Hearing or Trial or Brawl

If you’re watching the news these days, you’d find it hard to miss reports of the “confirmation hearing” of Brett Kavanaugh for Supreme Court Justice. I watched “Dr.” Christine Blasey Ford “testify,” including “responding” to questions from the “prosecutor” hired by the Republicans. And I watched “Judge” Brett Kavanaugh “defend himself” by making “statements” and “attacking” Democrats.
 
As the quotation marks suggest, I’ve been trying to make sense of Thursday’s events through the strange mix of words and genres used by reporters and the Senate panel itself. Many very smart people have written about the events in terms of the “he said/she said” nature of sexual assault trials, and others have compared this hearing to the “interrogation” of Anita Hill in the Clarence Thomas confirmation hearing.
 
Is it a hearing or a trial? Or something else?
 
It’s a hearing, according to the Senate Judiciary Committee. 
 
If we take the word literally, the Senate committee should have spent a lot of time listening, asking to hear what people have to say. News accounts reported that only 5 Senators were in the room to hear the testimony offered from a survivor of the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The others didn’t hear Aalayah Eastmond. 
 
Perhaps that lack of listening supports its being called a “confirmation” hearing by many accounts. Notice the presumption of confirmation in that label. Perhaps a man hears what he wants to hear to confirm and disregards the rest (apologies to Simon and Garfunkel).
 
Of course, words carry many meanings that are not literal, including the word “hearing.” As a genre, a hearing carries with it precedents and prior knowledge (hence the many comparisons to past confirmation hearings of Supreme Court nominees), procedures and conventions (hence the formality of people testifying in front of a panel, the polite references to “Dr. Ford” and “Judge Kavanaugh”), and ideologies (hence, unfortunately, the politicizing into Republicans versus Democrats, the turn-taking by party, questions becoming political statement-making, and each person testifying being treated differently by the different parties).
 
It’s a trial, according to the prosecutor 
 
Most obviously, what made it seem more of a trial is that the Senate Republicans on the committee hired a “prosecutor” to do their questioning of Dr. Ford. Someone was on trial and needed to be prosecuted. Rachel Mitchell has been called a “sex crimes prosecutor” and a “sexual assault prosecutor.” Her official title was “chief of the Special Victims Division and deputy county attorney,” according to Fox News, but she is currently on leave. 
 
She is always called a “prosecutor.” Her job has been to prosecute those who are accused of committing sexual assaults of various kinds. In this case, that would be Brett Kavanaugh. Instead, in this case, she was hired to question Christine Blasey Ford. If you listened to her part of the hearing, you could tell that she was hired to “prosecute” Ford, the alleged victim of the assault. Surely not Mitchell’s usual role. In fact, when it came time to question Kavanaugh, the accused, the Republicans took back their questioning role and cut out the prosecutor.
 
Who was the target of the “prosecutor”? Who was being prosecuted? Words matter.
 
It was also a trial in how Ford responded to the prosecutor’s questions. She answered all questions directly and succinctly, with relatively little elaboration and some fumbling efforts to check her records for accuracy before answering. Just the facts, ma’am (apologies to Sgt. Joe Friday and Dragnet).
 
Or maybe it’s a brawl, according to Kavanaugh’s attack mode
 
Not so for Kavanaugh’s testimony. No semblance of a trial, or even a hearing, with orderly questioning and deliberate and careful responses to questions. He made statements. He answered some questions and not others. He asked the questioners questions.
 
Many have pointed out the difference in how Kavanaugh and Ford responded to questions.  They often attribute it to gender differences, claiming for Ford a timidity and desire to please while for Kavanaugh a brashness and aggressiveness not permitted to many women. 
 
I would attribute it to genre differences as well. What genre did the two think they were acting within?
 
Unlike Ford, Kavanaugh chose to treat the event not as a trial, or even a hearing. It was not about the facts and only the facts, sir, as it seemed to be for Ford. Instead, he made it about a defense of his name (as most put it), and a fight, a battle. No careful answering of questions, checking his records. Instead, he spoke angrily, denied the accusation of ever assaulting anyone, and attacked his Democratic questioners.
 
Or maybe it’s all of the above
 
Kavanaugh and Ford were not interpreting the situation in the same way. They were acting in different genres, based on different assumptions and conventions.
 
And neither of them was acting as if this were a job interview. Nor was the prosecutor. Nor were the Senators, who either accused or stroked the two people testifying.
 
Although Senator Graham was speaking on Kavanaugh’s behalf at the time, his description may be the most accurate for both Ford and Kavenaugh: "This is hell."
 
In the end, I don’t think it came down to “he said/she said” because that assumes he and she are reporting their versions of the same events. I found Ford’s testimony credible, heartbreaking, enraging, and unnerving. I believe her.
 
Kavanaugh wasn’t asking me to believe his account of the same events. He wasn’t trying to convince me with the facts. He was asking me to take his side and defend him, not against Ford’s accusations but from the Democrats’ “sabotage” of his nomination. He wasn’t trying to offer evidence because he wasn’t testifying at a trial or hearing. He was in a fight.  I still can’t tease out all the genres he was drawing on—or Ford, for that matter. 
 
And I can’t discover all the genres the whole scenario was enacting—farce, circus, and sham have all been suggested. 
 
How can you follow the rules when the rules keep changing?
 
I’m an optimist and believer in transparency, so I look for what might have rescued this fiasco. Greater clarity from the Senate Judiciary Committee about exactly what genre this “hearing” was going to be and what genre of “testimony” they wanted and what genre of “question” would be permitted. The rules change when the genre changes.
 
Such explicitness about a genre, such transparency in the rules, can help give access to a situation’s newcomers as well as pros. I'm not naive enough to think that that was the goal for many on the Senate committee. Many of the participants in this situation were insiders, had been here before, knew the unspoken rules and what strategies would be allowed or even effective. One person was a first-timer, a newcomer, a novice in this genre game.
 
As Ford said quietly to her lawyer in response to a questioner and the traps hidden in the question, “I don’t understand.”
 
I don’t understand either. But I know that the conflicting genres made this game one with even higher stakes than before—people’s lives, and the reason-based, apolitical justice system on which our democracy depends.

skeeze, pixabay CC0 Creative Commons