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How The Hearing For Brett Kavanaugh's Accuser Could Have Unfair Elements

STEVE INSKEEP, HOST:

Supreme Court nominee Brett Kavanaugh has offered a blanket denial of accusations against him. He's offered some details of his personal life, and in an interview last night on Fox, he spoke of his testimony expected before the Senate later this week.

(SOUNDBITE OF FOX NEWS BROADCAST)

BRETT KAVANAUGH: We're looking for a fair process where I can be heard and defend the - my integrity, my lifelong record - my lifelong record of promoting dignity and equality for women starting with the women who knew me when I was 14 years old. I'm not going anywhere.

INSKEEP: Kavanaugh testifies Thursday, along with Christine Blasey Ford, one of the women who accused him of sexual misconduct decades ago. This hearing has drawn some comparisons to the hearing for Anita Hill, who accused Supreme Court nominee Clarence Thomas of sexual harassment back in 1991. Anita Hill's legal advisers then included Emma Coleman Jordan, who is now a professor at Georgetown Law School, and she's in our studios. Thanks for coming by.

EMMA COLEMAN JORDAN: Thank you.

INSKEEP: Does this hearing seem to you like it's being set up fairly?

JORDAN: I think there's some elements of it that have a great capacity for unfairness. One of those is this idea that the senators would not be asked to directly question the witness.

INSKEEP: Oh, there's been discussion of the all-male Republican side of the Senate Judiciary Committee maybe bringing in a woman, maybe an expert, some kind of prosecutor, a lawyer or even a former senator, somebody who's a woman to question her.

JORDAN: I think that's a mistake. And I think that has the capacity for deception and unfairness. I say deception because we do have an all-male contingent of Republicans on the Judiciary Committee. And bringing in someone who's a hired, outsourced lawyer does two things. It gives the impression that this is a trial. It isn't a trial. It is a political event. And secondly, it gives the impression that a woman is in a leadership role in the decision-making. My assumption is whoever they bring in is not going to vote. And we expect leadership from those who are elected to lead.

INSKEEP: You make a useful point when you say this is not a trial. It is a Senate hearing. This is senators making a decision about how they want to do their jobs. But people have raised questions of due process, of what is due process. Republicans are saying this is just an accusation. It's not a conviction. Democrats are saying where are the other witnesses? Where's the FBI investigation? What is the reasonable expectation of due process here?

JORDAN: Well, I think due process is probably the wrong framework as well because this is not litigation. It's not in a constitutional challenge. What we have here is a very talented man - that is Judge Kavanaugh. He's been on the court of appeals 12 years, accomplished record in many ways. He wants a promotion. He wants to be on the Supreme Court of the United States to join eight others who have gone through this process. And so I think it's the wrong framework to talk about due process because he is going through a process which has elements of political intrigue, smears and manipulation of the order of witnesses excluding certain witnesses. I want to say one thing, and that is the FBI has a very important role to play. I was once a special assistant to the attorney general, and I was liaison to the FBI during that time.

I think the FBI should have learned by now that you find the things that you're looking for. If we are swimming in a sea of unreported sexual claims, harassment and assault - and it appears from all of the evidence that that is what we have - we need a different focus for the FBI's background investigation.

INSKEEP: We have also heard, in today's program, from Sara Fagen. She is a Republican strategist. She is a longtime friend of Brett Kavanaugh. And she defends him in this way. Let's listen.

(SOUNDBITE OF ARCHIVED BROADCAST)

SARA FAGEN: There has become this presumption of guilt before there's been any real evidence presented - any evidence. In fact, the people - all their folks who were supposed to be able to corroborate this allegation - we're talking about the one by Dr. Ford - they've all come and said either - weren't there, didn't see it, don't know him, never been at a party with him, don't remember it.

INSKEEP: Now, I don't know that that's entirely accurate because Christine Blasey Ford did not suggest that people who had been outside the room would be able to corroborate this assault that she describes. But it is true that there don't seem to be other witnesses. There doesn't seem to be physical evidence all these years later. What should senators make of that?

JORDAN: There is a witness, which the committee has refused to subpoena...

INSKEEP: You're talking about...

JORDAN: ...Mark Judge.

INSKEEP: ...Mark Judge. She alleges that he was around.

JORDAN: She alleges that he was a witness and piled on - in his piling-on in a state of drunkenness, they all fell down. And that's when she escaped. So she has identified a witness. And it's curious that the committee has not subpoenaed him. He simply submitted a piece of paper. He has not sworn under oath. He's not made himself subject to the FBI questioning, which, if you lie to the FBI, that is a crime. So that's curious.

INSKEEP: What do you make of Kavanaugh's defenders who simply say this is too long ago, either for fairness or for finding of fact?

JORDAN: There are some parts of character that are well-built and in place by the time you're 17. And yes, young people make mistakes. And I think the country would be prepared to hear from a Supreme Court nominee, I was more like the Ferris Bueller type - I was getting into trouble; I did this and that. And that would be a fair response.

INSKEEP: Do you think if he said, you know, I drank a lot in high school and college; I feel bad about it now - do you think people would be forgiving?

JORDAN: I think many would. Honesty, authenticity - those are the hallmarks of a person with a stable character. Flat denials when there is evidence now mounting - we are up to two, possibly three people who accuse him of cruelty. That's a character trait that doesn't really go away. Cruelty, physical aggression against women - those are character traits that I - I have children. And I know by the time they were 17, their character traits were well set.

INSKEEP: Emma Coleman Jordan, thanks for coming by.

JORDAN: Thank you.

INSKEEP: She was an adviser to Anita Hill in the 1990s and is a professor at Georgetown Law School. Transcript provided by NPR, Copyright NPR.