Spoiler alert: Regardless of what happens at Thursday’s hearing, Brett Kavanaugh is almost certainly going to be confirmed as a Supreme Court justice before the midterms.
This has been clear ever since Christine Blasey Ford’s allegations of sexual assault against the nominee first appeared in the press two weeks ago. No Republican senator has claimed that his vote would change if the accusations were somehow proven true. President Trump himself has argued, in the same breath, that the American people should hear from Ford in order to remove any «doubt» and that the whole thing is an obvious partisan smear campaign.
This is nonsense. If President Trump and Republicans on the Senate Judiciary Committee cared about eliminating doubts, they would insist that Mark Judge be subpoenaed away from his beach house and Superman comics to testify. If, as they say, there is very little evidence to go on, it makes no sense to forego the assistance of Judge and P.J. Smyth, the only supposed witnesses to the alleged events of 35 years ago. Ford’s testimony has been demanded because it was assumed that she would be unwilling to deliver it. Senate Republicans hoped to call her bluff, as it were, but it is Ford who has called theirs.
Here it is worth reviewing the range of conservative responses to the accusations against Kavanaugh.
The first and most common has been to insist that he must be innocent, which is not at all the same thing as saying there are not compelling reasons to believe he is guilty. This was premature and basically indefensible.
The next was to concede the possibility that Kavanaugh might very well have done what Ford alleged and ask «So what?» Very few were willing to go as far, at least publicly, as Lance Morrow in the Wall Street Journal («The sin, if there was one, was not one of those that Catholic theology calls peccata clamantia — sins that cry to heaven for vengeance») or Dennis Praeger in National Review («Every one of us has a moral bank account. Our good deeds are deposits, and our bad deeds are withdrawals. We therefore assess a person the same way we assess our bank account»). With friends like those, Kavanaugh needs no enemies.
Which helps, I think, to explain yet another line of argument pioneered by Ed Whalen of the Ethics and Public Policy Center. Whalen did no one, least of all Judge Kavanaugh and the supposedly sacrosanct principle of the presumption of innocence, any favors by suggesting that something like what Ford alleged might have happened, only she was mistaken about the identify of her assailant, who, he suggested, could have been a private citizen whose name and photograph he volunteered on Twitter.
The reason that all of these mutually exclusive arguments have been entertained by many of the same people in the same forums is that for many of them there is no underlying principle here save that of expedience and stubbornness. This not about the Supreme Court or about theories of jurisprudence. It is certainly not about opposition to abortion. If it were simply a matter of wanting to confirm someone who could redress the wrongs of Roe v. Wade, the sole reason that millions of Americans vote for the GOP, Kavanaugh could have been withdrawn weeks ago and replaced with Trump’s apparent runner-up, Judge Amy Coney Barrett.
What this is about for elite Republicans and their allies at think tanks is closing ranks, getting their man because he is their man, and nothing else. It reminds me more than anything else of the O.J. Simpson trial, not because Kavanaugh has been accused of a crime as serious as murder or because there is anything like the amount of evidence that appeared before the jury in that case, but in the sense that declaring what one thinks about the allegations functions as a cultural signifier. #ConfirmKavanaugh is part of the white GOP fratboy equivalent of identity politics.
For other conservatives, though, including many who would have preferred to see Barrett nominated, support for Kavanaugh is about defending a very serious principle. If an unverifiable accusation from more than three decades ago is sufficient to end Kavanaugh’s judicial career, what will prevent Democrats from manufacturing such accusations any time a Republican president nominates someone to the high court? This seems to me ludicrous for a variety of reasons, not least of which is the fact that Neil Gorsuch was confirmed last year without any such accusations emerging. More important, anyone depraved enough to slander an innocent man in this manner is not going to be shamed away from trying it again by your brave example in an edge case.
The other concern raised with me most often by right-wing interlocutors has to do with fairness. If Kavanaugh is innocent, why should he be denied this high privilege, even if there are others about whose characters no doubts have been raised and who are better qualified? If he is guilty of what Ford alleges, on the other hand, well, so are millions of others whose sins have cost and will cost them nothing. Why him, and why now?
What these conservatives fail to see is that, whatever they think of the motivations of Dianne Feinstein and the Democrats, for others who are inclined to believe Ford this is about a principle as well. It is just as inchoate as theirs but it is also grounded in a desire for justice, indeed for a kind of universal justice that goes far beyond their obsession with the policing of double standards.
Both sides believe there is something wrong with the sexual status quo in this country. But one, despite spilling hundreds of thousands of words of ink on the perils of «hook-up culture,» would like to suspend judgment in this and similar cases because it fears that ad-hoc justice will be meted out selectively or in bad faith. The other would like to create new standards or to revive old ones for assessing the morality of men’s sexual behavior and the admissibility into polite society of those who have fallen afoul of them. It is difficult for me to understand why conservatives are automatically inclined to throw in their lot with the former — unless, of course, what they are trying to «conserve» is abortion, pornography, and alcohol-abetted fornication that by definition taxes our debased libertarian notion of «consent.» They ask why a few men can be expected to answer for the crimes of generations and argue very plausibly that this is not justice. Perhaps they are right. It’s difficult to say this side of heaven and hell what would be.
Our attempt to reckon with the reality — past, present, and future — of sexual assault and harassment began before Kavanaugh’s nomination. I hope it continues no matter what happens on Thursday and that in the future, when their minds are less clouded by suspicion, conservatives come to recognize that opposing the murder of the unborn does not exhaust the scope of our commitments to human dignity.