interesting times

Everyone Lost at the Ford-Kavanaugh Hearings

Judge Brett M. Kavanaugh at a Senate Judiciary Committee hearing on Thursday, September 27, 2018 on Capitol Hill. Photo: Melina Mara/Getty Images

Yesterday was a spectacle I hope we do not have to experience again. We watched two human beings, Christine Blasey Ford and Brett Kavanaugh, exposed in the rawest possible fashion to the entire world, over the gravest of accusations, with no definitive evidence apart from personal testimony to draw on, 36 years after an alleged crime took place. It was a grotesque political drama, in which everyone lost.

Both Christine Blasey Ford and Brett Kavanaugh have been traumatized and ill-served by the process. At the all-day Senate hearing, there was no real sifting of evidence about her allegation that he sexually assaulted her, because nothing but memories were on the table. (We still don’t even know when or where the alleged attack happened.) Other witnesses were not called to testify, which they obviously should have been, if only to say (as they all have) that they had no memory of the event. So we were left to judge the credibility of two individuals, who both said they were 100 percent certain.

Christine Blasey Ford was not just credible, her account of her assault and trauma was deeply affecting. She was understandably anxious in such a setting, but kept her shit together, made her case poignantly and calmly — her moments of humor, her need for caffeine, her hair framing her glasses like wisteria were all thoroughly human. In her dignity and restraint and precision, she helped me and I’m sure many others better understand what sexual trauma is.

I do not believe she was making anything up. She has no reason to; she tried to avoid this; she wanted to keep this private; but she wanted, as a civic duty, to pass this along to the relevant authorities. I still don’t understand why Senator Feinstein didn’t immediately forward her letter to the FBI, whose job it is to do a background check on Kavanaugh, while keeping strict confidentiality in the process. Such a referral need not have outed Ford. It could have allowed for a proper investigation, and an airing of all this in a private session. I understand Republican suspicions of the way this turned out.

But once this all had happened, it should still have been perfectly reasonable to have a full FBI investigation, followed by a private hearing for senators to assess the facts of her allegation. The Republicans have no answer to why they won’t do that, and neither did Kavanaugh. That’s a huge mark against them, it seems to me. Just a week is all we would need. And if Kavanaugh is as innocent as he claims, an FBI inquiry would surely help him clear his name. Besides, there’s no rush, no mandatory deadline. The current Senate will be the same through next January. I’m not sure we would learn anything new from an FBI process that we don’t know already, but more scrutiny is never a bad thing. Maybe something would turn up.

Which brings me to Kavanaugh’s testimony, which was spellbinding in a different way. He behaved, it seemed to me, exactly as an innocent man would behave if accused of a crime in his teenage years — especially a crime that was unveiled by his political opponents at the very last moment. It was one that he could not possibly refute (no one can prove a negative) and it catalyzed a media frenzy — multiple gang rapes! — that continues to get more extreme every day. There’s a reason we have statutes of limitation. When alleged crimes happened decades ago, proof is very hard, and allegations much easier. And when the alleged perpetrator was also a minor, we’re in a very weird and difficult place.

As the afternoon went on, I found my mood swinging back to Kavanaugh’s defense. At first, I was shocked by what seemed to me to be his shouting and belligerence. But then he drew me in. Of course he was angry. Wouldn’t you be if you were innocent or had no idea where this allegation suddenly came from? He wasn’t being accused of sexual harassment, or sexual abuse as an adult in a way he could have refuted or challenged. His long-lost teenage years as a hard-drinking jock were now under the microscope. Even his yearbook was being dissected. Stupid cruelties and brags from teenage boys were now being used to define his character, dismiss his record as a judge, his sterling references, his respected scholarship, his devoted family, his relationship with women in every capacity. He had to fend off new accusations, ever more grave and ever more vague.

And there were times, it seems to me, that he simply couldn’t win. If he hadn’t hired and mentored many women, it would be proof he was a misogynist and rapist. But the fact that he did hire and mentor many of them was also proof he was a misogynist and a rapist, who only picked the pretty ones. If he hadn’t shown anger, he would have been obviously inhuman. When he did express rage … well, that was a disqualifying temperament for a judge. It didn’t help that the Democrats made no pretense of having an open mind, or that any glimpse at mainstream media — let alone media Twitter — revealed that it had already picked a side. This was, for the major papers, especially the New York Times, a righteous battle against another white straight male, and the smug, snarky virtue-signaling on Twitter was in overdrive. Even Kavanaugh’s choking-up was mocked — just another contemptible “bro-crier.”

And so when Lindsey Graham suddenly unloaded on the Democrats, I felt a wave of euphoria. “Yes,” I said to myself. “Go get ’em, Butters!” When Senator Blumenthal got all self-righteous about a single lie destroying someone’s credibility, I actually LOL-ed. Then I remembered all those op-eds and essays that decided to judge one moment in one man’s teens as somehow deeply revealing about … white privilege, toxic masculinity, white supremacy, toxic homosociality, bro culture, alcoholism, patriarchy … you name it, Kavanaugh was suddenly its foul epitome. He was an instant symbol of all the groups of people the left now hates, by virtue of their race or gender or orientation. And maybe he is. But did any of that necessarily make him guilty of anything, except by association?

At lunchtime, I thought he should withdraw. Ford was unforgettable, dispositive. But then the afternoon had me drifting back toward the Republicans. I doubt I am alone in this, just as I doubt my liberal friends understand how deeply they’ve alienated so many with their reflexive prejudices. By dinnertime, I felt like I’d vote for him, if I were a senator — because I found the Democrats so nauseatingly priggish. Then I remembered I was against the Kavanaugh nomination for other reasons entirely: especially because of his deference to presidential power when we face a president who would dearly like to blow a giant hole in the rule of law. And since I couldn’t in good faith choose between Ford and Kavanaugh about something that allegedly happened 36 years ago, I simply decided to put this accusation in a box. I’ll make a judgment on what I can know, not on what I cannot possibly judge.

But I will say this.

To the extent that the hearing went beyond the specifics of Ford’s allegations and sought to humiliate and discredit Kavanaugh for who he was as a teenager nearly four decades ago (a dynamic that was quite pronounced in some Democratic questioning of the nominee), it was deeply concerning. When public life means the ransacking of people’s private lives even when they were in high school, we are circling a deeply illiberal drain. A civilized society observes a distinction between public and private, and this distinction is integral to individual freedom. Such a distinction was anathema in old-school monarchies when the king could arbitrarily arrest, jail, or execute you at will, for private behavior or thoughts. These lines are also blurred in authoritarian regimes, where the power of the government knows few limits in monitoring a person’s home or private affairs or correspondence or tax returns or texts. These boundaries definitionally can’t exist in theocracies, where the state is interested as much in punishing and exposing sin, as in preventing crime. The Iranian and Saudi governments — like the early modern monarchies — seek not only to control your body, but also to look into your soul. They know that everyone has a dark side, and this dark side can be exposed in order to destroy people. All you need is an accusation.

The Founders were obsessed with this. They realized how precious privacy is, how it protects you not just from the government but from your neighbors and your peers. They carved out a private space that was sacrosanct and a public space which insisted on a strict presumption of innocence, until a speedy and fair trial. Whether you were a good husband or son or wife or daughter, whether you had a temper, or could be cruel, or had various sexual fantasies, whether you were a believer, or a sinner: this kind of thing was rendered off-limits in the public world. The family, the home, and the bedroom were, yes, safe places. If everything were fair game in public life, the logic ran, none of us would survive.

And it is the distinguishing mark of specifically totalitarian societies that this safety is eradicated altogether by design. There, the private is always emphatically public, everything is political, and ideology trumps love, family, friendship or any refuge from the glare of the party and its public. Spies are everywhere, monitoring the slightest of offenses. Friends betray you, as do lovers. Family members denounce their own mothers and fathers and siblings and sons and daughters. The cause, which is usually a permanently revolutionary one, always matters more than any individual’s possible innocence. You are, in fact, always guilty before being proven innocent. You always have to prove a negative. And no offense at any point in your life is ever forgotten or off the table.

Perhaps gay people are particularly sensitive to this danger, because our private lives have long been the target of moral absolutists, and we have learned to be vigilant about moral or sex panics. For much of history, a mere accusation could destroy a gay person’s life or career, and this power to expose private behavior for political purposes is immense.

I’m not equating an accusation of attempted rape in the distant past with sodomy. I am noting a more general accusatory dynamic that surrounded Ford’s specific allegation. This is particularly dangerous when there are no editors or gatekeepers in the media to prevent any accusation about someone’s private life being aired, when economic incentives online favor outrageous charges, and when journalists have begun to see themselves as vanguards of a cultural revolution, rather than skeptics of everything.

And for what it’s worth, I’m not sure we have any idea how the politics of this will play out. Both political parties may be pursuing pyrrhic victories. If the GOP manages to muscle Kavanaugh onto the court, it may galvanize the Democratic base to such an extent it will create a blue tsunami in November. It could poison the Republican brand for women even more than it is already.

But if this nomination falters, Kavanaugh will be a clarion call for Republicans to turn out. It could help them in November. And if Trump nominates Amy Coney Barrett as a replacement in the lame duck session of the Senate, another attempt at character assassination will be a very risky option for the Democrats, as would be attacks on Barrett’s religious faith.

So on the substance of the Court’s future, it seems to me that the Democrats have ensured this past week that if Kavanaugh is confirmed, they will have created an embittered foe in the Thomas mold. And if they end up with Barrett, they will have have someone on the Court more certain to strike down Roe than Kavanaugh.

See you next Friday.

Andrew Sullivan: Everyone Lost at the Ford-Kavanaugh Hearing