What Black People Should Take Away From the Kavanaugh Hearing: A Lack of Due Process Will Always Hurt Us the Most

udge Brett Kavanaugh is sworn in before testifying to the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC.
udge Brett Kavanaugh is sworn in before testifying to the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC.
Photo: Win McNamee (Getty Images)

Jennifer Thompson-Cannino was the perfect witness. She was credible. She had taken the time during a brutal, agonizing attack to study her rapist’s face, to make sure she would later be able to bring him to justice.


She remained strong through an agonizing rape kit—twice, because the first attempt was botched; through a penicillin shot; as she took the morning-after pill; as she recounted the attack again and again, in excruciating detail; and as she went back to the apartment where she had just been raped to find evidence.

And yet she still sent an innocent black man, Ronald Cotton, to prison for nearly a decade because she wrongly picked him out of a police lineup then testified against him during multiple trials—a false identification largely the result of bad police tactics.

Christine Blasey Ford was incredibly compelling and credible during her hours-long testimony during today’s Senate Judiciary Committee hearing. There is no reason to believe she is lying or is motivated by partisan politics. There is a lot of reason to believe she is telling the truth and should be believed, and maybe that’s how today’s events will—and should—end.

But we shouldn’t let ourselves be blinded by an extremely emotional and important day in our nation’s history—which can help determine the shape of the Supreme Court for a generation—to broader realities, especially that racial disparities within the criminal justice system hurt us most. Some of those injustices are built upon bad policing, bad investigative techniques and sometimes implicit and explicit bias, even by judges, jurors, prosecutors and police officers who are convinced they are doing everything right.

Even credible witnesses sometimes get it wrong. False IDs have played a significant role in about 70 percent of the wrongful convictions that we know about. That’s what happened when Thompson-Cannino wrongly named Cotton for a rape he did not commit. She didn’t do it to hurt him, she simply wanted justice for having endured a brutal rape.

The bad ID happened because of how detectives presented Cotton’s photo in lineups; they also convinced other women, each of whom had been raped by someone other than Cotton, to falsely ID Cotton as well. Still, Thompson-Cannino thought she was absolutely truthful and the justice system deemed that bad ID credible for many years—until Cotton finally got the right to have his DNA tested against evidence from the crime scene and was declared innocent.


We know Blasey Ford is credible. But we won’t know with certainty that what she believes happened absolutely did because Senate Republicans and the White House refused to authorize a full, fair and independent investigation that could have gotten us as close to the truth as possible. This sham of a process wasn’t designed to uncover truth, just to make sure another conservative justice makes it onto the Supreme Court.

The politics may be great for Democrats and those who hold out hope that Kavanaugh can be stopped and Democrats can retake the Senate in November. But we don’t have the luxury of only thinking about the politics, because no matter what happens here, we still have to contend with a criminal justice system that has been detrimental to black people since its creation.


That’s why we should not stop demanding criminal justice reform that will make it less likely that men or women will be wrongly convicted because of false IDs. True, due process is not possible with such a high percentage of mistakes by eyewitnesses—mistakes often compounded, or even created, by police officers who are either not careful or have succumbed to tunnel vision once they have identified a suspect.

We should not forget these realities even as we go through this gut-wrenching political process that has forced Blasey Ford to relive one of the worst days of her life, just as we should not forget that polygraphs are not built upon sound science, another issue that has also bubbled up during these proceedings. Polygraphs are not reliable lie detectors but have been used to convict black men and women nonetheless, even if they aren’t legally admissible in court.


Due process concerns should not have been ignored today, or ever. That the Senate hearing was short-circuited by the Republicans hurt Blasey Ford. It hurt Kavanaugh. It hurts the credibility of the Supreme Court itself. We have to find a way to make sure it stops hurting so many black men and women.

Thompson-Cannino and Cotton took an ugly event that could have forever divided them and instead made it unite them to create a more just system. They’ve written a book and often travel together and speak about injustices.


If we are really serious about making sure women are heard and justice is done, we’ll use this Kavanaugh-Blasey Ford hearing as more than fodder for another political fight. We’ll use it to convince more people that the need for criminal justice reform is more urgent now than it’s ever been.

Bailey is a Harvard University Nieman Fellow and author of the book, "My Brother Moochie: Reclaiming Dignity in the Face of Crime, Poverty and Racism in the American South." He's a husband and father.


Bronx Resident Benjamin White

To the best of my knowledge, by all accounts Ford knew who Kavanaugh was prior to her assault. She was not drunk or drugged, so her memory on that night was clear.  She didn’t have to piece together a description of an unknown attacker like Thompson-Cannino did with the aid of shoddy police work to come to the wrong conclusion.  She's known from the moment the attack occurred that Brett Kavanaugh tried to rape her. 

That’s a big distinction and that’s why it’s very troubling to use Kavanaugh-Ford as an example for why we need to reexamine the reliability of eyewitness testimony. We most certainly do need to ensure a victim's is questioned the right way to avoid introducing false memories, but your article would seem to make the case that lacking physical evidence, we can never be sure that Brett Kavanaugh was her attacker. I certainly hope that was not the intention.