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Two Judicial Nominees and the Question of Memory

by John Aquino on 09/19/18

The nomination of Supreme Court Justice nominee Brett Kavanaugh has been put in jeopardy by a claim by Christine Blasey Ford, a professor of psychology at Palo Alto University, that he sexually assaulted her at a house party when they were both in high school in the 1980's. Kavanaugh insists the incident didn't happen. Immediately, journalists and pundits made comparison to the Anita Hill hearings during now-Supreme Court Justice Clarence Thomas' nomination process in 1991. We need to learn more, of course, but it seems to me that both situations involve the issues of witnesses' memories and how memory works.


Hill alleged that Thomas sexually harassed her when she worked for him between 1981 and 1983. She cited four specific incidents. Thomas denied that what she described happened. I remember that, when the Hill hearings were taking place, I was taking evening law classes. My criminal law professor decided to devote the class to the hearings. He began, "Anita Hill says Judge Thomas did these things. He says he did not. Obviously, one of them is lying."

I immediately raised my hand and asked, "Why do you say that?"

He said, annoyed. "What you are taking about? One of them is clearly lying." 

I said, "The longer I live"--and I was the oldest in the class--"the more I realize that memory is selective, that we remember some things better than others." The only example I could think of was this. I was eight years old and heard that, not only was The Delicate Delinquent, a new Jerry Lewis movie,coming to the Loewe's Palace in downtown Washington, D.C. but Lewis was going to make a personal appearance. I begged my sister Jean to take me, and she grudgingly did. We watched the movie, saw Lewis perform, and stayed for an autographed photo. Thirty years later, after Easter dinner, the family was sitting in my Mom's living room and The Delicate Delinquent came on television. I turned to my sister and reminded her about how we had gone to see that movie when it first premiered. She watched it for a few minutes and said, "I've never seen this movie before, and I don't remember our going with you to see it."

My fellow students were wiggling in their seats listening to my Jerry Lewis story, and the professor was glaring at me. But I persisted, "The point is, that incident was evidently seared into my memory because it was very important to me at the time. And it's not surprising that my sister, who was nagged into taking her little brother to see a movie she cared nothing about, didn't remember it. Similarly, Anita Hill remembered four incidents that occurred over a three-year period that offended her deeply. To Thomas, these could have been four things that happened among many during the three years she worked for him and that were unimportant to him and that he promptly forgot. That's why it could be neither one of them is lying."

The professor nodded grimly, and I took his nod to either mean he was impressed by my reasoning or that he had consider the possibility I had outlined and either rejected it or hadn't wanted to get into it. "Does anyone want to comment?", he asked the class.

The hand of the fellow sitting next to me shot up. And for a split second I was pleased that I had sparked a discussion. "I don't have a comment," he said. "I wanted to bring something else up." "Thanks a lot," I hissed, and that was the end of it. The only reaction I received from my classmates was that they believed my sister and that we hadn't seen the movie. "But I still have the autographed photo!," I said. The Thomas hearings continued, and he was confirmed 52 to 48.

The older I get, the more I think my earlier thoughts about memory were 
correct. 

There are differences between the Thomas and Kavanaugh situations. The incidents Hill brought up happened about eight years before the hearings between two adults. What Ford is describing happened around 33 years ago between teenagers. Hill told coworkers about what happened, but Ford evidently told no one until she described it to her therapist during couples' counseling in 2012, 27 years after the event. But the Ford-Kavanaugh situation also suggests possible filters, circumstances, and other reasons as to why they remember the way they remember. 

Ford and Kavanaugh were teenagers, there was drinking at the party, she says he was drunk, perhaps she had been drinking too. She was highly offended by what he did but didn't tell anyone: perhaps she didn't want to tell her parents because there was under-aged drinking at the party or she could have been embarrassed and even traumatized. Twenty-seven years later she made it a cornerstone of her discussion with her therapist, which suggests that the memory of that night stayed with her. Kavanaugh says he doesn't remember anything like it happening, which would make sense if he was drunk or if it didn't happen or if he didn't care at the time because he was callous and simply forgot about it or if he didn't take it seriously at the time because it didn't happen in exactly the way she described. His possible intoxication or callousness have been discounted by other women he went to high school with and the man she said he was with during the alleged incident, although he admits in a book to attending a lot of drunken high school parties. High school classmates of both Ford and Kavanaugh speak highly of them. Kathleen Parker in a Washington Post column raises the possibility of a doppleganger, which I think, as a writer and former teacher of science and fantasy, is a term she misuses because it's rooted in myth and means a supernatural double of another person. I think she means it's a case of mistaken identity. My wife has noticed that in looking at high school yearbooks all the young women look different and all the young men look alike. How well did Ford know Kavanaugh?--they both went to different schools, but she could have gotten to know him. 

It's possible further investigation may bring some answers. At the moment, it looks like any governmental investigation that attempts to find corroboration could be difficult because, according to reports, Ford doesn't remember what party it was or exactly when it occurred. It could be it will come down to the memories of Ford and Kavanaugh, and all the factors and filters that go with them.

Copyright 2018 by John T. Aquino

Comments (1)

1. patrick girondi said on 11/24/18 - 10:02AM
Incredible morsels.


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