The Kavanaugh/Ford Trial: When Tribalism Defeats Truth | Opinion

During the past few days, I've been asking people I know and don't know a simple question about the biggest public trial in America: Who do you believe, Christine Blasey Ford or Brett Kavanaugh?

Liberals lined up in support of the accuser. "I believe her," I heard from her defenders. Then came the ranting and raving about Republicans.

Republicans lined up to support the accused. "I believe him," said his defenders. Then came the ranting and raving about Democrats.

Gender had little to do with things. Republican women tended to side with him, and Democrat women sided with her.

How did I know their party affiliation? The rants answered that question. But I asked, too. They happily answered.

What I learned in my short inquiry was this: the Kavanaugh hearings were more a Rorschach test than anything else, revealing more about us—the American people—than the guilt of the accuser or accused.

I could count on one hand—actually, three fingers—the number of times I heard, "I don't know who or what to believe." One said something interesting: "I believe both of them." Another said something equally interesting: "Neither of them are telling the truth."

The fact is, none of us know what happened that night back in 1982. Including, possibly, the accuser and accused. Not fully. An FBI investigation may not get us any closer to the truth, though it's imperative that one takes place.

Memory, as anyone who knows anything about it, is a tricky thing. Indeed, eyewitness testimony has been responsible for nearly 70% of the wrongful convictions overturned by the lawyers at the Innocence Project.

Which means good people testifying under oath in a real trial were certain they remembered things that weren't true. And innocent people suffered.

Moreover, there is a reason that a statute of limitations is placed on most crimes. Memory is an especially tricky thing after four decades have passed.

And tricky especially on the investigative side. It is much easier to ascertain the truth when a crime is reported quickly as opposed to decades later.

In Kavanaugh's case, Maryland officials reiterated their findings that by their own state standards, the worst charges possible would carry with them a one-year statute of limitations. One year.

And though we all know why women have in the past been hesitant to report such things—I know, my wife was just such a woman—it doesn't change the fact that time is an enemy of truth in these matters.

That being said, it was fascinating to hear defenders of the accused ignore the possibility that the judge may have partied harder than he'd care to admit back in high school and college. It's not outside the realm of probability that on an occasion or two, he had enough to drink to impair his memory. That doesn't make him guilty of sexual assault. It makes him guilty of being an American teenager.

It was equally interesting to hear from those who sided with the accused. Several focused on Christine Blasey Ford's testimony regarding her claim that she didn't drink much at the party.

"She didn't remember how she got to a party with older boys 15 miles from her home when she was 15 years old, but she remembered having only one beer?" one woman told me with dripping sarcasm.

Even if she had ten beers, it doesn't mean something bad didn't happen to her. She too was an American teenager, going through what American teenagers go through.

Activists and advocates for survivors of sexual abuse gather in the Federal Building Plaza to protest the confirmation of Supreme Court nominee Brett Kavanaugh on September 28, 2018 in Chicago, Illinois. Scott Olson/Getty Images

Here are some possible scenarios that most people would have considered if this was not such a fierce political battle. If this was a case that involved two ordinary Americans, one of whom was not about to work at the highest court in the land:

  1. One of them is lying and one is not, and we probably won't ever know the answer.
  2. Neither of them is lying, and they simply don't and can't remember fully what happened.
  3. Both of them are lying, and doing so for reasons they may or may not understand fully.

Here are a few more things to consider as we all talk amongst friends, family and neighbors this week.

Some core American principles have been trampled upon over the past two weeks, and left entirely out of the national debate.

First, we protect the accused in this country, not the accuser. The Bill of Rights has three amendments dedicated to protecting the accused. The most important protection, by far, is the confrontation clause found in the Sixth Amendment.

It's there so the accused can test and rebut evidence against them. It's a right not because we don't care about the accuser, but because it's the accused who may lose their life, reputation, and so much more. On a mere accusation, as credible and serious as it might be.

The legal concept is as old as civilization. From ancient Rome, through British Common Law, it's been the bulwark of basic fairness. Because it holds the sanctity of the pursuit of truth above all else. Especially mob rule. And political trials.

The accuser, by the way, has no right to confront the accused. Indeed, the founders created an additional right—the self-incrimination clause of the Fifth Amendment—that prohibits a witness from being forced to testify against himself.

Moreover, juries are instructed to not impute guilt when a defendant chooses not to take the stand.

And what about the presumption of innocence? It was designed for all of us, not just the folks we like.

Last week, these basic rights—these core notions of what it means to be an American—were turned upside down. And turned upside down not just by the U.S. Senate and the media, but by us. The American people.

What I experienced asking ordinary Americans basic questions about this case made me worry about my country.

Is this the America I've known, where we fight and disagree, but rally around our civil liberties and most fundamental rights? Rights that protect all of us from false accusations? And separate legitimate accusations from illegitimate ones?

Or have we descended into a tribal mindset that suspends all sense of fair play? One where guilt and innocence are determined by our allegiance to our tribe, and nothing else?

These are urgent questions each of us should grapple with in the coming days.

Because there is a lot more at stake than this one case.

Lee Habeeb is a Vice President of Content at Salem Media Group, and is host of Our American Stories, a nationally syndicated radio show and podcast.

The views expressed in this article are the author's own.