19 SEPTEMBER

Judge not, lest ye be judged

Just a week after it seemed likely he'd sail through confirmation hearings, President Donald Trump's pick to be the next US Supreme Court justice, Judge Brett Kavanaugh, faces a potential FBI investigation and Senate testimony from a woman accusing him of sexual assault.

His accuser, Professor Christine Blasey Ford, has not ruled out appearing next Monday before the Senate Judiciary Committee to testify, but said through her lawyers that an FBI investigation should be “the first step” before she is put “on national television to relive this traumatic and harrowing incident".

Kavanaugh has called Ford's allegations that he sexually assaulted her in 1982 "completely false". The Senate Judiciary Committee officially cancelled a meeting set this Thursday to vote on advancing his nomination.

Trump has stepped up his defence of Kavanaugh and expressed sympathy toward his nominee. “I feel so badly for him that he’s going through this, to be honest with you,” Trump told a news conference. “This is not a man that deserves this.”

NEWS WRAP

Tariff tit-for-tat hits Oz economy

The Australian sharemarket was down following President Trump’s latest round of tariffs on US$200bn worth of Chinese goods. China has responded by imposing tariffs on another US$60 billion worth of imported goods from the United States, including a 10 per cent tariff on LNG. Director of the Centre's Trade and Investment program, Stephen Kirchner, spoke to The Australian about the impact on the Australian economy. READ MORE HERE.
Sex and the City star Cynthia Nixon was trounced by New York Governor Andrew Cuomo in last Thursday's Democratic primary race. It was an, at times, toxic campaign that saw allegations of anti-semitism and bizarre attacks over bagel preferences. New USSC visiting fellow Bruce Wolpe took a look at the primary battle in his new, weekly midterms blog. READ MORE HERE.
The 2018 midterms are a record-breaking year for women in American politics, with more running for US Congress and state-wide office than any previous election. USSC researchers Matilda Steward and Zoe Meers broke down some of the stats on women candidates and races to watch in our latest midterms explainer. READ MORE HERE.
Hurricane Florence continues to bring misery to the waterlogged Carolinas, with persistent heavy rain. The storm killed at least 11 people in North Carolina, state officials said, and six people died in South Carolina. About 509,000 homes and businesses were still without electricity on Monday. READ MORE HERE.
Despite significant international outrage at some of the policies and actions of President Trump and his administration – best highlighted by the Pew surveys and more viscerally by the anti-Trump protests in London in July 2018 – anti-Americanism is less apparent under Trump than it was under President George W. Bush. Associate Professor in American Politics Brendon O'Connor has a few ideas as to why in his piece for The Conversation. READ MORE HERE.

I just want to say to the men of this country: Just shut up and step up. Do the right thing for a change.

Hawaiian Democratic Senator Mazie Hirono
Capitol Hill press conference on Brett Kavanaugh allegations
18 September 2018

ANALYSIS

Trump's Supreme Court nominee shows how political power determines justice

Thomas Adams
Lecturer (American Studies & History)

When the news broke of Dr Christine Blasey's accusations of sexual assault against US Supreme Court nominee Brett Kavanaugh, the immediate reaction was to think back 27 years to the allegations of sexual harassment by Professor Anita Hill against then Supreme Court nominee Clarence Thomas.

Like Professor Hill's case against Judge Thomas, the reports of Judge Kavanaugh's alleged sexual assault of Dr Blasey arrived late during the process of confirmation hearings. And like in the case of Professor Hill, the accusations came to light only because of leaked information. In Professor Hill’s case, an FBI report on Judge Thomas that included the allegations was leaked to journalist Nina Totenberg. In Dr Blasey's case, a letter she sent to her elected representative, Senator Diane Feinstein, made clear her accusations but also her desire to remain anonymous. The contents of that letter have since been leaked as well. Judge Kavanaugh has denied the accusations, and the White House has stood by those denials.

While Judges Thomas and Kavanagh are each accused of crimes that involve sex, in Judge Thomas' case Professor Hill and her multiple corroborators alleged that he regularly sexually harassed Professor Hill and other women who worked underneath him. Under Title VII of the US's 1964 Civil Rights Act, sexual harassment is a form of workplace discrimination. While more recent allegations against Judge Thomas suggested that he may have also engaged in sexual assault at other times, sexual harassment in and of itself is a civil offence under American law.

Particularly galling in the case of Professor Hill's allegations, if Judge Thomas was engaging in such discrimination, he was doing so while directing the Equal Employment Opportunity Commission, the federal agency directed with enforcing anti-discrimination in the workplace.

In Judge Kavanaugh's case, there is an accusation that under Maryland law he committed attempted rape in the first degree (Maryland Code, Criminal Law — 3-309) through the use of physical force and suffocation. While Judge Thomas could have been subject to civil charges from his victims had they filed claims within the statute of limitations, there are no statute of limitations for Judge Kavanaugh's alleged crimes. He could, feasibly, still be charged to the fullest extent of the law and be "subject to imprisonment not exceeding life". The crimes here are different, even if both indicate a constitutional unfitness to serve on arguably the world's most important judicial body for a term that will also, with the darkest of irony, not exceed life.

In the more immediate term, the US Senate is faced with the prospect of confirming an alleged attempted first degree rapist who could still come in for prosecution. It may be that a Republican member of the Senate's Judiciary committee, as Republican Senator Jeff Flake of Arizona has indicated he might, will hold off on putting Judge Kavanaugh's nomination up for a vote until Dr Blasey and other possible witnesses can testify. Were that to occur, the legacy of Anita Hill's 1991 testimony before the same committee will once again be a point of comparison.

That time, Republicans as well as Democrats, including former vice president and prospective 2020 presidential candidate Joe Biden, enacted what would seem like a caricature of the way Western culture has impugned the motives and credibility of victims of sexual assault, if it did not still all too often occur.

The various realignments that have occurred in American politics since 1991 suggest that if Dr Blasey testifies, she can expect such treatment from only the Republican majority this time, rather than watching senators from both parties assail her and her motives. Still, Republicans do have a majority in the Senate.

Just as in 1991, a Supreme Court seat is the Holy Grail of that party's agenda — which not incidentally entails specific promises to their voters to strip women of the equal right to control their bodies. In all likelihood, no matter how much evidence is presented that Kavanaugh attempted to commit rape in the first degree, and no matter how much Republican senators, Mr Trump and Attorney-General Jeff Sessions like to talk about getting tough on crime, they will vote to confirm someone who could still theoretically face life in prison.

Political power determines justice, not the other way around. To paraphrase Upton Sinclair's definition of ideology, it's difficult to get someone to understand something when their power depends on them not understanding it.

What's new here? Not much.

First published in ABC Opinion & Analysis.

DIARY

The week ahead

Thursday, 20 September: President Trump scheduled to travel to Las Vegas for a campaign rally.
Thursday, 20 September: Last sitting day of Australian Parliament until Monday, October 15.
Friday, 21 September: International Day of Peace.
Monday, 24 September: Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, the woman who has accused him of attempted sexual assault, will have the opportunity to publicly testify before the US Senate Judiciary Committee.
Monday, 24 September: Close of rolls for Wentworth by-election at 8pm.

EVENT

Fear of automation and the rise of populism and protectionism

The American economy is being permanently affected by automation. In the coming years, an increasing number of individuals will lose their jobs as a result of automation and artificial intelligence. This will have widespread implications for the economy, but also potentially for politics and policy areas like immigration.

Peter Loewen is a professor at the Department of Political Science and the Munk School of Global Affairs & Public Policy at the University of Toronto, as well as a fellow at Stanford University's Center for Advanced Studies in the Behavioral Sciences. He'll join United States Studies Centre's CEO Professor Simon Jackman and director of its Innovation and Entrepreneurship program Claire McFarland to explore how fear about automation is related to support for populist candidates and parties, and for more protectionist public policy. Their discussion will rely on original data from a recent survey of American adults.

DATE & TIME
Wednesday, 10 October 2018
6pm–7.30pm

LOCATION
Level 17, 133 Castlereagh Street, Sydney, NSW

COST
$10

Register