A quarter-century ago, Senate Democrats were seized with panic in the face of sexual harassment charges, and acted quickly to get rid of them. The charges weren’t against them, but against Clarence Thomas, who had been nominated to the Supreme Court by President George H.W. Bush, and who in turn accused his Democratic opponents of conducting “a high-tech lynching.” So eager were they to get rid of this hot potato that Sen. Joe Biden, then the Judiciary Committee chair, rushed through the process, squelching several witnesses who were prepared to testify in support of Anita Hill's allegations against Thomas. Essentially, Biden wrapped up the whole process before anyone could get an inkling how well-founded the charges against Thomas were.
As Bryce Covert noted last year, from Thomas' court seat, “he has made things more difficult for women who bring workplace sexual harassment claims,” as with the vote in the 2013 Vance v. Ball State University case in 2013, “which redefined the word ‘supervisor’ to drastically weaken it. ... Within a year, 43 sexual harassment cases were dismissed because of the stricter requirements.” So Senate Democrats not only empowered a sexual harasser, they empowered him to empower other sexual harassers as well.
Today the scenario is evidently quite different, but the bottom-line outcome is more similar than most in the Beltway would comfortably admit: A Democratic rush to judgment, casting due process to the wind, in order to strike a virtue-signaling pose that almost surely will look increasingly dark in years to come.
The sudden surge of Democratic senators calling for Al Franken to resign last Wednesday (including former prosecutors like Kamala Harris of California, Amy Klobuchar of Minnesota and Claire McCaskill of Missouri) was widely welcomed on social media, but there were a few telling exceptions. "Democrats are so stupid," former Reagan adviser Bruce Bartlett tweeted. "The obvious thing to say about the Al Franken business is that he will resign the day Trump resigns."
When Republican Sen. Lisa Murkowski of Alaska added her voice to the calls, Obama speechwriter Jon Favreau asked, while re-tweeting her, "Has a single elected Republican even tried to offer a reason why Franken should resign and Trump shouldn’t?" Taking things ever further, Hot Air’s Allahpundit tweeted, “Franken should announce he’s switching parties. He’ll be fine then,” which MSNBC’s Chris Hayes then called “the ultimate troll move.”
These weren’t the most popular opinions, even as MSNBC’s bizarre (if temporary) firing of Sam Seder sent a warning sign of how badly knee-jerk reactions could lead institutions astray, leading to a flood of outraged responses. “The entire culture and our politics are now dominated by people who have weaponized bad faith and shamelessness,” Hayes tweeted, summing up.
Within 24 hours, Seder was rehired, and Franken had announced his resignation, seemingly rendering all this moot. But given how badly the Democratic Party failed in 2016, and how little institutional reflection there has been (except from progressive activists), what just happened should not be ignored or forgotten. For one thing, the Senate stampede shows just how deeply Senate Democrats have internalized Republican or conservative double standards, while failing to develop their own positive analysis, goals and programs. By abandoning the investigative path Franken himself agreed to, and demanding his ouster, they were "virtue-signaling" — which is the GOP's brand — rather than thinking through and laying out a practical problem-solving approach, which is (or at least was, in theory) the Democratic brand.
Norm Ornstein, dean of Congress-watchers, had a clear-eyed view of what was missing. In response to tweets about coming revelations “exposing 20-30 congressional members 4 sexual harassment” and being “glad for the Franken Standard,” Ornstein tweeted:
Sen. Kirsten Gillibrand of New York, an apparent contender for the 2020 Democratic presidential nomination, seemingly recognized something of this problem when she explained her call for Franken to resign. “Senator Franken is entitled to the Senate ethics investigation process, but I don’t think Congress is equipped, I don’t think they have the tools to do the kind of accountability the American people are searching for.”
Of course Gillibrand is right. So why not use this opportunity to change the Senate process and create those tools right now? The very tools whose absence Ornstein decried? Unlike Donald Trump and Roy Moore, Al Franken does have a history of supporting and advancing women’s rights. His response at that point had already sharply distinguished him from Trump and Moore. If he were to demand that the process be reformed in advance of his investigation, he would ensure that, whatever the outcome, he had done something meaningful and significant to atone for his own wrongdoing.
As the accused, asking for the system to be reformed in favor of his accusers, Franken would have had much more persuasive power to get those changes made swiftly than the minority Democrats as a whole do without him. Wouldn’t that have been much more in keeping with what the Democratic Party ought to be about? Restorative justice rather than punitive justice? So why didn’t Gillibrand ask him to do that? Why didn’t that even seem to enter anyone’s mind?
I don’t mean to single Gillibrand out pejoratively. This is a much broader, institutional party failure. But I would fault her for something else she said:
When we need to start talking about the differences between sexual assault and sexual harassment and unwanted groping, you're having the wrong conversation. You need to draw a line in the sand and say none of it is OK, none of it is acceptable.
What’s wrong with that is simple: It’s either/or thinking, when what’s needed is both/and. Yes, it’s all unacceptable, and there are important differences as well. We surely understand these significant legal nuances when the subject is assault vs. murder: Almost 30 years of the "Law and Order" franchise has taught us that much, at least.
Conservative never-Trumper Charlie Sykes responded this way:
This assumption is ludicrously naïve. On the one hand, Bill Clinton is still available for all the whataboutism Republicans might need — while nobody seems to bring up Clarence Thomas all that much. On the other hand, the National Review already has the other flank covered, in an article headlined “It Took Way Too Long for Senate Democrats to Demand Franken’s Resignation”:
It is utterly absurd to suggest that the decision to call for Franken’s resignation was anything more than pure political calculus on the part of Senate Democrats. They relinquished their chance to virtue signal when they all but ignored the first six of Franken’s accusers.
Of course, Senate Democrats did not all but ignore the first six accusers. They took them very seriously — as did Franken. But their belated over-the-top response after the seventh accuser gave this lie all the appearance of credibility Republicans might need. This underscores a fundamental point: Making due process an integral part of the principles you uphold only makes you stronger, politically as well as morally and intellectually. The fact that the existing process is abominable, a travesty of genuine due process, only makes the issue more important for progressives and Democrats to hold onto, advance and set right. Instead, they’ve seemingly tossed it out the window.
Salon's Sophia Tesfaye encapsulated the argument why doing the right thing morally makes sense politically as well:
According to a recently released Harvard Kennedy School Institute of Politics poll, 65 percent of likely voters between the ages of 18 and 29 said they would rather see Democrats control Congress. That’s why Franken had to go.
Democrats who are reluctant to clean house before Republicans do risk losing a vital avenue to young voters. The attitude that "Well, if the GOP gets to play dirty on harassment then so do we" is likely to turn off more millennial voters, who are already often inclined to believe there's not much of a real difference between the two parties.
This assumes a relatively superficial foundation for gaining millennial support. The attitude Democrats should project is “We care deeply enough to reform the whole system, so that it actually works to protect the most vulnerable — transparently, so that you can see for yourselves and hold us accountable.”
One of the best things about upholding the value of due process is that it affords proper space for multiple different valid concerns in an already-existing framework, starting with the victims and their right to be heard and taken seriously. But it also has space for making precisely the sorts of distinctions Gillibrand seemingly deplored — which happens when prosecutors bring charges, as well as when juries deliberate and decide verdicts. Even after one is found guilty, there is space, in the sentencing phase, for precisely the sort of character and conduct arguments that tend to obscure things in the political realm. The enormous differences between Franken’s record supporting women and Donald Trump’s record demeaning them should not be ignored, any more than it should be used to shield Franken from scrutiny. A genuine due process framework allows for both.
It also protects against conservatives gaming the system, the way that misogynistic right-wing agitator Mike Cernovich gamed MSNBC into firing Sam Seder. The first rule of conservative fight club is always to accuse others of what you do yourself, so it’s only a matter of time before conservatives begin to launch false accusations against Democratic men. Not because women make up false accusations all the time (they don’t), but because conservatives claim they do, and would love to buttress that false claim with something approaching real evidence.
Absent the due process frame, all these issues tend to get tossed together in no particular order, primarily motivated by political agendas. Not only does that make it difficult to achieve genuine justice in any one case, it becomes virtually impossible to make progress in clarifying how various claims and concerns should be dealt with in the future. It’s an invitation to "Groundhog Day," without the most essential aspect, which is learning and change. Adopt the essential frame of due process, and you’re in a position to deal with everything — not just within the existing framework, but also, stepping back, to question how well the framework as whole is functioning.
This is not just about the Senate or Al Franken, of course. It is being driven from the bottom up by the #MeToo movement, and what that movement ultimately wants is still evolving. But here’s the crucial point: Had the Democratic senators chosen to focus on revising the process as an immediate demand, they could have profoundly engaged with the movement at a crucial point in its growth and evolution. With or without the cooperation of Republicans, they could hold field hearings across the country — in addition to social media engagement — and help stimulate similar processes of fixing broken systems that exist almost everywhere when it comes to sexual harassment. A truly incredible organizing moment has been missed, virtually without anyone even noticing it existed in the first place.
That may not seem like the deepest tragedy at the moment. But looking back a quarter-century at how the Senate’s rush to non-judgment with Clarence Thomas turned out, the question of what might have been — of what questions, voices and concerns went unheard — will surely only loom larger over time.