Kavanaugh, Ford hearing: In an awful process Democrats gain the advantage as Republicans walk on eggshells

The testimony of Christine Blasey Ford before the Senate Judiciary Committee hearing Thursday on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court was a plus for Democrats who want to derail the nomination, because Republicans were walking on eggshells.

The 11 Republican senators on the committee – all men – clearly did not want to appear to be bullying Ford or to look like they were being accusatory or insensitive toward a woman who claims she was a victim of sexual assault committed by Kavanaugh when the two were in high school.

Ford came across as earnest, likeable through her nervousness, and seemed to do her best to answer questions from both sides during her testimony.

But it’s a fact that there is no corroboration of her version of the sexual assault she says happened about 36 years ago (she said she is not sure of the exact year). And when you take a step back, aspects of her account do not make sense under any objective examination.

At the end of the testimony, Mitchell laughed with Ford, commiserating with her about how bad the hearing format was. All of this strengthened Ford's standing and made her a more sympathetic figure.

For example, Ford (about 15 at the time) obviously needed a ride home right after the alleged assault. But she could not or would not say who took her home or what she said to that person in the immediate aftermath of what she said was a sexual assault.

Republicans faced a two-fold problem at the hearing.

First, Rachel Mitchell, the experienced prosecutor to whom Republicans ceded their five-minute questioning rounds, treated the proceeding as if she was taking a deposition from Ford. Attorneys routinely take depositions – statements under oath – to be presented as evidence during trials or hearings.

However, Ford was not being questioned to prepare for a future trial or hearing. She was speaking at a hearing – a proceeding more like an adversarial trial.

There is a different way an experienced attorney, particularly a prosecutor, questions a witness for a deposition versus in a hearing. In the former, the objective is to gather information, so counsel asks open-ended questions and the answers can be rambling and discursive.

In a hearing, by contrast, counsel is trying to make points that will influence the factfinder (whether it’s a jury, a judge, a congressional, committee, or the like). The litigator goes into cross-examination mode, poses leading questions and quickly moves through the points that must be made.

In other words, an attorney at a trial or hearing seeks to elicit testimony to prove a point – not to act as a neutral fact-finder.

More pointed questions to Ford appropriate for a hearing would be:

Isn’t it a fact that someone had to drive you home after you were allegedly sexually assaulted? Isn’t it a fact that you can’t or won’t tell us who that was? Isn’t it a fact that you can’t or won’t tell us what you said to the first friendly person you saw after you say you were assaulted? But you know you didn’t mention Brett Kavanaugh’s name, right? And you didn’t mention it 30 years later when you spoke to a therapist, right?

Don’t get me wrong: Ford may have good answers to these questions. The point is that you don’t find that out unless you confront the witness in a very direct way, not using the roundabout deposition approach.

Perhaps Mitchell was under strict instructions to be friendly, respectful and solicitous, but her manner was not what was most important. This hearing was her opportunity to challenge Ford’s account. She did not appear to be trying to do that. She appeared to be trying to collect all the facts, as if she would get a chance to question Ford again at a hearing somewhere down the road.

Of course, this hearing was the end of the road, at least when it comes to Ford. Democrats clearly knew that and acted accordingly.

Which brings us to the second problem: The deposition approach requires a lot of time to develop information. It cannot be done effectively in five-minute increments. Yet, that is what the Judiciary Committee hearing structure demands.

Indeed, at one early point, Mitchell asked Ford a question that called for a three-part answer. As Ford began to outline the second part, Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, interrupted her because the five minutes were up, so she didn’t finish her answer.

The questioning shifted to a Democrat, who had a plan for using the five minutes effectively. It then shifted back to Mitchell, who had to waste part of her precious time trying to pick up where she’d left off.

Democrats understood they were in a hearing, not taking a deposition. Each of them was prepared to make two or three points in their five-minute rounds, and they led the witness right where they want her to go.

By the time they finished, the Democrats gave Ford the opportunity to say: she is certain Kavanaugh attacked her; she knew Kavanaugh beforehand and was not confused about the identity of her attacker; and Mark Judge – who was allegedly in the room, drunk and egging Kavanaugh on during the claimed attack – was too ashamed to look Ford in the eye when they had a chance encounter about six weeks later.

Several Democrats also shrewdly ended their round by making some attack on the process, notwithstanding that they have abused the process (by, for example, withholding Ford’s allegation, then dropping it like a bomb when the committee seemed poised to vote).

When Democrats attacked the process, Grassley and Republicans were provoked into defending the process. That meant more time not confronting Ford.

And thus it went: Democrats made their points; then the questioning went back to Republicans, whereupon we started hearing about the topography of Montgomery County, Maryland (scene of the alleged sexual assault) and how “the etiology of PTSD is multi-factorial.”

How riveting!

Democratic senators were pointed in their questions and speechifying. Republicans were ostentatiously deferential to Ford, while the hearing format guaranteed that their approach lacked continuity and focused questioning. In fact, at the end of the testimony, Mitchell laughed with Ford, commiserating with her about how bad the hearing format was. All of this strengthened Ford's standing and made her a more sympathetic figure.

As Ford exited the hearing at the end of her testimony it was clear that she had come off very well. If his objective is to shake her story in a way Republicans did not, Kavanaugh has a steep mountain to climb.