrarily, in 2018, senators agreed on a bipartisan basis that Ford was clearly a survivor

of sexual violence. The bipartisan consensus regarding Ford’s victimhood, no doubt, was due to

Ford’s compelling, emotional, and visceral retelling of her experience with sexual assault. Ford’s

emotional testimony differed starkly to Hill’s composed testimony. In 2018, Ford’s performative

victimhood bolstered her credibility. Thus, since senators acknowledged her victimhood, their

victim-blaming tactics manifested in subtler forms that resulted in double-victimization.

V. Double-Victimization

Based on the heinous ways in which the committee treated them, both Hill and Ford were

doubly victimized: they were victimized once by the sexual violence they experienced and again “by the system itself,” which attempted to assassinate their credibility and personhood.77 Though

their testimonies still resonate in the contemporary moment, sexual violence “is as old as the imbalance of power between women and men.”78

The Thomas Proceedings

Throughout their questioning, senators verbally harassed Hill, engaging in double

victimization. Sen. Specter, on behalf of the Republican Party, interrogated Hill regarding all

discrepancies between the FBI interview and her official statement to the committee. With his

hands clasped, he looked down at Hill with a confident demeanor, silencing her before he even

uttered the questions that he strategically crafted to undermine her credibility. This interrogation

included his remark that what she categorized in her previous testimony as the most embarrassing aspect of the sexual harassment was “not too bad.”79

77 Morewitz, Sexual Harassment & Social Change in American Society, 382. 78 Emphasizing that race plays a significant role in sexual violence, Steinem remarked that MargaretAtwood’s Handmaid’ s Tale “was a future fantasy for white women, but for black women it was history. ” Steinem, Gloria, Clarence Thomas and Anita Hill: Public Hearing, Private Pain, 1992. 79 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 64. The sentiment that normalizes and delegitimizes sexual harassment was echoed by female callers on C-SPAN: “I don’t know anyone who hasn’t

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Sen. Specter asked her “how reliable [her] testimony” was, given the fact that she did not speak up for decades.80 In criticizing her for not adequately defending herself, Sen. Specter

positioned her as the one to blame for her own harassment. At one point, after Sen. Specter said, “these comments,” he qualified his previous phrase by adding “alleged comments.”81 This small

addition epitomizes the adversarial atmosphere of the proceedings. Sen. Specter’s qualification

not only served as a rhetorical emphasis, but also as a reminder that Hill’s credibility had not

been and, in his view never would be, valid.

The Kavanaugh Proceedings

After delivering a biased opening statement, in which he affirmed Kavanaugh’s character

and dismissed the credibility of two additional allegations, Chairman Grassley yielded to Ranking Member Feinstein.82 In her statement, she presented a fact-based, logical view of the

relationship between sexual violence and gender, as well as barriers to survivors who desire to

publicly seek justice. Underlying her entire statement was a counter-narrative critiquing the way

in which the legal system treats survivors of sexual violence. As Feinstein suggested, the legal

system discredits survivors at every turn and forces them to undergo a new form of trauma, ultimately leaving them doubly victimized.83

VI. Senators Sympathized with Thomas and Kavanaugh

experience some sort of sexual harassment at work”; “To be a woman inAmerica, you experience constant sexual harassment everywhere you go. I understand but I don’t think that we should scapegoat Clarence Thomas. ” Thomas and Hill, Thomas Confirmation Hearing, 1991. 80 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 84. 81 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 66. 82 “GRASSLEY: […] My staff has tried to secure testimony and evidence from attorneys for both Deborah Ramirez and Julie Swetnick. […] The committee can't do an investigation if attorneys are stonewalling. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 46:20-47:43. Ranking Member Feinstein has a personal connection to both the Thomas and Kavanaugh proceedings: she was elected in the Year of the Woman after the Thomas proceeding. 83 “But while young women are standing up and saying, ‘No more, ’our institutions have not progressed in how they treat women who come forward. Too often, women’s memories and credibility come under assault. In essence, they are put on trial and forced to defend themselves, and often revictimized in the process. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 49:00-1:01:58.

Throughout both proceedings, senators repeatedly sympathized with the nominee,

thereby exposing their bias in favor of them. Aside from showing their support by discussing the

unjust nature of the proceedings, man to man, the senators defended the nominees by pointing

out the lack of a pattern of sexually deviant behavior. Likewise, while senators actively defended

the nominees, they also highlighted the positive relationship each nominee had with women.

The Thomas Proceedings

Time and time again, senators reiterated that Thomas dedicated a portion of his

professional career towards ending sexual harassment for the benefit of women in the workplace.

This partiality towards Thomas resulted in senators making explicit comments in his favor,

ultimately revealing their prejudice and their pointed dismissal of Hill’s allegations. In

questioning Thomas, multiple senators inquired about Thomas’ feelings regarding the entire

proceeding. Sen. Leahy asked Thomas to describe his reaction to the allegations, in addition to

asking Thomas to “tell [them] what it [felt] like” to be “unjustly accused of sexual harassment [emphasis added].”84 In intentionally creating space for Thomas to air his grievances as well as

frustrations, the senators allowed one narrative: the narrative of a man who had already been

extended the benefit of the doubt, and was absolved of any burden of proof, to prevail. At one

point, Sen. Simpson blatantly and openly stated the following: “We really are not open-minded, but trying, because we have had a vote here already.”85 Thus, before Hill even uttered a single

word, these senators were anything but open-minded. Sen. Specter expressed to Thomas that he was “proud of [him] for not backing down”86

from the nomination. Chairman Biden also emphasized that Hill failed to establish a pattern of

84 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 251. 85 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 301. 86 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 252.Additionally, Chairman Biden stated: “This isn’t over. Your grandfather is right, you have no right to give up. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 267.

sexual harassment, extending Thomas the benefit of the doubt, and bolstering his credibility.

Additionally, in a long monologue addressed to Thomas, he outlined “compelling arguments to be made” for Thomas.87

“Chairman BIDEN.And every expert comes forward and says, there's a pattern. It doesn't happen in isolated instances. It is a pattern. If there is not a pattern, to me that is probative. That has some dispositive weight. No one has proved a pattern here of anything. We are not finished yet. But no one has proved a pattern.Again, these people have decided already, once and for all, they are for you or against you. You need better lawyers. You need to hire me. ”87

In going so far as to offer his personal professional services to Thomas, Biden revealed

that the neutrality he attempted to uphold was disingenuous. In effect, Specter and Biden offered

Thomas what amounted to be a congressional ‘pep-talk’ amid the proceedings, encouraging him to persevere.88 Ultimately, the bias evident in the proceedings prevented Hill’s allegations from

being seriously considered. The way in which the Senate Judiciary Committee treated her was

the culmination, manifestation, and exposure of the sexism and racism that sustains American

society.

The Kavanaugh Proceedings

Chairman Grassley began the Kavanaugh proceedings by emphasizing his desire to conduct a “safe, comfortable and dignified” hearing.89 Though a seemingly noble endeavor, he

proceeded to directly give Kavanaugh the benefit of the doubt. Chairman Grassley detailed, at

length, the fact that the previous six FBI reports conducted concerning Kavanaugh did not

indicate “a whiff of any issue” of sexual violence; additionally, Kavanaugh answered “nearly 1,300 written questions” from senators, “more than all prior Supreme Court nominees.”90 Thus,

according to Chairman Grassley’s logic, Kavanaugh was nothing less than an upstanding,

87 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 267. 88 Sen. Cornyn offered the following words of encouragement to Kavanaugh: “Well Judge—Judge, don’t give up. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:26:55-7:26:58. 89 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 35:50-36:04. 90 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 36:59-39:04.

accomplished, and innocent victim. By focusing on the accomplishments and dedication,

Chairman Grassley prematurely dismissed all allegations against him. Put plainly: since

Kavanaugh was faultless in the eyes of many, this hearing was no more than a formality to satiate

the public. Additionally, Republican senators and Kavanaugh alike took the liberty of outlining Kavanaugh’s extensive record of empowering women.91 Sen. Graham, in a rhetorically vibrant

speech, elaborated as follows:

“GRAHAM: […] You’re supposed to be Bill Cosby when you’re a junior and senior in high school.And all of a sudden, you got over it. It’s been my understanding that if you drug women and rape them for two years in high school, you probably don’t stop. ”92

Sen. Graham strategically utilizes Kavanaugh’s professional reputation in the same way

senators utilized Hill’s to side against her: while Hill failed to embody the expected response of

an attorney to sexual harassment, Kavanaugh dedicated himself to promoting women’s interests.93 Ultimately, Sen. Graham’s comments served one purpose: to denounce the absurdity

of Ford’s claims and lament the position in which Kavanaugh found himself. Thus, by

emphasizing his clean record and the fact that he nobly went out of his way to strictly hire

women law clerks—as though this made him a feminist ally— senators further solidified

Kavanaugh’s credibility.

VII. The Burden of Proof: The Hypocrisy of a ‘Non-Trial’ Trial

Throughout both proceedings, senators repeatedly reassured the nominees by declaring

that the burden of proof lay with Hill and Ford. In effect, the Senate Judiciary Committee

members held Hill and Ford to a criminal trial court’s standard of proof: the evidence must be so

completely convincing toward the guilt of the nominee that there is no reasonable doubt of their

guilt. While the nominees were exempt from proving their innocence, Hill and Ford had only

91 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 6:08:07-6:22:26. 92 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:18:06-7:18:23. 93 “If confirmed” Kavanaugh would “be the first justice in the history of the Supreme Court to have a group of all-women law clerks. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 6:20:23-6:20:39.

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their testimony and lived experiences to prove their guilt. Thus, as apparent throughout these

proceedings, senators enacted a gendered and racialized double standard, which tactfully worked

to the detriment of Hill and Ford and the subsequent benefit of Thomas and Kavanaugh. This

double standard manifested as a symptom of endemic social power hierarchies. As evidenced by

these proceedings, the standard of proof in cases of sexual violence was fundamentally designed

to believe men, and to silence women.

The Thomas Proceedings

Hill, shouldering the burden of proof, had to repeatedly explain her rationale for sustaining contact with Thomas.94 Sen. Hatch repeatedly and explicitly stated that Hill must prove her own victimization.95 Sen. Hatch proceeded to fiercely defend Thomas by repeatedly

reminding spectators that the statute of limitations on sexual harassment had long run out. Thus,

just as the laws surrounding sexual harassment functioned to protect the party being accused,

Sen. Hatch embodied and enacted this patriarchal protection. The senators questioning Thomas

failed to appreciate the emotionally nuanced way survivors of sexual violence grapple with their

own abuse. Due to the emotionally traumatic nature of sexual violence, survivors are unlikely to respond in a legally convenient timeframe.96 Therefore, the Thomas proceedings emerged as a

94 “Ms. HILL. Well, my understanding of—I did not have much notice that Judge Thomas was moving over to the EEOC. My understanding from him at that time was that I could go with him to the EEOC, that I did not have—since I was his special assistant, that I did not have a position at the Office for Education, but that I was welcome to go to the EEOC with him. It was a very tough decision, because this behavior occurred. However, at the time that I went to the EEOC, there was a period—or prior to the time we went to the EEOC, there was a period where the incidents had ceased, and so after some consideration of the job opportunities in the area, as well as the fact that I was not assured that my job at Education was going to be protected, I made a decision to move to the EEOC. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 52. 95 “Senator HATCH. […] we have to remember, and we have to insist thatAnita Hill has the burden of proof or any other challenger, and not you, Judge. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 188. 96 The impersonal and allegedly objective way in which the senators comprehended, or failed to comprehend, Hill’s response to her trauma illuminates the way in which criminal law oversimplifies sex and relationships, an oversimplification which manifests at the legal detriment of women. In short, laws relating to sexual violence do not appreciate the breadth of emotional damage caused by sexual violence. Baker, “Gender and Emotion in Criminal Law, ” 447-66.

mere manifestation of, and glimpse into, the inner workings of a society that systematically

devalues women.

The Kavanaugh Proceedings

Democrats repeatedly asserted that the proceedings were not a court of law, but rather a

job interview. Not even the most lenient employer would hire someone accused of sexual assault,

exposing himself to another student while at Yale, and standing by while a woman was gang raped.97 This emphasis redirected the focus of the hearings. The purpose of the hearings was not

to conduct a trial, but rather to evaluate whether Kavanaugh was fit to decide key legal questions

for decades. The purpose of the hearings was to determine who exactly is fit to serve on the

highest court in the land.

On the other side of the aisle, Republicans highlighted that this was not a court of law to

justify dismissing Ford’s claims. Republican senators instead expressed concern about the

damage that these accusations have inflicted upon Kavanaugh. Thus, by weaving discussions of

the burden of proof into the hearings, Republican senators ensured that Kavanaugh’s credibility

prevailed over Ford’s. Make no mistake: all discussion of innocence, the burden of proof, and

evidence served a mere theatrical purpose. Sen. McConnell, two days prior to the hearing, boldly claimed that he was “confident [that Kavanaugh] will be confirmed.”97 Republican senators thus

made certain that Kavanaugh’s confirmation to the Supreme Court was a foregone conclusion

before Ford uttered a single word.

VIII. Judge Thomas and Judge Kavanaugh: Frail Masculinity

The Thomas Proceedings

In his response to questions, Thomas appeared firm, agitated, and utilized hand gestures

to physically render his frustration toward the entire situation. Engaging in self-victimization,

97 McGann, “The Brett Kavanaugh Hearing Isn't a Trial. It's a Job Interview. ”

Thomas rocked back and forth, shaking his head in apparent disgust, his clasped knuckles lightly pounding on the table as Sen. Hatch read Hill’s allegations.98 He asserted time and time again his

no tolerance attitude regarding sexual harassment. Yet absent from the hearings was evidence

that in 1980, as Chairman of the E.E.O.C., Thomas was asked to assess its future, specifically

regarding sexual harassment. Thomas recommended that resources to prevent sexual harassment were not worth allocating money to: this memo was never introduced as relevant evidence.99

Thomas repeatedly and directly blamed both the Senate Judiciary Committee and the media for this “circus,” this “national disgrace,” this “high-tech lynching.”100 In comparing his

experience to modern-day lynching, Thomas invoked of “the single most emotional issue” underlying the “collective racial past” between the Black and white communities.101 This was

tactical and extremely successful on Thomas’ part. His denunciation of racism “further inscribed his determined use” of politics, both racial and sexual, in his favor. 102 Thomas also emphasized

the extent to which these allegations had damaged both him and his family. He dramatically

declared that “the nomination [was] not worth it, being on the Supreme Court [was] not worth it, and there [was] no amount of money that [was] worth” the suffering he had endured.103

Contrarily, Hill refused to blame either party, even when baited numerous times.

In addition to dismissing her claims as invalid, Thomas intentionally treated Hill “as traitor-to-the-race,” gaining support and reinforcing his legitimacy at her expense.104 Hill’s

testimony proved divisive to the Black community; some viewed her as assuming the degrading

stereotype of a Black woman being used by the white community “to undermine” another Black

98 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 24:25-25:50. “I am a victim of this process. ”

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 9. 99 Schlossberg, Sex and Justice, 1993. 100 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 157. 101 Morrison, Race-ing Justice, En-gendering Power, 284. Lenhardt, “Understanding the Mark, ” 930.

102 Morrison, Race-ing Justice, En-gendering Power, 284. 103 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 184. 104 Morrison, Race-ing Justice, En-gendering Power, 204.

person.105 Additionally, Hill’s coming forward was contentious in her refusal to “be solely

motivated by racial solidarity,” instead speaking out on behalf of herself and on behalf of the integrity of the nation.106 Unspoken racial and sexual biases informing the hearings shaped whether Hill’s “[story was] likely to be believed.”107 Moreover, Thomas also appealed to the

all-male committee on the basis that if it can happen to him, “it can happen to anybody, any time over any issue.”108 Thomas appealed to and exposed patriarchal paranoia: allowing a survivor of sexual violence to hold any man accountable threatens the very fabric of society. 109

The Kavanaugh Proceedings

Kavanaugh’s white masculinity allowed him to behave in a tantrum-like manner

throughout the proceedings. Entering the Senate Caucus Room with a scrunched face and brow

furrowed, he adjusted his name plate twice, squinted at the microphone, and eyed the senators on the Senate Judiciary Committee.110 After delivering a forceful, angry, and emotional opening statement, Kavanaugh proclaimed that he was “innocent of this charge.”111 In his opening,

Kavanaugh framed the entire proceeding as a criminal trial—Ford forced into the role of lying

victim and Kavanaugh playing the tragic role of an innocent man wrongly accused.

Rachel Mitchell then proceeded to question him, listing each of Ford’s allegations. This

directly contrasted the Thomas proceedings during which Republicans only listed Hill’s

allegations to demean, devalue, and delegitimize them. Though Kavanaugh delivered a tearful

and impassioned opening statement, he quickly assumed a defensive, frustrated persona. To

105 Karenga,

“Under the Camouflage of Color and Gender, ” 62. 106 Bikel, Clarence Thomas and Anita Hill, 1992. 107 Morrison, Race-ing Justice, En-gendering Power, 412. 108 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 185. 109 Imperative is the need to create counternarratives and counter movements to dismantle a fundamentally exploitative, unequal society.Although those who benefit from this patriarchal society “will do everything they can” to maintain it, we must “ask [ourselves]: are [we] ok with who is winning?” Strach, “What’s Wrong with Us?” 17. 110 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 5:37:16-5:37:50. 111 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 47:40-47:42.

discern why Kavanaugh had not asked for an FBI investigation into Ford’s allegations, Sen.

Durbin asked the following:

“DURBIN: So the point I’m getting to is we at least can connect some dots here and get some information. Why would you resist that kind… KAVANAUGH: Here’s some dots. DURBIN: … of investigation? Why would you resist that kind of investigation? KAVANAUGH: Senator, I—I welcome—I wanted the hearing last week. ”112

As he retorted “here’s some dots,” Kavanaugh raised his detailed calendar, as though it sufficiently answered all inconsistencies in his testimony. 113 Additionally, Kavanaugh’s testimony

above was anything but logical: whether he did or did not want the hearings had nothing to do

with why he refused to call for an FBI investigation.

At another point, Sen. Durbin asked Kavanaugh about his high school yearbook, which contained obscene, sexual references.114 In response to this question, he listed his high school and

college accomplishments, substituting directness for the equivalent of a verbal résumé. Thus, by

listing his numerous achievements, reliving his high school glories, and aggressively retorting

answers to Democrats’ questions, Kavanaugh wielded the social capital and privilege of his white masculinity. 115

IX. The Women Who Spoke Up: Professor Anita Hill and Dr. Christine Blasey Ford

Professor Hill and Dr. Ford shared multiple commonalities. Both women reported their

experiences of sexual violence under the condition that their names would remain confidential

despite these attempts at confidentiality ultimately failing. Both women willingly submitted to

polygraph tests, which confirmed that their allegations were truthful and credible. After their

allegations were leaked to the public, other women came forward with similar allegations.

During the Thomas proceedings, Angela Wright alleged that Thomas sexually harassed her as

112 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:13:35-7:13:48. 113 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:13:40-7:13:42. 114 To view a photograph of Brett M. Kavanaugh’s high school yearbook, seeAppendix J. 115 In addition to angrily answering Democrats’questions, Kavanaugh interrupted them a total of 94 times.

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well. During the Kavanaugh proceedings, Deborah Ramirez and Julie Swetnick, alleged that they were victims of Kavanaugh’s sexually violent and aggressive behavior. 116 Additionally, both Hill

and Ford demonstrated physical and emotional embodiment of their traumatic experiences: Hill

was hospitalized for five days from stress on the job and Ford detailed having “anxiety, phobia and PTSD-like symptoms.”117 Despite these traumas, both women vividly recalled their

experiences in a professional and concise manner.

However, though both women experienced double victimization, in the original instances

of trauma and again in their having to relive their experiences, their different racial identities

informed their experiences in different ways. Hill “was treated far more harshly […] than she

would have been had she been white,” and faced degradation by an all-white, all-male committee.118 Though Hill faced what contemporary viewers might consider heinous behavior on

the part of the Senate Judiciary Committee, she remained composed and professional. Similarly,

Ford began by sitting upright with her chin slightly raised, occasionally smiling, and appearing,

all in all, composed. However, upon hearing of the other women’s allegations against

Kavanaugh, she became emotional, her breathing accelerating as her eyes brimmed with tears.

Yet she composed herself sipped water, prioritizing composure over the strong, visceral emotions

she inevitably felt. Because Ford adhered to the societal expectations of performative victimhood, by being emotional while maintaining composure, she garnered more credibility. 119

Conclusion

116 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 21:41-23:03. 117 “Several studies have shown that the experience of sexual harassment can lead to depression, irritability, physical symptoms (extreme fatigue, headaches), and psychological distress. ” Crawford, “Chapter 11, ” 379. Committee on the Judiciary, Nomination of Judge Clarence Thomas, 38. Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 1:30:05-1:30:25. 118 Hill and Jordan, Race, Gender, and Power in America, 33. 119 Bollingmo et al., “Credibility of the Emotional Witness, ” 29-40.

The notion of innocent until proven guilty reverberates at the heart of this country’s

judicial system. However, in these highly racial and gendered proceedings, senators utilized the

burden of proof to protect Clarence Thomas and Brett Kavanaugh, safeguarding their

confirmation to the highest court in the land. In asking victim-blaming questions, attacking

Professor Anita Hill’s and Dr. Christine Blasey Ford’s credibility, and sympathizing with the

nominees, the Senate Judiciary Committee shirked their duty to the American people and left

Hill and Ford doubly victimized. Despite the venerable significance of the position of a Supreme

Court Justice, Thomas and Kavanaugh were confirmed; the allegations of sexual violence levied

against them proved insufficient to prevent their being sworn in. Further research might utilize

this Article’s findings—how patriarchal society influenced senators—to explore the relationship between victim-blaming stereotypes, the criminal justice system, and sexual assault cases.120

Despite their outcomes, the hearings represent progress.121 They represent two women who refused to suffer in silence, and who forced “the nation [to] listen to them.”122 But these

hearings were about more than sexual violence: they provoked national debate over “sexual [violence], the politics of power, and sexual and racial stereotypes.”123 While some Americans refused to believe Hill, others voiced their adamant support for her courage.124 In fact, during the

1991 proceedings, women called into C-SPAN and disclosed their personal experiences with

sexual harassment and violence. Thus, Hill’s unparalleled courage sparked a Pre-#MeToo

movement, a national conversation about violence against women.

120 In other words, further research might delve into how and why the criminal justice system is designed for the benefit of the accused. 121 The Thomas hearings achieved the following: The Civil RightsAct of 1991, an increase in the number of sexual harassment charges and lawsuits filed, an increase in the number of sexual harassment lawsuits, and a record number of women ran for the Senate. Morewitz, “Chapter 10, ” 384; Schlossberg et al., Sex and Justice, 1993. 122 Mood and Davidson, Subjects and Citizens, 458. 123 Taylor, “Invisible Women, ” 452. 124 Some calling into C-SPAN voiced that Hill’s testimony was “hurting the relationship between men and women, ” and that “male Democrats [were] overcompensating for past wrongs done to women. ” Survivors of sexual violence also called in to shame Hill for not doing anything. Thomas and Hill, Thomas Confirmation Hearing, 1991.

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Two women’s voices ignited debates about race, gender, and power that changed the

course of history forever. Making history, Ketanji Brown Jackson became the first Black woman

to be confirmed to the highest court in the land as the 116th Associate Justice of the United States Supreme Court.125 Yet history seemed to repeat itself. Jackson’s confirmation hearings

featured the same racism and performative politics that Hill experienced. This time, senators employed racist myths about how Jackson’s Blackness led her to be soft on crime.126 This is not

something that Ford, as a white woman, had to experience. Senators who opposed Jackson’s

confirmation attempted to discredit and neutralize her power. Thus, senators continue to utilize

racism and sexism to launch political agendas to discredit women in Supreme Court

confirmation hearings. Not even a woman who will now sit on the Supreme Court of the United

States—a woman vested with the highest judicial authority in the country—could be free from

racist and sexist attempts at derogation.

As Anita Hill remarked during the 1992 New York Conference on Parity, Power &

Sexual Harassment, how the nation discusses, conceptualizes, and prosecutes cases of sexual

violence must change. Instead of placing the burden of proof upon the survivor, “we need to talk

about why [the perpetrator] abused [their] power […] to turn the questions around to look at the harasser and not the target.”127 Although the outcomes of both hearings suggest that the

patriarchy prevails, hope remains. From the unwavering courage displayed by Professor Hill to

the quiet dignity displayed by Dr. Ford, with each courageous survivor who speaks out against

gendered and racial systemic violence, the nation is one step closer to equality.

125 United States Committee on the Judiciary,

“Judge Ketanji Brown Jackson: Nominee to Become the 116th Associate Justice of the United States Supreme Court. ” 126 Remnick, “Anita Hill Saw History Repeat Itself at Ketanji Brown Jackson's Supreme Court Hearings, ” 2022. 127 Hill et al., Sexual Harassment Issues, 1992.

AppendixA

List of Senators on the United States Senate Committee on the Judiciary 102nd United States Congress, First Session

JOSEPH R. BIDEN, JR., Delaware, Chairman EDWARD M. KENNEDY, Massachusetts JAMES S. THURMOND, South Carolina HOWARD M. METZENBAUM, Ohio ORRIN G. HATCH, Utah DENNIS D. CONCINI, Arizona ALAN K. SIMPSON, Wyoming PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa HOWELLT. HEFLIN, Alabama ARLEN SPECTER, Pennsylvania PAUL M. SIMON, Illinois GEORGE H. BROWN, Colorado HERBERT H. KOHL, Wisconsin RONALD A. KLAIN, Chief Counsel JEFFREY J. PECK, Staff Director TERRY L. WOOTEN, Minority Chief Counsel and Staff Director

115th United States Congress, Second Session

CHARLES E. GRASSLEY, Iowa, Chairman ORRN G. HATCH, Utah DIANNE G. B. FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina PATRICK J. LEAHY, Vermont JOHN CORNYN III, Texas RICHARD J. DURBIN, Illinois MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island RAFAEL E. CRUZ, Texas AMY J. KLOBUCHAR, Minnesota BENJAMIN E. SASSE, Nebraska CHRISTOPHER A. COONS, Delaware JEFFREY L. FLAKE, Arizona RICHARD BLUMENTHAL, Connecticut MICHAEL D. CRAPO, Idaho MAZIE K. HIRONO, Hawaii THOMAS R. TILLIS, North Carolina CORYA. BOOKER, New Jersey JOHN N. KENNEDY, Louisiana KAMALA D. HARRIS, California

KOLAN L. DAVIS, Chief Counsel KOLAN L. DAVIS, Staff Director JENNIFER DUCK, Minority Chief Counsel and Staff Director

Appendix B

Senate Vote Summary on the Nomination of Clarence Thomas to be an Associate Justice of the Supreme Court of the United States October 15, 1991, 6:03 PM128

YEAs—52

Bond (R-MO) Boren (D-OK) Breaux (D-LA)

Brown (R-CO)

Burns (R-MT) Chafee (R-RI) Coats (R-IN) Cochran (R-MS) Cohen (R-ME) Craig (R-ID) D’Amato (R-NY) Danforth (R-MO)

DeConcini (D-AZ)

Dixon (D-IL) Dole (R-KS) Domenici (R-NM)

Fowler (D-GA) Garn (R-UT) Gorton (R-WA) Gramm (R-TX)

Grassley (R-IA) Hatch (R-UT)

Hatfield (R-OR) Helms (R-NC) Hollings (D-SC) Johnston (D-LA) Kassebaum (R-KS) Kasten (R-WI) Lott (R-MS) Lugar (R-IN) Mack (R-FL) McCain (R-AZ) Durenberger (R-MN) McConnell (R-KY) Exon (D-NE) Murkowski (R-AK)

Adams (D-WA) Akaka (D-HI) Baucus (D-MT) Bentsen (D-TX)

Biden (D-DE)

Bingaman (D-NM) Bradley (D-NJ)

NAYs—48

Glenn (D-OH) Gore (D-TN) Graham (D-FL) Harkin (D-IA)

Heflin (D-AL)

Inouye (D-HI) Jeffords (R-VT) Nickles (R-OK) Nunn (D-GA) Pressler (R-SD) Robb (D-VA) Roth (R-DE) Rudman (R-NH) Seymour (R-CA) Shelby (D-AL)

Simpson (R-WY)

Smith (R-NH)

Specter (R-PA)

Stevens (R-AK) Symms (R-ID)

Thurmond (R-SC)

Wallop (R-WY) Warner (R-VA)

Mikulski (D-MD) Mitchell (D-ME) Moynihan (D-NY) Packwood (R-OR) Pell (D-RI) Pryor (D-AR) Reid (D-NV)

128 The names of senators who sat on the Senate Committee on the Judiciary are both italicized and bolded.

PAGE 127

Bryan (D-NV) Bumpers (D-AR)

Kennedy (D-MA)

Kerrey (D-NE) Burdick, Quentin S (D-ND) Kerrey (D-MA) Byrd (D-WV)

Kohl (D-WI)

Conrad (D-ND) Lautenberg (D-NJ)

Cranston (D-CA)

Leahy (D-VT)

Daschle (D-SD) Levin (D-MI)

Dodd (D-CT) Lieberman (D-CT) Sanford (D-NC) Rockefeller (D-WV) Sanford (D-NC) Sarbanes (D-MD) Sasser (D-TN)

Simon (D-IL)

Wellstone (D-MN) Wirth (D-CO)

Ford (D-KY) Metzenbaum (D-OH) Wofford (D-PA)

Appendix C

Senate Vote Summary on the Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States October 5, 2018, 10:36 AM139

Alexander (R-TN) Barrasso (R-WY) Blunt (R-MO) Boozman (R-AR) Burr (R-NC) Capito (R-WV) Cassidy (R-LA) Collins (R-ME) Corker (R-TN) Cornyn (R-TX) Cotton (R-AR) Crapo (R-ID) Cruz (R-TX) Daines (R-MT) Enzi (R-WY) Ernst (R-IA) Fischer (R-NE)

Baldwin (D-WI) Bennet (D-CO) Blumenthal (D-CT) Booker (D-NJ) Brown (D-OH) Cantwell (D-WA) Cardin (D-MD) Carper (D-DE) Casey (D-PA) Coons (D-DE) YEAs—51 Flake (R-AZ) Gardner (R-CO) Graham (R-SC) Grassley (R-IA) Hatch (R-UT) Heller (R-NV) Moran (R-KS) Paul (R-KY) Perdue (R-GA) Portman (R-OH) Risch (R-ID) Roberts (R-KS)

Hoeven (R-ND)

Rounds (R-SD) Hyde-Smith (R-MS) Rubio (R-FL) Inhofe (R-OK) Sasse (R-NE)

Isakson (R-GA) Scott (R-SC)

Johnson (R-WI) Kennedy (R-LA) Kyl (R-AZ) Lankford (R-OK) Shelby (R-AL) Sullivan (R-AK) Thune (R-SD) Tillis (R-NC)

Lee (R-UT) Manchin (D-WV) Toomey (R-PA) Wicker (R-MS)

McConnell (R-KY) Young (R-IN)

NEAs—49 Hassan (D-NH) Heinrich (D-NM) Heitkamp (D-ND) Hirono (D-HI) Jones (D-AL) Kaine (D-VA) King (I-ME) Klobuchar (D-MN) Leahy (D-VT) Markey (D-MA) Peters (D-MI) Reed (D-RI) Sanders (I-VT) Schatz (D-HI) Schumer (D-NY) Shaheen (D-NH) Smith (D-MN) Stabenow (D-MI) Tester (D-MT) Udall (D-NM)

Cortez Masto (D-NV) McCaskill (D-MO) Donnelly (D-IN) Duckworth (D-IL) Durbin (D-IL) Menendez (D-NJ) Merkley (D-OR) Murkowski (R-AK)

Feinstein (D-CA) Gillibrand (D-NY) Harris (D-CA) Murphy (D-CT) Murray (D-WA) Nelson (D-FL) Van Hollen (D-MD) Warner (D-VA) Warren (D-MA) Whitehouse (D-RI) Wyden (D-OR)

Appendix D

Analysis of the Rhetoric Employed in the Thomas Proceedings

Appendix E

Breakdown of Rhetorical Phrases Employed in the Thomas Proceedings

Invocation of “lynching”: 15 times ● Judge Thomas invoked “lynching” five times on the following pages: 10, 157, 202. ● Chairman Biden invoked “lynching” two times on the following pages: 378. ● Ms. Fitch invoked “lynching” three times on the following pages: 378. ● Sen. Kohl invoked “lynching” two times on the following pages: 424, 425. ● Ms. Berry invoked “lynching” two times on the following pages: 424. ● Ms. Alvarez invoked “lynching” one time on the following page: 425.

Hill described as living in “fantasy”: 22 times ● Sen. Specter described Hill as living in a “fantasy” seven times on the following pages: 83, 92, 438, 553, 554, 562. ● Professor Hill denied living in a “fantasy” three times on the following pages: 83, 88, 97. ● Sen. Heflin questioned whether Hill lived in a “fantasy” five times on the following pages: 87, 88, 161, 188, 299. ● Judge Hoerchner denied that Hill lived in a “fantasy” one time on the following page: 291. ● Ms. Wells denied that Hill lived in a “fantasy” one time on the following page: 326. ● Ms. Alvarez described Hill as living in a “fantasy” one time on the following page: 386. ● Mr. Kothe described Hill as living in a “fantasy” two times on the following page: 553. ● Mr. Doggett described Hill as living in a “fantasy” one time on the following page: 562. ● Mr. Stewart described Hill as living in a “fantasy” one time on the following page: 582.

Discussion of “racism”: 10 times ● Judge Thomas discussed “racism” in the proceedings four times on the following pages: 9, 202, 205. ● Sen. Hatch discussed “racism” in the proceedings one time on the following page: 204. ● Sen. Kennedy discussed the absence of “racism” in the proceedings two times on the following page: 308. ● Sen. Kohl discussed the absence of “racism” in the proceedings two times on the following pages: 424, 425. ● Ms. Newman discussed “racism” in the proceedings four times on the following pages: 592.

Discussion of being “humiliated”: 6 times ● Judge Thomas self-identified as being “humiliated” two times on the following pages: 8, 241. ● Professor Hill described the most “humiliating” instance of sexual harassment two times on the following pages: 56, 57. ● Judge Hoerchner described hearing that Professor Hill felt “humiliated” one time on the following page: 277. ● Ms. Saxon delegitimizes Professor Hill’s sentiments of feeling “humiliated” one time on the following page: 590.

Debates over who was the “victim”: 8 times ● Judge Thomas self-identified as being the “victim” one time on the following page: 9. ● Ms. Alverez rejected the notion that Professor Hill could, in any way, be considered a “victim” four times on the following pages: 338, 340, 374.129 ● Ms. Johnson rejected the notion that Professor Hill could, in any way, be considered a “victim” two times on the following page: 587. ● Ms. Saxon rejected the notion that Professor Hill could, in any way, be considered a “victim” one time on the following page: 590.

Chairman Biden reminded witness that they “are under oath”: 5 times ● Chairman Biden reminded witness that they “are under oath” five times on the following pages: 325, 326, 327, 327, 365.130

129 As Ms.Alvarez crudely remarked in her opening statement,

“On Friday, [Professor Hill] played the role of a meek, innocent, shy Baptist girl from the South who was a victim of this big, bad man. I don’t know who she was trying to kid. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 338. 130 Four of the five reminders Chairman Biden issued were addressed to the witnesses for Hill.

Appendix F

Analysis of the Rhetoric Employed in the Kavanaugh Proceedings

Appendix G

Breakdown of Rhetorical Phrases Employed in the Kavanaugh Proceedings

Dr. Ford praised for her “courage” and/or “bravery”: 24 times ● Ranking Member Feinstein praised Dr. Ford for her “courage” and/or “bravery” one time: 50:27-50:34. ● Sen. Leahy praised Dr. Ford for her “courage” and/or “bravery” two times: 1:40:50-1:41:26. ● Sen. Durbin praised Dr. Ford for her “courage” and/or “bravery” two times: 1:51:36-1:52:22. ● Sen. Coons praised Dr. Ford for her “courage” and/or “bravery” two times: 2:51:42-2:52:14; 2:53:56-2:54:02. ● Sen. Blumenthal praised Dr. Ford for her “courage” and/or “bravery” three times: 3:01:02-3:02:02; 3:04:14-3:04:31; 8:22:37-8:22:59. ● Sen. Hirono praised Dr. Ford for her “courage” and/or “bravery” two times: 4:09:23-4:09:44; 8:38:04-8:38:26. ● Sen. Booker praised Dr. Ford for her “courage” and/or “bravery” six times: 4:19:15-4:19:38; 4:20:15-4:20:29; 4:23:11-4:23:58; 8:53:57-8:54:08. ● Sen. Harris praised Dr. Ford for her “courage” and/or “bravery” five times: 4:30:50-4:31:14; 4:31:40-4:31:52; 4:35:41-4:36:12. ● Chairman Grassley praised Dr. Ford for her “courage” and/or “bravery” one time: 4:44:15-4:44:32.

Dr. Ford thanked for coming forward: 21 times ● Chairman Grassley thanked Dr. Ford for coming forward one time: 35:05-35:20. ● Ranking Member Feinstein thanked Dr. Ford for coming forward two times: 49:14-49:21; 1:29:26-1:29:28. ● Sen. Leahy thanked Dr. Ford for coming forward one time: 1:39:47. ● Sen. Durbin thanked Dr. Ford for coming forward one time: 1:52:09. ● Sen. Whitehouse thanked Dr. Ford for coming forward two times: 2:22:39-2:22:42; 2:27:44-2:27:46. ● Sen. Klobuchar thanked Dr. Ford for coming forward two times: 2:35:31-2:35:33; 2:40:36-2:40:39. ● Prosecuting Attorney Rachel Mitchell thanked Dr. Ford for coming forward one time: 2:43:33-2:43:36.

● Sen. Coons thanked Dr. Ford for coming forward three times: 2:49:15-2:49:37; 2:50:29-2:50:31; 2:53:27-2:54:02. ● Sen. Blumenthal thanked Dr. Ford for coming forward one time: 3:00:42-3:00:48. ● Sen. Hirono thanked Dr. Ford for coming forward two times: 4:08:04-4:08:09; 4:10:01-4:10:04. ● Sen. Booker thanked Dr. Ford for coming forward one time: 4:18:12-4:18:15. ● Sen. Harris thanked Dr. Ford for coming forward four times: 4:31:40-4:31:52; 4:35:41-4:35:59. Senators express that they “believe” Dr. Ford: 5 times131 ● Sen. Durbin expressed that he believed Dr. Ford one time: 1:52:10-1:52:22. ● Sen. Blumenthal expressed that he believed Dr. Ford two times: 3:00:42-3:00:57; 3:02:02-3:02:56. ● Sen. Harris expressed that she believed Dr. Ford two times: 4:31:40-4:31:52.

Anita Hill invoked: 9 times ● Ranking Member Feinstein discussed Anita Hill four times: 52:36-53:09; 54:07-54:19; 56:02-56:19. ● Sen. Leahy discussed Anita Hill one time: 1:40:33-1:40:42. ● Sen. Durbin discussed Anita Hill one time: 1:52:57-1:53:04. ● Sen. Klobuchar discussed Anita Hill two times: 2:29:56-2:30:12; 7:32:29-7:32:54. ● Sen. Blumenthal discussed Anita Hill one time: 8:25:08-8:25:10.

Nominee “unequivocally” denied allegations: 5 times ● Judge Kavanaugh “unequivocally” denied Dr. Ford’s allegations two times: 5:40:51-5:40:57; 5:57:35-5:57:40. ● Sen. Durbin discussed Judge Kavanaugh’s “[unequivocal]” denial two times: 7:08:48-7:09:29. ● Sen. Coons discussed Judge Kavanaugh’s “[unequivocal]” denial one time: 8:04:41-8:04:44.

“Left-wing opposition groups” mentioned: 1 time ● Judge Kavanaugh mentioned “left-wing opposition groups” one time: 5:47:13-5:47:39. 132

Crosstalk: 17 times ● Ranking Member Feinstein engaged in crosstalk one time: 1:28:40-1:28:56. ● Counsel Bromwich engaged in crosstalk two times: 2:54:48-2:54:50. ● Chairman Grassley engaged in crosstalk two times: 3:11:54-3:12:03; 6:56:46-6:57:09. ● Sen. Whitehouse engaged in crosstalk one time: 4:43:17-4:43:19. ● Sen. Kennedy engaged in crosstalk one time: 4:43:50-4:43:53. ● Sen. Leahy engaged in crosstalk two times: 6:58:31-6:58:34; 7:00:26-7:00:28.

131 On the other side of the aisle, the belief extended to Kavanaugh, according to Sen. Tillis is his belief that “[Brett’s] going to be on the bench. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 8:48:41-8:48:47. 132 In his words, he declared that “this whole two-week effort has been a calculated and orchestrated political hit, fueled with the apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons.And millions of dollars in money from outside left-wing opposition groups. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 5:47:13-5:47:39.

PAGE 134

● Judge Kavanaugh engaged in crosstalk eight times: 6:58:39-6:58:42; 6:58:48-6:58:51; 6:59:04-6:59:11; 7:00:42-7:00:48; 7:01:28-7:01:36; 7:01:44-7:01:46; 7:02:42-7:02:43; 7:22:05-7:22:08.

Former Chairman Joe Biden invoked: 7 times ● Chairman Grassley invoked former Chairman Joe Biden’s comment regarding FBI reports five times: 43:08-44:01; 7:36:52-7:37:49.133 ● Sen. Lee invoked former Chairman Joe Biden’s comment regarding FBI reports two times: 8:14:55-8:15:55.

133 Sen. Lee emphasized “that there is significant precedent from our former Chairman of this committee, Chairman Joe Biden. ” Republicans invoked former Chairman Biden multiple times to dismiss the necessity of an FBI investigation and, by extension, the necessity of FBI reports in these proceedings. Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 8:14:56-8:15:31.

Appendix H

Comprehensive Comparative Analysis of the Rhetoric Employed in the Thomas and Kavanaugh Proceedings

Appendix I

Comparative Breakdown of Rhetorical Phrases Employed in the Thomas and Kavanaugh Proceedings

Invocation of “hell”: 14 times total ● Thomas Proceedings: 7 times o Judge Thomas described the ordeal as “hell” three times on the following pages: 205, 234, 251.134 o Chairman Biden invoked “hell” three times on the following pages: 366, 381.135 o Sen. Simpson invoked “hell” one time on the following page: 581. ● Kavanaugh Proceedings: 7 times o Sen. Graham invoked “hell” three times: 7:16:38-7:16:44; 7:17:37-7:17:48.136 o Judge Kavanaugh invoked “hell” one time: 7:17:40-7:17:44. o Sen. Sasse invoked “hell” one time: 8:17:26-8:17:46. o Sen. Booker invoked “hell” two times: 8:52:13-8:52:16.

“Civic duty” to report: 17 times total ● Thomas Proceedings: 7 times o Professor Hill described her motivation for coming forward as “civic duty” two times on the following pages: 40, 68. o Chairman Biden described Professor Hill’s motivation for coming forward as “civic duty” one time on the following page: 271. o Mr. Paul described Professor Hill’s motivation for coming forward as “civic duty” two times on the following pages: 278, 293. o Judge Hoerchner described Professor Hill’s motivation for coming forward as “civic duty” two times on the following pages: 291, 317.

134 “Judge THOMAS. But to destroy me, Senator, I would have preferred an assassin’s bullet to this kind of living hell that they have put me and my family through. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 205. 135 “The CHAIRMAN. ‘Hell hath no fury […]’” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 366. 136 Sen. Graham invoked “hell” in the following exchange: “GRAHAM: Would you say you’ve been through hell? KAVANAUGH: I—I’ve been through hell and then some. GRAHAM: This is not a job interview. KAVANAUGH: Yes. GRAHAM: This is hell. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:17:37-7:17:48.

● Kavanaugh Proceedings: 10 times o Dr. Ford described her motivation for coming forward as “civic duty” three times: 1:04:10-1:04:23; 1:13:27-1:13:37; 1:16:42-1:17:05. o Sen. Coons described Dr. Ford’s motivation for coming forward as “civic duty” two times: 2:50:04-2:50:19; 2:53:27-2:53:38. o Sen. Booker described Dr. Ford’s motivation for coming forward as “civic duty” four times: 4:18:17-4:18:46; 8:51:31-8:51:46. o Sen. Harris described Dr. Ford’s motivation for coming forward as “civic duty” one time: 4:30:58-4:31:14. “11th hour” attempts to dismantle nomination: 4 times total ● Thomas Proceedings: 3 times o Mr. Paul rejected the theory that “Professor Hill’s allegations [were] an 11th-hour fabrication” one time on the following page: 278.137 o Sen. Kennedy rejected the theory that Professor Hill’s allegations were an “11th hour” attempt to dismantle Judge Thomas’ nomination one time on the following page: 307. o Ms. Alvarez agreed with the theory that Professor Hill’s allegations were an “11th hour” attempt to dismantle Judge Thomas’ nomination one time on the following page: 341. ● Kavanaugh Proceedings: 1 time o Chairman Grassley agreed with the theory that Dr. Ford’s allegations were an “11th hour” attempt to dismantle Judge Kavanaugh’s nomination one time: 39:12-39:30.

“Categorical” denial: 17 times total ● Thomas Proceedings: 14 times o Judge Thomas “categorically” denied Professor Hill’s allegations nine times on the following pages: 6, 157, 161, 162, 195, 198, 218, 239. o Sen. Leahy characterized Judge Thomas’ denial as “categorical” three times on the following pages: 196, 197, 239. o Chairman Biden characterized Judge Thomas’ denial as “categorical” one time on the following page: 215. o Ms. Fitch characterized Judge Thomas’ denial as “categorical” one time on the following page: 361. ● Kavanaugh Proceedings: 3 times o Chairman Grassley characterized Judge Kavanaugh’s denial as “categorical” one time: 40:45-40:47. o Judge Kavanaugh “categorically” denied Dr. Ford’s allegations two times: 5:40:39-5:40:57; 5:57:35-5:57:41.

Characterization of the hearings as a “circus”: 9 times total ● Thomas Proceedings: 2 times o Judge Thomas described the hearings as a “circus” two times on the following pages: 157, 249. ● Kavanaugh Proceedings: 7 times

137 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 278.

o Chairman Grassley described the hearings and the media surrounding the hearings as a “circus” one time: 39:31-39:49. o Judge Kavanaugh described the hearings and the media surrounding the hearings as a “circus” four times: 5:47:40-5:47:43; 6:12:25-6:12:31; 7:23:16-7:23:22. o Sen. Hatch described the hearings and the media surrounding the hearings as a “circus” one time: 8:00:41-8:00:57. o Sen. Lee described the hearings and the media surrounding the hearings as a “circus” one time: 8:13:23-8:13:27. [Laughter]: 54 times total ● Thomas Proceedings: 41 times o Moments of collective laughter erupted in the Senate Caucus Room forty-one times on the following pages: 87, 88, 95, 96, 101, 135, 198, 218, 222, 244, 246, 247, 248, 282, 290, 299, 300, 302, 304, 311, 328, 330, 340, 362, 368, 381, 419, 435, 559, 568, 598. ● Kavanaugh Proceedings: 13 times o Moments of collective laughter erupted in the Senate Caucus Room thirteen times: 1:22:59-1:23:02; 1:45:09-1:45:11; 1:50:00-1:50:03; 1:50:07-1:50:13; 2:55:54-2:55:56; 3:03:36-3:03:40; 4:39:24-4:39:31; 4:44:13-4:44:15; 6:34:36-6:34:38; 7:22:27-7:22:29; 7:24:30-7:24:31; 8:41:34-8:41:45.

Destruction of the nominee’s “good name”: 33 times total ● Thomas Proceedings: 19 times o Ranking Member Thurmond commented on the destruction of Judge Thomas’ “good name” because of the proceedings one time on the following page: 4. o Judge Thomas commented on the destruction of his “good name” because of the proceedings thirteen times on the following pages: 5, 9, 157, 184, 206, 249, 251, 258. o Sen. DeConcini commented on the destruction of Judge Thomas’ “good name” because of the proceedings two times on the following pages: 255, 256.138 o Ms. Alvarez commented on the destruction of Judge Thomas’ “good name” because of the proceedings two times on the following pages: 337, 425. o Ms. Fitch commented on the destruction of Judge Thomas’ “good name” because of the proceedings one time on the following page: 343. ● Kavanaugh Proceedings: 14 times o Dr. Ford commented on her name to illuminate the ways in which she had been harassed and threatened since the publicization of her name one time: 1:15:31-1:15:52. o Judge Kavanaugh commented on the destruction of his “good name” because of the proceedings six times: 5:41:44-5:42:21; 5:46:57-5:47:10; 5:48:51-5:49:03; 6:32:49-6:33:02.

138 Sen. DeConcini asked: “And my question to you is, do you think you can recover from dying a thousand deaths, having your name and your reputation ripped from you through this process?” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 256.

o Sen. Durbin commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 7:11:44-7:12:05.139 o Sen. Cornyn commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 7:29:11-7:29:23. o Sen. Coons commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 8:08:39-8:09:00. o Sen. Tillis commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 8:45:17-8:45:26. o Sen. Cruz commented on the destruction of both Dr. Ford’s and Judge

Kavanaugh’s “good name” because of the proceedings three times: 8:54:52-8:54:55; 9:03:14-9:03:25.140

Hearings as a “national disgrace”: 3 times total ● Thomas Proceedings: 1 time o Judge Thomas characterizes the hearings as a “national disgrace” one time on the following page: 157. ● Kavanaugh Proceedings: 2 times o Judge Kavanaugh characterizes the hearings as a “national disgrace” one time: 5:43:30-5:43:34. o Sen. Hatch characterizes the hearings as a “national disgrace” one time: 8:01:25-8:01:27.

Discussion of nominee’s “character”: 53 times total ● Thomas Proceedings: 37 times o Ranking Member Thurmond defended Judge Thomas’ “character” three times on the following page: 5. o Judge Thomas defended his own “character” two times on the following pages: 9, 223. o Sen. Kohl commended Professor Hill’s “character” one time on the following page: 131. o Chairman Biden commended Judge Thomas’ “character” five times on the following pages: 223, 326, 328. o Sen. Simpson attacked Professor Hill’s “character,” thereby defending Judge Thomas’ “character,” one time on the following page: 254. o Mr. Paul defended Professor Hill’s “character” one time on the following page: 293. o Judge Hoerchner defended Professor Hill’s “character” three times on the following pages: 296, 303, 317. o Sen. Kennedy rebuked the “character assassination” of Professor Hill two times on the following page: 307. o Ms. Wells defended Professor Hill’s “character” two times on the following pages: 326, 327.

139 Sen. Durbin and Sen. Coons, both Democrats, invoked Kavanaugh’s good name to entreat him to call for an independent FBI investigation into Ford’s allegation. 140 Sen. Cruz lamented that both Ford and Kavanaugh have had their names “dragged through the mud. ” Committee on the Judiciary Nomination of Brett M. Kavanaugh, 8:54:52-8:54:55.

o Mr. Carr defended Professor Hill’s “character” two times on the following page: 326. o Ms. Alvarez defended Judge Thomas’ “character” two times on the following pages: 338, 425. o Ms. Fitch defended Judge Thomas’ “character,” and engaged in the character assassination of Professor Hill, three times on the following pages: 342, 358, 378. o Ms. Berry defended Judge Thomas’ “character” one time on the following page: 351. o Ms. Holt defended Judge Thomas’ “character” two times on the following pages: 381, 413. o Sen. Specter defended Judge Thomas’ “character” three times on the following pages: 381, 382. o Sen. Brown defended Judge Thomas’ “character” one time on the following page: 413. o Mr. Grayson defended Judge Thomas’ “character” one time on the following page: 436. o Mr. Doggett defended Judge Thomas’ “character” two times on the following page: 566. ● Kavanaugh Proceedings: 16 times o Ranking Member Feinstein discussed the importance of “character” in these proceedings two times: 55:17-56:00. o Sen. Hirono discussed the importance of “character” in these proceedings seven times: 4:08:16-4:08:27; 4:08:52-4:09:01; 4:09:07-4:09:12; 8:39:14-8:39:21; 8:39:28-8:39:40.141 o Judge Kavanaugh defended his own “character” four times and denounced the “grotesque and coordinated character assassination” of his good name: 5:47:52-5:48:04; 6:08:06-6:08:13; 6:21:14-6:21:23; 6:21:49-6:21:58.142 o Chairman Grassley defended Judge Kavanaugh’s “character” two times: 8:11:34-8:11:44; 8:11:55-8:12:01. o Sen. Cruz defended Judge Kavanaugh’s “character” one time: 8:55:06-8:55:22.

“Destroyed” in the process: 11 times total ● Thomas Proceedings: 6 times o Judge Thomas remarked that everything he spent his entire life building had been “destroyed” by these proceedings two times on the following pages: 158, 206. o Sen. Simpson remarked that Professor Hill had been “destroyed” by coming forward two times on the following page: 254. o Mr. Paul remarked that Professor Hill had been “destroyed” by coming forward one time on the following page: 318. o Mr. Doggett remarked that Judge Thomas had been “destroyed” by these proceedings one time on the following page: 431.

141 Sen. Hirono emphasized the importance of the “character of a man we are considering for a lifetime appointment to the Supreme Court. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 4:08:07-4:09:44. 142 In his defense, Kavanaugh stated that “Dr. Ford’s allegation is radically inconsistent with my record and my character from my youth to the present day. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 6:08:06-6:08:16.

● Kavanaugh Proceedings: 5 times o Judge Kavanaugh remarked that everything he spent his entire life building had been “destroyed” by these proceedings five times: 5:41:57-5:42:29; 5:46:57-5:47:01; 6:31:54-6:32:00; 7:14:35-7:14:40.143

“Impossible to prove a negative”: 9 times total ● Thomas Proceedings: 8 times o Sen. Hatch stated that it was “impossible to prove a negative,” thereby sympathizing with Judge Thomas’ position, two times on the following pages: 188, 189. o Sen. Brown stated that it was “impossible to prove a negative,” thereby sympathizing with Judge Thomas’ position, five times on the following page: 260.144 o Judge Thomas lamented his predicament, of being forced to “prove a negative,” one time on the following page: 263.145 ● Kavanaugh Proceedings: 1 time o Sen. Cornyn stated that it was “impossible to prove a negative,” thereby sympathizing with Judge Kavanaugh’s position, one time: 7:28:00-7:28:04.

143 “My family and my name have been totally and permanently destroyed. ” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 5:42:11-5:42:16. 144 “Senator BROWN. Basically, what we are called upon to prove or you are called upon to prove is a negative. You are called upon to prove that 10 years ago you didn’t do something. I am not sure how you do that. I am not sure how you prove a negative. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 260. 145 “Judge THOMAS. It just seems as though I am here to prove the negative in a forum without rules and after the fact. ” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 263.

Appendix J

Photograph of Brett M. Kavanaugh’s High School Yearbook

Appendix K

Comparative Length of Thomas and Kavanaugh Proceedings

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