Has Judge Brett Kavanagh’s confirmation become a referendum on the #MeToo movement? Senator Dianne Feinstein rightly noted that “the entire country is watching how we handle these allegations.” During the proceedings, Senator Mazie Hirono quoted a letter from the National Task Force to End Sexual and Domestic Violence, stating, “This moment has become a crucible. It’s a test of our progress. Do we start by believing victims of sexual assault and treating them with dignity, or don’t we?” If Judge Kavanaugh is confirmed to the Supreme Court, has #MeToo suffered a devastating blow?
We think the answer is no. As Professor Murphy first explained on a thread on Twitter, transitional justice can help explain both how we arrived here and why the outcome of the confirmation battle might be overstated. Transitional justice refers to the process of dealing with past wrongdoing in the context of a transition away from conflict and/or repression. Think of settings like South Africa’s movement away from apartheid or Colombia’s current attempts to turn the page on decades of conflict. Transitional justice involves many different kinds of processes including trials, truth commissions, and reparations.
Why might lessons from transitional justice be useful here? First, #MeToo, like other settings of transitional justice, addresses wrongdoing that occurred against a background of structural inequality. In the United States and across the globe, women continue to face significant obstacles to equality vis-à-vis men regarding which genuine opportunities they enjoy and what power to shape the institutional rules and norms exists.
Second, #MeToo shares with other instances of transitional justice wrongdoing that was or is normalized—a basic fact of life around which women have had to orient their conduct. Early evidence suggests that at least half a million people have responded to #MeToo to articulate past experience of sexual harassment or assault and that number grows every day. The scope of workplaces, social settings, and other locations from which wrongs have emerged is expansive; few, if any, have emerged untouched. Such wrongdoing has become a basic fact of life for women in the workforce; the expectation of being harassed or assaulted is something women have to take into account when deliberating about which jobs to accept, which actions by employers or co-workers to contest, and how to act in the workplace.
Another point of similarity is that the wrongdoing has been or is being committed with impunity and is responded to with denial. In transitional justice, wrongdoers may outright deny that any wrong took place such as denials of the existence of political prisoners. A second form of denial is descriptive, concerning how certain actions are characterized and described. Instead of acknowledging torture, for example, there is a discussion of “regrettable excesses.” A third form of denial acknowledges certain factual claims, but distances personal or institutional responsibility for such wrongs. There might be, for example, the attribution of responsibility to forces contesting a government rather than to government officials. Alternately, this downplaying of responsibility can take the form of pointing to wrongs for which one’s political opponents were implicated instead of acknowledging and assuming responsibility for wrongdoing of one’s own.
We see many of these forms of denial made against #MeToo claimants. In fact, many of them were offered in regards to Dr. Ford’s allegations against Judge Kavanaugh While thankfully Judge Kavanaugh never himself offered the argument that attempted rape and sexual assault would be acceptable behavior, many commentators determined that the different sexual mores of the time meant such behavior, even if proved, would not be disqualifying. Others have suggested that Dr. Ford’s claim could not disqualify Judge Kavanaugh, because then so many men who had engaged in similar behavior would also be open to legal or moral claims of wrongdoing. Others went still further concluding such behavior was neither wrong then, nor wrong now, as boys will be boys. If such arguments motivated those voting on or supporting Judge Kavanaugh’s confirmation, what does that mean for #MeToo’s promise of change?
Lastly, like settings of more formal transitional justice, #MeToo has generated optimism about the possibility of countering impunity coupled with fundamental uncertainty about prospects of success. In such contexts of possible transition, particular cases and responses assume symbolic importance. Many now believe Judge Kavanaugh’s hearing has such bearing. Like in transitional justice settings, #MeToo runs the risk that particularly prominent cases or processes are taken to be indicative or even dispositive of whether aspirations for transformation will be realized. Unlike more routine cases and claims for justice, victims seeking redress or acknowledgement of the wrongs prompting transitional justice often have a pervasive lack of trust and faith in institutions addressing wrongdoing. So for symbolic cases, defeats can be particularly crippling.
While the Kavanaugh confirmation has an incredibly high profile, it also meaningfully differs from some of transitional justice’s most important and most typical test cases. Dr. Ford’s and others’ allegations against Judge Kavanaugh are, for many, reasonably thought of as a particularly hard case for #MeToo and thus not an indicative test case of either #MeToo’s promise in seeking accountability or potential peril in running afoul of basic constitutional protections for defendants. Senate confirmation hearings are highly politicized and governed by processes that may not be well suited to investigate crimes committed long in the past. Senate confirmation hearings do not make factual findings or have a clear burden of proof as they do not reach a legal conclusion, but rather provide an up or down vote on the applicant’s ascendance to the Supreme Court. Moreover, the setting and the stakes may render it difficult for many to disaggregate their strong political preferences unrelated to #MeToo and their views on the credibility of Dr. Ford and Judge Kavanaugh. In addition, the claim emerged in a highly controversial fashion with the leaking of a confidential letter, rather than through a formal transitional process for seeking either truth or justice.
Despite these differences, we do think transitional justice still provides some meaningful lessons about the possibility of transforming a society. First, doing so may provide hope that nations can heal after decades or centuries of systematic wrongdoing. Second, other countries’ transitional experiences may provide paths for a way forward. If you look across countries that have successfully achieved transitional justice, they had multiple responses to ending normalized wrongdoing. And they were not derailed by even very high-profile disappointments. For instance, in South Africa, transitional justice was not fundamentally undermined by former President P.W. Botha’s refusal to testify about or apologize for apartheid and his exhortation that the country simply move on from the past with no formal reckoning.
Disappointment is inevitable if all hope is placed in one process or on the outcome in one high-profile claim of wrongdoing. Efforts to deal with wrongdoing must be multiple in number and form and also ongoing for an extended period of time. For instance, in seeking transitional justice for the dirty war, Argentina first compiled a massive, but preliminary accounting of wrongdoing entitled Nunca Más in the 1980s. But the judiciary did not begin engaging in truth trials that provided more fulsome investigations and publicly identified wrongdoers until 1995. Yet, by 2009 over 1400 people had been charged or were under formal investigation.
Will Judge Kavanaugh’s confirmation derail #MeToo’s other positive steps forward? We don’t think so. First, we’re not so sure that we’re done with seeking truth and accountability from Judge Kavanaugh. There is still the looming ethics complaint and possible litigation from Michael Avenatti’s client Julie Swetnik or even an impeachment proceeding. But more importantly, at the same time as Judge Kavanaugh’s hearings, Bill Cosby was sentenced for the rape of Andrea Constand, McDonald’s employees conducted a ten-city #MeToo walkout, former President Barack Obama refused to endorse alleged domestic abuser Keith Ellison, Joe Biden publicly acknowledged his failures regarding the treatment of Anita Hill during the Thomas confirmation hearings, and a Yazidi activist and Congolese doctor were awarded the 2018 Nobel Peace Prize for their efforts to end rape as a weapon of war. A flood of victims, including Connie Chung, inspired by Dr. Ford’s example explained why they didn’t report and spoke the truth of their assaults. One even named a sitting congressman as her assailant.
Perhaps the most lasting legacy of the confirmation battle will not be Judge Kavanaugh’s imprint on the Court, but the bravery Dr. Ford has inspired in others.