In the United States, juvenile drug offenders are routinely tried as adults, 13-year-old murderers can be (and have been) sentenced to life without parole, and teenagers who text naked pictures of themselves regularly get arrested for child pornography, and forced to spend the rest of their lives as registered sex offenders.
The conservative movement has not, typically, lamented these realities. In fact, the American right played a central role in bringing them into being. Richard Nixon’s appeals to “law and order” helped inaugurate a draconian turn in American criminal justice, one that both parties ultimately embraced, but which Republicans have championed with greater fervor and consistency. And a cornerstone of “tough on crime” policy-making has been to recast juvenile offenders as irredeemable “super-predators”: During the 1990s, virtually every state passed laws enabling prosecutors to try juveniles in adult criminal courts, and increasing potential sentences for crimes committed by those under 18.
The Trump administration has evinced little discomfort with this state of affairs. The president regularly refers to teenage gang members as “animals,” and has, in the past, called for imposing the death penalty on alleged teen rapists. Attorney General Jeff Sessions, meanwhile, has actively made the criminal justice system more punitive toward juvenile offenders. And other right-wing commentators have frequently defended summary execution as a justifiable punishment for a wide array offenses committed by African-American teenagers.
But in the past 24 hours, the right’s thinking on juvenile justice appears to have radically changed: Where conservatives once believed that people who commit violent crimes as teenagers do not necessarily deserve the opportunity to ever reenter free society, many now contend that such people should not (necessarily) be denied the chance to serve on the nation’s highest court.
On Sunday, clinical psychology professor Christine Blasey Ford publicly accused Supreme Court nominee Brett Kavanaugh of sexually assaulting her at a party when they were both in high school. In Ford’s account, Kavanaugh “corralled” her into a bedroom during a small party, pinned her to a bed and groped her, while “clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it.” When she started screaming, Kavanaugh allegedly put a hand over her mouth, leading Ford to fear that he might inadvertently kill her.
Some conservative writers and operatives have treated this allegation with all due seriousness. And many of those who have chosen to dismiss Ford’s account have done so by questioning its veracity, not its relevance.
But a significant number of conservatives have insisted that it wouldn’t matter if the allegations were true — either because Kavanaugh’s alleged actions were normal adolescent male behavior, or (more reasonably) that the misdeeds Kavanaugh committed as a stumbling drunk 17-year-old tell us little about his character as 53-year-old, let alone about his competency as a jurist.
The president’s son offered a (characteristically crude) version of the first argument in a post on Instagram, ostensibly likening Kavanaugh’s alleged act of attempted rape to an elementary-school boy passing a crayon-written love note to his crush.
Fox News columnist Stephen Miller made this case more explicitly, suggesting that Ford’s account amounted to a melodramatic description of “drunk teenagers playing seven minutes of heaven.”
One “outside Trump adviser,” meanwhile, suggested that Kavanaugh’s behavior was such a relatable example of boys beings boys, Democrats could suffer politically for stigmatizing it.
“[Democrats are] playing a high-stakes game right now,” the adviser told Politico. “You know there are a lot of people in this country who are parents of high-school boys. This is not Anita Hill.”
A lawyer close to the White House appeared to offer a similar sentiment, telling the same publication that the allegation only strengthened the administration’s support for Kavanaugh. “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried,” the anonymous attorney said. “We can all be accused of something.”
It is possible that this Trump ally meant that anyone can be victimized by (politically motivated) false sexual-assault allegations. But given that the lawyer refers to “allegations like this” rather than “false allegations like this,” it seems reasonable to interpret his remark as claiming that “you, me, [and] every man” engaged in behavior as teenagers analogous to that described by Ford.
NeverTrump conservative Tom Nichols, meanwhile, offered the second (somewhat more reasonable) argument, tweeting, “We’ve now gone from ‘he did this terrible thing at 17’ to ‘he’s a man who treated a woman like that. Man, I hope all the people who are making this case had spotless lives at 17, because I sure as hell didn’t.”
Nichols further warned, “All of you arguing that what someone did at 17 is relevant when you’re 53 better to be [sic] ready *always* to die on that hill, because it’s going to be the new rule. Don’t complain later when the revolution eats its young.”
There are a couple glaring problems with applying this argument to Kavanaugh’s case. First, if one accepts that the allegation is true (as Nichols does), then the 53-year-old Kavanaugh has been blatantly lying to the American people over the past few days, while maligning the integrity of a woman he sexually assaulted. Second, even if one stipulates that committing attempted rape at 17 shouldn’t define who a person is as an adult, it’s still hard to see how maintaining a “never committed sexual assault” standard for Supreme Court justices would put America on a slippery slope toward a tyrannical intolerance for youthful indiscretions; not least because, as we’ve noted, America already has a tyrannical intolerance for such indiscretions — thanks, in large part, to the ideological movement that Nichols has identified with for most of his adult life.
All this said, if conservatives now wish to reform America’s criminal-justice system and draconian cultural disposition toward juvenile crime — to such a radical extent that violent teenage criminals will have a better chance of receiving lifetime appointments to the Supreme Court than lifelong sentences without the possibility of parole — then progressives should welcome them to the cause.
But it seems a tad more likely that conservatives are merely clarifying, yet again, that “law and order” means “using the law to reinforce a social order that protects those at the top of class, race, and gender hierarchies, while suppressing those at the bottom.”