Jurisprudence

The Kavanaugh Hearings Have Demonstrated How Desperately America Needs Restorative Justice

We’ve retreated too far into our two sides now, but at one point, there was another way.

Brett Kavanaugh, Christine Blasey Ford.
Brett Kavanaugh, Christine Blasey Ford.
Photo illustration by Slate. Photos by Win McNamee/Getty Images and Saul Loeb-Pool/Getty Images.

On Friday, Arizona Republican Sen. Jeff Flake was confronted in an elevator by Ana Maria Archila and Maria Gallagher. What happened next went viral, in part because it seems to have been a contributing factor to Flake insisting on an FBI investigation, but also because it was an emotional and compelling interaction. The women, who identify as sexual assault survivors, held the door and held him to account. One thing that stuck out specifically to me was when Archila said, “The way that justice works is that you recognize hurt, you take responsibility for it, and then you begin to repair it.” Referring to Christine Blasey Ford and Kavanaugh’s other accusers, she told Flake that he was wrong to vote for a man who “is unwilling to take responsibility for his own actions, unwilling to hold the harm he has done to one woman, actually three women, and repair it.”

This part of the encounter has received little coverage, perhaps because the media has not known what to make of it. Archila was speaking in terms that are likely foreign to many: She was speaking the language of restorative justice. Our Anglo-American legal system is about affixing guilt and meting out punishment. By contrast, restorative justice is about addressing harm in a way that heals victims, offenders, and communities that have been torn apart. It is about reparation. Its face-to-face open dialogue process focuses on personal accountability; the victim and offender share deeply personal experiences with the least likely person in the world—each other. They decide together how they will move forward. It is a reckoning of a different sort than the cage match Americans are accustomed to.

As I watched the Kavanaugh confirmation hearings I found myself thinking, what if? What if, instead of using our clearly broken and highly politicized process to assess these claims, the parties had been offered a restorative justice process? Both Ford and Kavanaugh spoke openly—and in Kavanaugh’s case, ragefully—of the personal hell they had experienced and the tremendous pain inflicted upon their families. But the hearing was not, as advertised, about “getting to the truth.” Indeed, the politicized process wasn’t even a reasonable example of how America’s justice system is supposed to work. Some members of the judiciary committee used Ford and Kavanaugh’s anguish to score political points and make headlines for themselves. Rather than providing a resolution, it sowed outrage and confusion. In the process, the harm described by Ford and Kavanaugh spread to millions of people who watched the hearings and found themselves in tears as they listened to both sides and relived their own traumas.

Imagine how differently it might have played out if Ford and Kavanaugh had met in a private room with a trained facilitator instead of making separate appearances under the klieg lights of a nationally televised hearing that many saw as a kangaroo court. In a restorative justice process, Ford could have asked Kavanaugh questions; she could have described the particulars of her suffering, how she had come to this point in her life, and what she needed to move forward.

Kavanaugh could have asked his own questions, and at the same time, he could have faced up to what many perceive to be established facts—his pattern of drunk, boorish behavior as a teenager. Digging deeper, he might have finally been able to move past his flat, repetitive denials and, as Archila suggested, “hold the harm he has done.” In this process, they—and we—could have moved away from a world of sides: innocent and guilty, winner and loser. Survivors of sexual assault might have finally received some real justice, and seen some real recognition and grappling. Those who perpetrate sexual misconduct might have realized there was a way to be held accountable without being sent into permanent exile.

There has been a heated debate about whether Kavanaugh should be punished for what he may or may not have done as a teenager. But I agree with Slate’s Mark Joseph Stern that the real question, in judging Kavanaugh’s fitness and character for a seat on the bench of the Supreme Court, is whether he is willing to come to grips with his past conduct and show remorse and insight. A person who is willing to reflect and change is qualitatively different than someone who is not. A restorative justice process would have offered Kavanaugh that chance to show us—and Ford—whether he was up to doing that difficult, humbling work.

Of course, this will never happen. In America, we adhere firmly to our adversarial model and to our vision of “winners and losers,” no matter how ill-suited to the dispute. It is the language of our playgrounds, our sports teams, and our politics. It is the language favored by our current president.

So we will lurch forward, continuing to flail and inflicting more damage. With the FBI’s investigation in its infancy, the news cycle is already consumed by finger-pointing, accusations, and counterpunches as politicians and pundits fight over procedures and parameters. It is hard to envision an outcome that will be anything other than unsatisfying and infuriating to many if not most of us. Kavanaugh may ascend to the nation’s highest court or see his nomination derailed and defeated. Either way, he is unlikely to engage in the crucial self-examination that comes with true accountability. Ford will go back to her life in California without a dialogue with the one person she needed most to understand her pain, and so in a fundamental sense, she will not have been afforded the opportunity to have been heard or healed. Whatever the outcome, there will be no real reckoning for them or the rest of us. And we will all be the worse for it.