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Why This Time Is Different

There are many parallels between Clarence Thomas and Brett Kavanaugh's circumstances, but a lot has changed in American politics, too.

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It’s impossible to think about the sexual assault allegations against Supreme Court nominee Brett Kavanaugh without thinking about Anita Hill. In October 1991, the law professor quietly gave the Senate Judiciary Committee an affidavit describing multiple instances of sexual harassment by Clarence Thomas, a federal judge under consideration to replace Thurgood Marshall on the Supreme Court. The fight over her account transformed Thomas’s nomination into the most caustic confirmation battle to date.

Hill told the committee that Thomas had made sexual advances towards her on multiple occasions during the two years she worked as his assistant in the Equal Employment Opportunity Commission and that he frequently described his sexual proclivities and his interest in pornography. Thomas denounced Hill’s allegations and told the committee that he was the victim of a “high-tech lynching.” Enough senators ultimately sided with Thomas, confirming him in a 52-48 vote—including 11 Democrats.

Twenty-seven years later, another Supreme Court nominee’s confirmation has been thrown in doubt by sexual misconduct allegations. Christine Blasey Ford, a professor at the Palo Alto University, sent a confidential and anonymous letter to a high-ranking Democratic senator in late July describing an encounter with Kavanaugh when they were in high school in the early 1980s. She wrote that Kavanaugh “physically and sexually assaulted me” during a house party in suburban Maryland.

Kavanaugh physically pushed me into a bedroom as I was headed for a bathroom up a short stair well from the living room. They locked the door and played loud music precluding any successful attempt to yell for help.

Kavanaugh was on top of me while laughing with [name redacted by CNN], who periodically jumped onto Kavanaugh. They both laughed as Kavanaugh tried to disrobe me in their highly inebriated state. With Kavanaugh’s hand over my mouth I feared he may inadvertently kill me.

Ford wrote that she managed to escape soon thereafter and hasn’t seen Kavanaugh in person since the encounter. Rumors about her letter first became public last week after Kavanaugh’s confirmation hearings had already wrapped up. As its release appeared to become inevitable, Ford allowed The Washington Post to disclose her identity on Sunday. “These are all the ills that I was trying to avoid,” she told the newspaper. “Now I feel like my civic responsibility is outweighing my anguish and terror about retaliation.” She reportedly is willing to testify before the Senate.

Kavanaugh has flatly denied Ford’s account. “This is a completely false allegation,” he said in a statement on Monday. “I have never done anything like what the accuser describes—to her or to anyone. Because this never happened, I had no idea who was making this accusation until she identified herself yesterday.” Kavanaugh added that he is “willing to talk to the Senate Judiciary Committee in any way the Committee deems appropriate to refute this false allegation, from 36 years ago, and defend my integrity.” The White House is also standing by its nominee. “What a ridiculous question,” President Donald Trump replied when asked on Monday if Kavanaugh had offered to withdraw.

Many observers have noted the similarities between 1991 and today. But it’s also worth examining the differences, and what they mean not only for Ford and Kavanaugh, but for the Senate, the Supreme Court, and ultimately the country.

The most significant change between Hill’s experience in 1991 and Ford’s today is the Senate itself. When Hill arrived to testify at the Capitol almost three decades ago, she was greeted by a chamber that was 98 percent male, including every member of the Judiciary Committee. The Senate operated akin to an old boys club, where personal relationships between the senators could carry more weight than partisan or practical concerns. Joe Biden, who chaired the committee at the time, came under intense criticism in the years that followed for letting the chummy, backslapping environment shape his response to Hill’s allegations.

“We went to see Biden, because we were so frustrated by [the process],” then-Colorado Representative Pat Schroeder, one of Hill’s supporters during the hearing, recounted last year. “And he literally kind of pointed his finger and said, you don’t understand how important one’s word was in the Senate, that he had given his word to [Danforth] in the men’s gym that this would be a very quick hearing, and he had to get it out before Columbus Day.”

The Senate has lost a great deal of that collegiality over the past three decades. It has also become more diverse: 21 women now serve as senators, a tenfold increase from 1991. Kavanaugh now needs the support of Maine’s Susan Collins and Alaska’s Lisa Murkowski, two moderate Republicans who received the lion’s share of pressure from activists on both sides, just to be confirmed. And while Hill testified before an all-male committee three decades ago, Ford’s questioners would include four Democratic women if she makes a similar appearance. (No Republican women serve on the Senate Judiciary Committee.)

That gender shift can be traced back to Hill herself. The Senate’s treatment of her, as well as the optics of the all-male committee’s harsh questioning, sparked a backlash among women voters nationwide. The ensuing 1992 elections became known as the “Year of the Woman” after voters elected an unprecedented number of women candidates to Congress, including four new senators. Among them was San Francisco Mayor Dianne Feinstein, who now serves as the Judiciary Committee’s ranking Democratic member (and to whom Ford sent her letter, via her local congresswoman).

American politics is again experiencing a “Year of the Woman,” and changing cultural perceptions around sexual harassment and assault—sparked by Hill’s testimony and strengthened by the #MeToo movement—appear to be affecting how senators are processing Ford’s allegations. Hill’s account was met with disbelief and disdain from many of Thomas’s supporters. Missouri’s John Danforth, Thomas’s chief backer in the Senate, complained on the Senate floor that the confirmation process has “been turned into the worst kind of sleazy political operation with no effort spared to assassinate the character of Clarence Thomas.” Utah’s Orrin Hatch floated the theory during Hill’s testimony that she invented the allegations using details from a minor federal court case and the plot of The Exorcist.

Top Republican leaders today appeared more cognizant of, if nothing else, appearing to be sympathetic. “Anyone who comes forward as Dr. Ford has deserves to be heard, so I will continue working on a way to hear her out in an appropriate, precedented and respectful manner,” Chuck Grassley, the Judiciary Committee’s chairman, said in a statement. White House adviser Kellyanne Conway also struck a warm tone. “This woman should not be insulted and she should not be ignored,” she said during a Fox News interview. The aesthetic shift should not be mistaken for a substantive one, however: Grassley has not announced any plans to delay Thursday’s vote, and the White House isn’t backing down from Kavanaugh’s nomination.

There’s a broader social and cultural context that shapes how women’s stories of sexual misconduct are heard. In Ford’s case, her account will be filtered through one of the most political lenses possible. Supreme Court nominations are now significantly more contentious than they were a generation ago. After Thomas joined the court—with the votes of 11 Democrats, no less—the Senate went on to approve Ruth Bader Ginsburg in a 96-3 vote in 1993 and Stephen Breyer in an 87-9 vote in 1994. Nominees stopped receiving near-unanimous support after Bush v. Gore, and while John Roberts was confirmed by a 78-22 margin, no other nominee has received more than three-quarters of the chamber’s support since then. Neil Gorsuch, the most recent successful nominee, received just 54 yes votes.

This makes Kavanaugh’s nomination a moment of genuine political peril for the Trump administration. His confirmation would be a crowning triumph for Republicans and the conservative legal movement. It would mark the culmination of a four-decade campaign to build a five-justice majority on the Supreme Court that would not only advance conservative legal views, but roll back the status quo on abortion rights, affirmative action, and the scope of federal power. The solid conservative majority would also serve as a bulwark against adventurous leftward policymaking for at least a generation. Victory has never been closer for conservatives.

Trump himself shows little interest in judicial politics, but he knows that many of his supporters care about it deeply. The president’s own lawyers have often struggled to keep him from tweeting and saying potentially incriminating things related to the Russia investigation. His fondness of weighing in on the news cycle is also well established. That makes it all the more remarkable that he’s largely kept quiet about the Kavanaugh allegations since they emerged last week, saying on Monday, “We want to go through a full process ... and hear everybody out.” There could be no greater testament to the fight’s political sensitivity and importance.

But the Republicans are also well aware of what might happen if senators decide against confirming Kavanaugh to the high court at this stage. Democrats could retake the Senate in November, and lame-duck Republicans could fail to push another nominee through before the new Congress takes over in January. It would be extremely unlikely that Trump could then find a nominee who would satisfy both the conservative legal movement and the new Democratic Senate. As a result, the Supreme Court could be left with only eight justices—evenly split between four conservatives and four liberals—until at least the next presidential election.

With that risk at hand, it’s possible that Republicans could force a vote to confirm Kavanaugh as early as next week. That move would place the credibility of two American institutions at stake. The Supreme Court’s only real power is its legitimacy in the eyes of the American public, and forcing through another justice who’s been accused of sexual misconduct is a surefire way to damage it. The Senate, meanwhile, could claim that voters gave them a mandate in 2016 to confirm judges like Kavanaugh, but the message it would send to many Americans is that women’s traumatic stories still don’t matter to them.