When then-Judge Brett Kavanaugh was nominated by then-President Donald Trump for a seat on the United States Supreme Court in 2018, Christine Blasey Ford searched for some way to tell someone in power about her concerns. She was looking for some kind of mechanism that she could use to report the violent sexual incident she says had taken place between the two of them in high school. She mostly wanted to be sure someone else, someone with both power and investigative tools, would adjudicate it before he ascended to the highest court in the land, where he would serve for life. And really, you would think that in a country with a million tip lines and tens of thousands of lawyers and mandatory ethics workshops, there would have been a place to bring a set of facts she deemed material to the question of his fitness to serve for the remainder of his lifetime on the Supreme Court, where he now determines the future of women’s liberty.
But there was no place to go, and no institution to receive or adjudicate her claims. As she later explained in a podcast conversation with Anita Hill, even after she had made the determination that she needed to come forward and report what she knew, “they should have had a process in place for receiving complaints. They had none.” Indeed, it’s not even clear, five years on, who the “they” doing the investigation would have been. Was it the FBI, whose “supplemental investigation” of Ford’s claims was limited by the same White House prepared to seat Kavanaugh at all costs? Was it the United States Senate, whose “process” for testing the truth of her complaints involved hiring a sex crimes prosecutor tasked with poking holes in her story? Who was the neutral fact-finding adjudicatory body here anyway?
No one. There was no system, no process, and indeed no serious investigating entity. Ford instead found that the U.S. government had, in her words, no HR department, no phone number for a citizen to call, and no fact-finders diligently at work. The sham investigation of her claims that resulted in both the Senate hearing and the FBI’s supplemental probe had at least some indicia of being real and meaningful. There were, for instance, oaths sworn, questions asked, and, later, some interviews conducted. But the inquiries were, as we now know, Potemkin processes, without rules or resources or time or a mandate. Ford, in search of a formal process, was rewarded with a theater piece that had no conclusion.
At this year’s Sundance Film Festival, director Doug Liman, in concert with writer-producer Amy Herdy, screened a new film, Justice, to much fanfare and surprise. Those who have watched it suggest that it contains some new facts but few smoking guns, though there sure is a huge amount of new reporting that will certainly outrage and infuriate us. Debbie Ramirez, who was not called before the Judiciary Committee and whose 20 corroborating witnesses were never contacted in the supplemental probe, is interviewed. So are her witnesses. There is a claim that a third assault occurred at Yale but no identified victim.
Liman, in a press release, described the project as intended to “[pick] up where the FBI investigation into Brett M. Kavanaugh fell woefully short,” and as the film was being shown, Herdy said that the process was not finished but only just beginning: “We’re getting more tips,” she announced Friday night after the premiere. The team was preparing to restart investigating and filming anew, with the finished documentary reverting back, as the Washington Post described it, to “a work in progress.”
Instantly, the conventional wisdom went something like this: The case is open again! The FBI would be forced to spontaneously reopen its own shabby investigation; the third accuser, along with Ramirez, would be properly questioned, and the 4,500 “tips” that had gone to the FBI tip line in the week dedicated to that follow-up investigation in 2018 would finally be explored. Those tips, we now know, were largely ignored, and what little was unearthed went straight back to the White House. Yet the prevailing hope that was ginned up once the film premiered is that Liman and Herdy have created some kind of rolling national tip line, and so some institution—let’s call it the FBI, which has still failed to account for its non-work in 2018—will finally kick into gear and properly investigate what should have been rigorously examined five years earlier.
The same magical thinking holds that, after this course correction, some other magical entity will then spontaneously rise up to remove Justice Kavanaugh, through some mysterious, as-yet-to-be-named process that cannot possibly be impeachment because, as you may have noticed, we just don’t impeach justices. The reason the federal Committee on Judicial Conduct and Disability, which had been tasked with investigating the allegations against Kavanaugh in 2018, stopped its probe in 2019, after he was sworn in at the Supreme Court, was because it no longer had any jurisdiction to examine his conduct. It had no authority to investigate a sitting justice, and so this machinery also ground to a halt. Another tip line to nowhere.
All of which means that the Liman film, and whatever resultant probe it generates, actually only replicates the problem faced by Ford back in 2018, and by Anita Hill and the other Clarence Thomas accusers back in 1991: No matter how much evidence you amass, no matter how many tips you investigate, no matter how many people eventually turn up to corroborate your story, there is nobody to call. There is no entity in existence to properly evaluate the claims, and there is no instrument to test them and to bring about accountability. Liman’s rolling tip line may indeed be a welcome move to correct the factual record and to amp up a cultural conversation about judicial behavior, and that is not a trivial intervention. But what it cannot be—because we haven’t yet built such a thing—is a formal political or legal engine for actual change in the judicial appointment system, or to the judiciary.
Doug Liman’s intentions are surely good, but I cannot help but worry that the film will be retraumatizing for many of us. It will surface a lot of pain and fury. And once again, without actual rules and enforceable systems of accountability, it will be yet another reminder that the women who are abused have no power, and that once the justices are seated, their relative power is boundless.
I confess to hearing from people who are worried that with Kavanaugh as the new median swing justice, it would be better not to antagonize him with yet another round of viral accusations that cannot be tested in any formal way. Isn’t this just going to make him madder, further committed to his whole “reap the whirlwind” pledge about punishing his accusers from the bench? There is perhaps no better evidence that uncheckable lifetime appointments are the most dangerous and corrosive threat to the rule of law than “Don’t antagonize them, because they cannot be removed.” But that too feels like a dynamic that can’t change without massive formal system reform.
It’s certainly possible that Liman’s film, and the tips that continue to roll in as a result of his investigation, and the films that will come after, will start to change the culture in ways that eventually force the FBI and the federal judiciary and Congress and the legal profession to consider crafting a functioning system for the next Christine Blasey Ford or the one that follows her. I fervently hope that it does. But a tip line from the outraged to the outraged still operates in a closed loop. And until it connects to actual power and meaningful reform, it will also still roil us up to enrage us and then remind us that there is still, somehow, nothing to be done.
