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For those of you who are walking in late, Brett Kavanaugh has been nominated by President Trump for a position on the Supreme Court. He is accused of sexually assaulting Christine Blasey Ford, at a high-school party, in the 1980s. Arguments for and against taking these allegations seriously are highly partisan. The Senate Judicial Committee is reconvening this week to address them; Kavanaugh and Ford will both be testifying. Many people feel that this will not be a fair hearing, but just a continuation of the highly-partisan confirmation process that has already taken place.

Longtime reader Bruno sent me the following question:

“Any wisdom about the Kavanaugh case beside the fact that we want him disqualified? I’m a bit confused by the digging into someone’s past from 35 years ago?”

I like this question because it asks for a specifically non-political answer. Most of what we have heard about Kavanaugh and Ford has been strategically motivated, arguments from conclusions rather than genuine exploration of the issues. Is there then a philosophical justification for Congress to look so far into someone’s past? I think there is, but I don’t believe that the politicos have articulated it well.

The dominant argument for addressing Ford’s accusation seems to be that if Kavanaugh did it, he was wrong, and wrong-doing must be addressed regardless of how much time has passed. On its face, this is both true and undeniable. Justice in the metaphysical sense is only served when there is an accurate accounting of people’s actions. If Truth and Reconciliation Commissions have taught us anything, it is that it is better to know than not know.

The problem is that it’s unclear whether the Judicial Committee is the appropriate venue for addressing these charges. Ford’s accusation is, to a certain extent, a criminal one. It could conceivably lead to criminal charges, which could, in turn, lead to punishment or civil penalties. The hearing process itself is fraught. Either Kavanaugh or Ford could be charged with contempt of congress if their testimony is deemed mistaken or misleading, and the social consequences are immeasurable. Ford’s life has already been irrevocably disrupted. Whether Kavanaugh is confirmed or not, both will live in the shadow of this accusation for the rest of their lives (more on this, in a moment). In short, both accuser and defendant deserve the full protection of our criminal justice system, but the Judicial committee does little other than expose them to the political fray.

Furthermore, while this is the aspect of his defense that is most vociferously waved away by Democrats, Republicans are correct in pointing out that if Ford is believed, Kavanaugh will lose a job for which he is a finalist, a good government job, at that. There must be higher standard for both hiring and firing of government positions because all such jobs are political in nature, whether the office is a politically appointed or not. Supreme Court Justice is a lucrative, secure position, that leads to a myriad of other opportunities including well-paid speaking gigs, book contracts, and political power. The first amendment protects against government reprisals for a reason, and Democrats are wrong to assume that the justification for not hiring a guilty Kavanaugh is self-evident. It is not and this is what Bruno’s question is pointing out.

So, is there a case for “digging into someone’s past from 35 years ago,” as Bruno puts it? Yes, there is, but it is complex, and reducible, I think, to three main arguments.

  1. Ford’s experience is as valid as anyone else’s.

I wrote that both Kavanaugh and Ford “will live in the shadow of this accusation for the rest of their lives,” but this is an incomplete statement. The fact of the matter is that Ford has already been living in its shadow and has done so since she was 15 years old. Even if it turns out that Kavanaugh was not the assailant, the assault has still had a profound influence on her life. She has every right to say her piece and be heard. She deserves every opportunity to make an accusation and have it taken seriously. All Americans have this right and she is no less important than anyone else, even though she is a woman and her accusation is sexual in nature.

Many defenders of Kavanaugh write as if the confirmation process is his experience alone and Ford is forcing her way into it—the irony of which is, I hope, obvious. But this approach is mistaken. This confirmation hearings are her experience as well. She reads the newspaper, sees his name, overhears political conversation in the hallway, and relives the assault over and over again. This would be no less true, if Kavanaugh were not her assaulter, because she believes he is and experiences her daily life as if he were.

If the confirmation process results in her learning that he was not her attacker, than justice has been partially served and she can, if she chooses, seek out the attacker’s real identity. If the confirmation process confirms that he was indeed the attacker, then, at least, her voice has been recognized and she can move to the next stage of her recovery, whether he is confirmed or not. As I suggested above, I do not think the Judicial Committee is the ideal venue for such a discovery, but it is what we have right now, so it is what Ford and Kavanaugh get. Congress had 27 years since Anita Hill’s testimony to develop an alternative mechanism to address sexual misconduct, yet they have done nothing. Ford is therefore acting on their wishes. In essence, she has been invited.

  1. A purpose of confirmation hearings is to find patterns.

Let’s assume for the moment that Kavanaugh did attack Ford. Even so, there is still something to be said for not holding 53-year-olds accountable for mistakes they made when they were 17. Adults are not the children they were. They just aren’t, and even if we decide that some crimes are so heinous that perpetrators need to be punished 38, 100,  or even 500 years later, we must also recognize that the nature of the appropriate punishment will likely change over time. The 17-year old who sexually assaults ought to be separated from society until, at minimum, we can be sure that he or she won’t do it again. The 53-year old who assaulted once, 36 years earlier, may not need to be separated from other. Maybe what he or she needs instead is some form of penance.

The operative question then is not just whether Kavanaugh attacked Ford, but whether he continued to act in similar ways as he matured. Does the accusation reveal attitudes and behaviors unbecoming of a Supreme Court Justice? It is too soon to tell, but there is evidence to suggest that it does. Kavanaugh is reported to have been in a fraternity who celebrated unacceptable attitudes towards women, he is said to have had a history or heavy and self-destructive drinking behavior that leads him to treat women badly, and there is a new accusation that he exposed himself to a different women without her consent. This combined with what some say are anti-women judicial decisions and interpretations (a political determination, it might be argued) does suggest character traits that make him unsuitable to adjudicate cases that affect women’s rights, but I shall still remain agnostic on what the evidence shows. Instead, to answer Bruno’s question: the value in digging up behavior from 35 years ago is to determine whether or not Kavanaugh continued to act in similar ways. If the attack on Ford happened, was it a one-time thing or is it a window into what kind of person the judge actually is? This, it seems to me, is exactly the kind of question a confirmation hearing ought to address.

  1. We learn about Kavanaugh from his reaction to the accusation, whether it is true or not.

For me, the most important indicator of Kavanaugh’s character is his reaction to Ford. I know that I have hurt people in my past. As a male who survived his own teenage years and twenties, I guarantee that I was inappropriate in ways that I am still unaware of. The culture pushes and pushes young men to be a certain way, and no matter how much of a non-conformist I may have been, I still lived under clearly articulated expectations, gender roles, and misogynistic dating practices. I was almost always expected to be the initiator and as we all know, there is a fine line between initiation and aggression.

To say these possibilities haunt me is an understatement. The idea that I might have caused anyone pain, especially people I cared deeply about, tears at my soul. I hope with all of my heart that nothing I did even came close to what Kavanaugh is accused of, but I was just as wrapped up in myself as everyone else was. Anything is possible.

With all of this in mind, I would have liked to have seen Kavanaugh acknowledge his own past. If he remembers attacking Ford, I wanted him to admit it, but if he doesn’t, I would still have liked to have seen empathy and consideration of her suffering, such as: “I did not do this, or at least I do not remember it at all. If it was me, I was so drunk, that I have no recollection of it at all. But the fact that Ford associates me with it breaks me heart and the fact that she had to experience it cuts me to the bone. No woman or girl, frankly no person, should ever be the victim of assault and the idea that I might have played even a tiny part in one is unacceptable to me. I am sorry this happened to you, Dr. Ford and I am sorry for any part I may have played in it, knowingly or not. I invite you, if you are willing, to meet with me and tell me your story, so I can hear it, in your own voice, and so I can address you in person, not as an abstract object of political debate. And, as for if and when I am a Supreme Court Justice, I promise to take your suffering with me to help inform myself of the ways in which women are victimized, and the ways in which the law and the courts have disregarded women’s experience in the past.”

That is what I would have liked to hear; this is what I hoped I would have said in the same situation. But, all Kavanaugh did was deny the allegation and sit quietly while right-wing political machine attacked her. There is no justification for his lack of action, regardless of whether he is guilty or not. Kavanaugh’s silence shows me all I need to know about his character and makes me question his fitness for appointment and his humanity.

What then is the value of digging up accusations from 35 years ago? Doing so recognizes Ford’s experience, it helps reveals patterns in the nominees life, and it reveals Kavanaugh’s character, three things that make America a better, more egalitarian, and more democratic country.

I will point out again, that at no point here, do I take a position on whether Kavanaugh is Ford’s attacker. My conclusions are all independent of whether he did it or not. The process that amplified Ford’s voice is a valuable one whatever the outcome and I hope that future confirmation hearings continue to call attention to those who have not yet been heard.

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2 comments on “Is the Senate truly justified in considering Brett Kavanaugh’s behavior when he was a teenager? {Reader’s Question}

  1. I have a quick note and a comment, Jack. You mentioned “15,” but Kavanaugh would have been 17 (and Ford would have been 15). For any given teenager, there might not be that big a difference between a 15 and a 17 year-old, but generally, I’d say we justifiably expect more and better from a 17 year-old than we do with a 15 year-old.

    More importantly, if indeed Kavanaugh was a big drinker in high school (and he knows whether he was), it would say a lot about a Supreme Court nominee to come to the table as a judge, rather than a competitor. If he drank to excess, he’d have to take his own recollections with a grain of salt. He might honestly say that he doesn’t think he did such a thing and has no recollection of so doing, but in fairness, he’d have to acknowledge the possibility that at some point, he could have been drunk enough to do something terrible that he can’t remember. Obviously, it would be tough stuff to acknowledge this publicly. But I’d think a lot more of him if he said, “If indeed I did such a thing, something I have no recollection of doing, I am both sorry and I would be deeply ashamed. I drank heavily at times, and I must acknowledge the possibility.” By fighting fiercely and using language like “smear campaign,” he effectively says, “I would know if I did such a thing, and I’m telling you I didn’t.” I understand that doing what I’m saying here would more than likely sink him, but ambition should take a back seat to a potential Justice’s sense of fairness, which in this case would be fleshed out by acknowledging the possibility that he might not have a recollection of something he did in a drunken state.

    1. Jack Russell Weinstein says:

      Thanks for the correction, Tony. I fixed his age, and I agree. He could have acted in a way that garnered much more respect, but he does not seem to take any responsibility for his past. That’s disappointing for any adult, let alone a contender for SC Justice.

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