Song of fire and ice

In the season of tete a’ tete, Brett and Christine had a tit for tat. The Kavanaugh audition to be President Donald Trump’s 2nd Supreme Court appointee has become the latest classroom (or battleground) for gender role upheaval, the freshest confirmation of the rottenness of party politics and the newest moment of truth in the march for equal rights.

The televised hearing of the Senate Judiciary Committee was make or break for President Trump’s second Supreme Court appointee, the controversial Federal Appeals Court Judge Brett Kavanaugh. Getting him on the Court is critical for the Republican agenda. His will be the 6th vote that shores up a conservative majority expected to dismantle long standing liberal doctrines on abortion, same sex marriage, affirmative action, gun control. He is 53, with the prospect of serving for life. Think Ma. Lourdes P.A. Sereno who was 50 when first appointed to the court. Marvic Leonen was 49.

After days of media frenzy over Professor Christine Blasey Ford, then his shadow accuser, her face and voice were made public – in a devastatingly visceral manner. The proceedings did provide a welcome civic lesson on checks and balances in the appointment process. But that was clearly incidental. What the world could not ignore was the incredible display of courage and duty they were witnessing. No way that this was duplicity. It was a watershed moment for women who have been victimized. The dignified Prof. Ford moved many to find their lost voices.

With the outcome of the midterm elections increasingly in doubt, the option of just withdrawing the nomination has become a non starter for the President’s party. We are not spared this rigmarole – even at arguably the height of the #MeToo movement in the US – because it may be the only chance for President Trump. If Democrats take back the House and Senate this November, there is no way he gets to appoint a replacement for this seat. It stays vacant in the same way the Republicans stonewalled on Democratic President Barack Obama’s appointment of Merrick Garland. He can also concede, tail between legs, to the Democratic majority on a mutually acceptable candidate. 

These hearings, just like the confirmation hearings before our own Commission on Appointments, are designed to ensure that the executive who holds the power to appoint does so with responsibility and does not decide to just appoint anyone. They can be benign or they can be savage. Remember then Congressman Harry Roque opposing Health Secretary Paulyn Ubial and even Environment Secretary Regina Lopez against Congressman Ronnie Zamora?  

By no means are the hearings conclusive of the truth or falsity of testimony, or the guilt or innocence of the nominee in what is clearly criminal behavior. With the Republicans holding a majority of 11 to 10 in committee, the affirmative vote to recommend his confirmation at their level may even be a foregone conclusion.

What it can’t conceal is the credibility of the accuser. And the courage of this highly educated woman who has become another icon in the continuing uphill struggle to equalize the battle of the sexes. She gave powerful testimony – convincing, consistent and sincere. This has gotten so much bigger than merely the appointment of a Justice.

Judge Cavanaugh was fiery in his equally compelling personal statement. He adamantly denied the truth of the allegations and portrayed the indignation and suffering of a wrongly defamed man. Both came off as authentic speakers of the truth or, as commentators would point out, “their own truths.” It was hard, though, not to be affected by the straightforward, unpracticed way that Prof. Ford narrated her traumatic experience. It could not have been easy for her to come forward. She ended up in the hot seat before a world audience. She, nonetheless, sat on it and wore her bravest face. 

In cases of sexual abuse, we in the Philippines are peculiar for having a special rule. As these situations are almost always between the accuser and accused, classic he said, she said scenario, the credibility of the testimony becomes key. Our Supreme Court, in 1960, formulated this presumption in cases where an accused could be convicted solely on the testimony of the victim. Known as the Maria Clara or Women’s Honor doctrine, it recognizes that “no young Filipina of decent repute would publicly admit that she has been sexually abused, unless that is the truth, for it is her natural instinct to protect her honor.”

There was an outcry early this year when then Associate Justice Samuel Martires, writing for the Court’s 3rd division, made a categorical statement that this doctrine should now be laid to rest. Then spokesman Teddy Te had to rush a clarification that only the Court sitting en banc had that power. The 3rd division decision was not enough. So Maria Clara is alive and well and lives on in our Jurisprudence.

The US is long past the age for any such stereotyping. Prof. Ford had no such presumption in her favor. But so far as we have seen, she really didn’t need it. As for Kavanaugh, the credibility of her allegations will haunt him. We grieve for the man if, indeed, he is innocent. But, the way his appointment process has been politicized, he had been reaping negative ratings even before the lady surfaced.

Should he get the seat, it won’t be because he earned it or that the Senate fairly performed its constitutional mandate to advice and consent. It will only be because the Republicans had the numbers and decided that they couldn’t pass on the chance to win back the Supreme Court for future generations. For this they are prepared to gamble their own majority and even ok with their own champion getting mortally wounded in the process.