We now enter the second week of the Shakespearean drama that’s gripped Washington and the nation writ large: The confirmation hearings of Brett M. Kavanaugh, President Trump’s nominee for the Supreme Court. And while all this drama plays out, two thoughts keep recurring in my head: I wonder what Kavanaugh’s two daughters (10 and 13 years old) are going through in school? I hope they’re okay. And then followed by, I wonder what thought processes are whirling away in the heads of the Republican Senators? How are they processing all of this?
It’s become a popular parlor game nowadays to get on the Internet, usually Facebook, and write hot takes taking umbrage at the current circus that’s ongoing in Washington. And while I fully admit to enjoy launching rhetorical broadsides at complete strangers on social media as much as anyone else, today I thought I’d take a deeper, more empathic dive into a perspective that I don’t think has been explored as much: What are the Republican Senators currently thinking? Why are they currently still supporting Kavanaugh?
After watching her testimony last Thursday, the general sentiment has been –a sentiment I agree with– is that Ford is highly credible. At this point, I don’t think many people believe Ford is outright lying, trying to thwart a SCOTUS confirmation for the Republicans, a political party that she opposes. The fallout for her after this will simply be too high. She has already received death threats for her and her family. She’s already had to change her name online and move locations. Couple this to the fact that before this flaming dumpster mess fell into her lap, she was already a successful researcher, a professor, and widely published and respected in her field, the odds are slim that she would throw all of that away in a heartbeat to try sinking Kavanaugh’s confirmation. For the rest of history, she’ll now be remembered by most people not for the years of research that she’d meticulously performed, compiled, and published; not for her tenure as a professor teaching the hundreds of students that she has taught; but she’ll now be a footnote forever, to most people, in someone else’s story: Brett M. Kavanaugh’s confirmation process for a SCOTUS seat.
Kavanaugh, on the other hand, has every incentive to lie. His character has been attacked in the most vicious way possible. Had this been a case of petty theft during adolescence or even arson, it could be more easily waved away as the tomfoolery of youth and naiveté. But these are accusations of sexual assault and attempted rape. In the public consciousness, there’s a particular circle of hell that burns bright for villains of this stripe. With some mental gymnastics, one can justify larceny (Jean Valjean stealing a loaf of bread for his ailing sister) or even acting on a dare to break and enter private property (sneaking onto school grounds after hours). But sexual assault, let alone attempted rape? Forget it. That’s going to follow you to the grave until the day you die. That gets its own bullet-pointed category in your Wikipedia entry.
Thus, Kavanaugh –the father of two young daughters and an avowed Catholic– understandably has every reason to not only fight these charges but to categorically deny them with utmost vehemence. Additionally, if Kavanaugh were to even allow the slightest sliver of possibility enter the picture, if he were to admit to even have possibly gotten “black-out drunk” one night and couldn’t remember what came after… well, that’d simply be the end of his confirmation and his SCOTUS dreams. We’re living in a day and age where even the slightest admission of even just the possibility of guilt will summarily lead to public execution in the town square. The sad story of Kevin Spacey comes to mind who was turned persona non grata overnight for an encounter thirty years ago that he didn’t remember but still apologized for. For his apology and non-denial, Spacey was swiftly excommunicated.
So. Given this current state of play, why are Republican Senators still rallying behind Kavanaugh? Here are several rationalizations that the senators may be currently entertaining:
1) Dr. Ford only has allegations and no concrete evidence. As credible as her claims may seem, and as much as circumstances favor her veracity, there is no actual proof. Most importantly: There is no firsthand corroborating witness of the account.
This is actually not a difficult exercise for one’s imagination: Imagine, for the moment that you are accused of sexual harassment and attempted rape. And imagine, for the purposes of this thought experiment, that you are innocent. Moreover, you are on the brink of realizing a lifelong dream; after decades of diligent work and effort–first in your class in high school, cum laude Yale Law School graduate, clerk for SCOTUS Justice Kennedy, US Circuit Judge from 2006-2018– you are on the very cusp of achieving everything you ever wanted and hoped for. And then at the eleventh hour, a bombshell of allegations drops, accusing you of a crime that you did not commit. The accuser has no concrete evidence whatsoever, just piecemeal recollections from 35 years ago. There is no formal due process but suddenly your confirmation hearings are derailed overnight and the court of public opinion nationwide has viciously turned against you. Protesters are calling you a “rapist” on signboards outside the capitol. Your youngest daughter, 10-years old, asks you, “Daddy, what’s a rapist?”
If this happened to you, and you were innocent— you wouldn’t be upset? Outraged and angry even?
2) Even if Dr. Ford’s story is true, this event would’ve happened 35 years ago when Judge Kavanaugh was 17-years-old. Thirty-five years is a long time. History is rife with examples of men who did bad things in their youth but went on to do great things in their adult lives and latter years. Celebrated filmmaker Roman Polanski drugged and raped a thirteen-year-old girl in 1977 but went on to direct The Pianist which netted him an Oscar twenty-five years later, in 2002. In 1969, Ted Kennedy killed Mary Jo Kopechne, age 28, in a driving accident at Chappaquiddick when he was 37-years-old, but went on to become an instrumental leader in helping pass major healthcare legislation as a Massachusetts senator that benefited tens of millions of Americans; he even for a time served as Majority Whip. Kennedy’s case is especially notorious too because he and his family tried to cover up the entire incident when it first happened. These two examples aren’t even ideal parallels because both Polanski and Kennedy were already well into adulthood when they committed their crimes. (Which, if anything, further bolsters the defense of a “guilty Kavanaugh” scenario, since he was only 17 at the time of the alleged sexual assault.) But the point still stands: Plenty of people have done terrible things in their younger years and then went on to do good –even great– things in their latter years. It’s an old maxim, after all, that we aren’t defined by the worst things we’ve ever done.
In fact, you can further make an argument that having actually done something bad in his past as a youth gives him valuable, lived experience, empathy, and compassion that may be valuable as a Supreme Court Justice. Everyone makes mistakes. Some of us make serious mistakes that are so severe, they irreversibly fill the rest our days with guilt and regret. If only we had done x differently. If only… Assuming that Kavanaugh was indeed guilty of the crime charged, and assuming he feels guilt and contrition in his heart of hearts (a big assumption, certainly), then there’s real value in putting him on the highest court in all the land. Above all, he’ll be mindful of the importance of second chances.
3) Thomas Jefferson once wisely remarked that in a democracy, “The government you elect is the government you deserve.” In 2016, our country collectively spoke with a single voice and elected a man with a clear record of misogyny and sexually harassing women –a man who’s even occasionally bragged about it publicly to media outlets– to be the President of the United States. It is crystal clear to me that on a list of priorities that Americans care about, sexual harassment against women is not one anywhere near the top. Supreme Court Justice positions are appointed, not elected, lifetime tenures nominated by the President and confirmed by the Senate. In 2016, the constituents of this country democratically saw fit to handover the Presidency, Senate, and House all to the Republicans. Elections have consequences. As a country, as a people, we collectively made our beds. Two years later we are now seeing the results of that November 2016 election and it’s time to sleep in that bed. A twice-divorced philanderer and recorded sexual harasser is our Commander-in-Chief. And a supine Republican Congress is spinelessly doing his bidding.
Do American citizens who are Republicans care about gender equality and treating women with respect and dignity? Yes, of course we do. Do these American citizens care more about claiming the ninth SCOTUS seat which’ll possibly overturn Roe and be primarily driving national policy for at least an entire generation of Americans? Maybe for 30-40 years? Especially in an age when Congress is increasingly gridlocked and passing virtually no legislation of any significant import? Yes.
4) This leads to my final rationalization, and perhaps one as powerful as the first on this list: As heartrending as Dr. Ford’s testimony was, the 51 Republican Senators are likely performing the following moral calculus in their heads: We need to look at the big picture.
Consider our current state of government and specifically, over the past two decades, what single governmental institution that has most shaped national policy? The President may be able to singlehandedly rule via executive order but these orders are usually more narrowly scoped and can be overturned every four years as soon as a new president is elected. Meanwhile, our legislature has been enmeshed in bitter partisan division, the likes of which not seen since the Civil War, which has led to a near-total gridlock on passing and revising laws. And so the last instrument of policy-making that remains is SCOTUS. SCOTUS has been the only governmental institution routinely functioning and actually shaping national policy. Whether it be Bush v. Gore in 2000, Citizens United in 2010, Obergefell in 2015, Trump v. Hawaii in 2018 (the travel ban), or dozens of other decisions, it’s indisputable that SCOTUS is where all the chips are this day and age.
When Republicans vote on Kavanaugh’s confirmation later this week, they’ll be well aware of what’s at stake. They have, after all, had courtside seats to the complete and utter incompetence that their own legislative body has been in recent times. As SCOTUS decisions are increasingly being determined in 5-4, party-line votes, whoever controls SCOTUS will control America’s future. And so for all of Kavanaugh’s flaws, as grotesque as they may be, midterm elections are a mere five weeks out, after which the GOP may well lose control of the Senate, and by extension, the ninth SCOTUS seat. Mitch McConnell is a master strategist and tactician, among the best to have ever operated in Washington. He’s going to try to ram through Kavanaugh’s confirmation this week and will at every opportunity remind Collins, Murkowski, and the other senators on the fence of what’s at stake: “Do you care more about Dr. Ford’s sad story? Or do you care more about America’s future? Do you want a moderate like Merrick Garland on SCOTUS? Or do you want another Gorsuch or Scalia? Which Supreme Court Justice shares your vision for America? Shares your values? Which will overturn Roe and save this country from the liberals?” Etc, etc.
The honest truth is that the stakes for a SCOTUS seat are simply too high. Again, these are lifetime tenures. An op-ed in the NYT recently made a good case, I thought, of term-limiting SCOTUS appointments. I feel this is a good idea. Otherwise, we force our Senators into the current kind of “Sophie’s Choice” dilemmas and moral conundrums that they find themselves in now. In an impossible situation with no good answers.