Brett Kavanaugh cannot prove a negative, his supporters say, and should not be judged on something he may or may not have done when he was a youth. On those two points, they are correct. I might think they were also sincere if the right-wing powers behind him had ever cared about poor people, black and brown people, asylum-seekers, anyone who’s been in prison, any kid being tried as an adult, anyone branded a sex offender, anyone convicted by the press before trial, or by police on the side of the road, or by the architects of Guantanamo—that is, the multitude in the cross-hairs of suspicion, commonly denied equity, due process and the possibility of redemption.
Kavanaugh’s sexual inquisitors are similarly flippant about justice. They ignore the problem of proving a negative and simply declare him a liar; they then focus on the story of Christine Blasey Ford, declare it true and steam ahead, affirming that accusation equals guilt and the bad acts of youth should forever color the life chances of an adult—scourges that those in the cross-hairs mentioned above know intimately. The sophomoric cruelties of Kavanaugh’s partisans, belching from the internet and in live threats, only bolster their opposite number’s argument that man is forever an adolescent. The late-hour accusation by a former Yale classmate has the odor of pile-on, and its flimsiness, in The New Yorker’s new panting approach to reporting, could be used to subvert Ford. I’m tempted to say that when it comes to sexual politics, a lot of grown-ups are acting like high-schoolers, but that would be a slur on youth.
Virtually everything about this spectacle except the tentative, then stoic intervention of Ford reeks of bad faith. Wisdom crouches in the corner, silent. Yet wisdom—have we forgot?—is the fundamental and ancient criterion for a judge. Kavanaugh has failed the test of wisdom not by what he is accused of doing when he was 17 and drunk but by his adult neglect of reflection and his indifference to suffering, something this moment puts in a sharper light. He does not deserve to be on any court, much less the Supreme Court.
That does not get his unwise antagonists off the hook, though.
For anyone who still cares about principle, the Kavanaugh case is not a matter of belief, nor will it come down to proving or disproving Ford’s allegations. The Senate confirmation process is not a court of law. It is, however—in theory if not in fact—an arena for considering the problems and promise of justice, for taking the measure of a man, in this case, and his capacity to think deeply, to search bravely, to act humanely, beyond the limit of mere ambition. Ford’s intervention puts the hard stuff of humanity at the center of that arena, something that has been absent, most strikingly in the Senate’s challenge to Kavanaugh’s greatest ethical failure: his response to torture. For reasons probably of racism (and partly the nature of sex scandal) torture has never raised the temperature of politics or the public to the same fever as sexual accusation. Ford’s entrance and her story, which is so particularly human, so simple yet complex, so weighty with moral dimension, call the profound questions on that subject. (Whether they will have that effect on the Senate is doubtful.)
We cannot know what happened one night in suburban Maryland in 1982. Pretending we can is dishonest, and the events Ford describes are no more or less believable because of the highly fishy Yale claim or the latest-breaking third accuser (I shall not address those.) So what do we know?
We know that Ford has suffered. We know that she is brave; like Anita Hill, she can gain nothing from coming out that compensates for the slings and arrows, the scandal-jacked press, the overwhelming din, whether of support or suspicion, that she is enduring. We know that as teenagers she and Kavanaugh occupied a social set where fun was fueled by getting blind drunk and being stupid. Maybe her story is true; maybe it became confused over time, in small ways, or consequential ones. Her lawyer has said she had one beer on the night at the center of the story. Maybe it hit her hard; maybe she had more and can’t remember, along with the other details that easily blur or slip away, especially in a culture where forgetting is often played for laughs.
I spent most of high school going to parties like this. Everyone was drunk, including the kids behind the wheel in the car home. Afterward—amazing that we lived—a standard line was “Oh my god, you were so wasted… I was so wasted… he was so wasted…” Everyone laughed, sometimes memorializing the events later in yearbook messages sprinkled with in-jokes. One time a girl woke me in the morning to check if the car was in the yard; she couldn’t remember driving home. Plenty of kids forgot making out, passing out, throwing up. In the time since, I have not heard of anyone from that crowd accusing another or being accused of assault, but an accuser’s years of silence would not be surprising—sexual honesty was not our strength—nor would dumbfounded blankness on the part of the accused. Why were we so insecure with one another? Longing for connection, attention, a kiss, why were all of us, girls and boys alike mustered in our single-sex schools, so afraid that we were willing to be foolish pretending not to be, pretending that we couldn’t hurt or be hurt?
What do we know?
Wasted is the title of a lightly veiled memoir about being stupid drunk at Georgetown Prepatory School and beyond by Mark Judge, Kavanaugh’s high school friend, whom Ford says was in the room and involved on the night of the assault she alleges. In a letter, Judge has told the Senate Judiciary Committee, “I have no memory of this alleged incident.” Blacking out, remembering nothing, were regular experiences for Judge, going by his book, so it is entirely possible this statement is true. Others whom Ford named as being at the party have said they had no memory or knowledge of it or of Kavanaugh, which proves nothing. That’s how memory works when nothing harrowing happens to you. A group of women, some who have known Kavanaugh since high school, have written that he was the sober boy on the side, eager for a chat about philosophy. Maybe, but it is hard to believe that the treasurer of the Keg City Club, accomplice in the blotto culture outside school and at Rehobeth beach in summer, where kids tore up houses without a care, was not more like Bart O’Kavanaugh in Wasted—drunk and passed out in a car—at least some of the time. That’s how high school works.
Kavanaugh says he never got so drunk as to pass out or not remember. And the truth is, even if he had, none of this proves he attacked Ford. Granting the accused the full benefit of the doubt, we will probably have to live with uncertainty. We don’t have to live with Kavanaugh on the Supreme Court.
The past does impinge on the present; one should learn something from it. Kavanaugh has had thirty-five years to think about high school, specifically the formative culture of elite men. Thirty-five years to reflect on why so many felt the need to annihilate their personalities, why they were so careless and aggressive, how they thought about girls and sex and, especially, the privilege of breaking rules and getting away with it. It appears now that this former self-described member of the “Rehobeth Police Fan Club” had not thought about it a bit.
If his first statements after Ford went public were typically bland denials vetted by lawyers—variations on “I categorically and unequivocally deny this allegation”—he had a chance, in his Fox interview of September 23, to offer some insight on the culture that fortified him and anguished Ford. Martha MacCallum prodded him for any thoughts on women’s expressed experience, on memory, on competing versions of the past, on whether anyone (say, someone who might come before him in court) should forever be judged by youthful behavior. Kavanaugh was a robot. He ventured no ideas, no interest in the human condition, no sense of moral wrestling, even in the abstract. He had his talking points.
Ambition says, Stick to the script; play it safe even at the risk of appearing to be a depthless drone. Wisdom would say otherwise. Intellectual curiosity and a feeling for justice would say otherwise.
When Kavanaugh was assistant White House counsel from 2001-2003, his office was immersed in one of the most momentous debates in this country’s history. His boss, Alberto Gonzales, was seeking legal justifications for torture, for detention without trial, for ignoring the Geneva Conventions and pissing on habeas corpus, the ‘great writ’, legal obstacle to tyranny since the 12th century. Put another way, the Bush administration was debating how to break the rules and get away with it. At issue was not the anodyne “power of the president” but the power to inflict pain.
Even before the confirmation hearings began there was much attention to Kavanaugh’s record over this period: the documents withheld or belatedly released, the secrets yet to know, the points to be scored as Spartacus. So many were so busy posturing that they forgot that the most important answers were not to be found in records, however illuminating, but in this nominee’s ability to address the question: Where is justice to be found in the contest between the mighty and the meanest, as Solomon put it; and how do the just respond in the face of suffering?
By simply entering the arena, a person in pain, Ford casts in shadow all the procedural wrangle and makes plain that which has been obfuscated on a host of issues but on torture most acutely, and aptly in Kavanaugh’s case: the human person and the exercise of power. The figure of the person—how many thousands gone? (and, no, I am not equating Ford’s experience with anyone else’s)—prompts a different consideration of the record, one grounded not in documents but in ethics, human sympathy, where the issue of torture always belonged but which has been obscured by two decades parsing the intricacies of cruelty: how much pain? to the point of organ failure? who was in charge? who authorized? who was in the loop? Shifting the focus lights up Kavanaugh’s deficits, though hardly his alone.
Kavanaugh has long repeated he “was not involved” in US torture policy, and technically he was not authorized even to know about it. “I don’t recall having any conversations with Brett about torture,” Gonzales has said. But of course he knew something about it; everyone knew something, if only by watching CNN in January of 2002 as masked US soldiers met prisoners from Afghanistan coming off a plane in Guantanamo—orange jumpsuits, manacles, turquoise hoods over their faces. The men had been chained to the plane for 8,000 miles. We know Kavanaugh was involved in at least one heated discussion about denying detainees legal representation. He is not reported to be among those who got heated, and years later on the federal bench, he would deny a habeas corpuspetition from a Guantanamo prisoner in Bihani v. Obama (flouting the Court on which he hopes to sit in the process by arguing that the US government has no obligations under international law that haven’t been codified by domestic statute).
Job duties notwithstanding, everyone in the White House counsel’s office was confronted with a moral choice, which was also a choice about justice and humanity: Will you accommodate suffering? Will you be any part of the machinery that seeks to exact and justify it?
Kavanaugh was willing to accommodate suffering. How many additional meetings he may have been in is incidental. More, his “not involved” involvement is either gutless evasion or further evidence of an incurious mind, a profound apathy toward knowing, questioning, reasoning independently. In 2004, as the president’s staff secretary, he was copied on a White House email outlining a public relations strategy saying Bush “has never considered authorizing torture under any circumstances.” It was a lie, put about after an infamous “torture memo” was revealed in the press. Kavanaugh told the Senate in 2006 that he hadn’t known of the memo until it was leaked; maybe so, but once he did know he had a chance to intervene, to oppose the deception at least, and he did not. He accommodated deception.
Torture was officially an embarrassment by 2006 (though still in use). Ambitious for a judgeship, Kavanaugh was safe telling the Senate, “I do not agree with the legal analysis in the memorandum, including with respect to the definition of torture.” Ambitious for a lifetime appointment to the Supreme Court this year, he flattered Senator Dianne Feinstein for her report on the CIA torture program; then he declined to say what he thought about Trump’s advocacy of waterboarding and worse, danced around a question on the Bush torture policy and presented himself as a mere paper-pusher for a 2005 signing statement in which Bush declared that he could ignore the congressional prohibition of torture that he’d just autographed. “It would’ve crossed my desk,” Kavanaugh said of the statement, relying again on the benefits of playing the dimwit. Feinstein tired of the exchange, which Kavanaugh capped with a bow to the importance of “backbone.”
Except for a handful of low-level working-class soldiers, everyone who ordered, justified, implemented or looked the other way at the torture policy got away with it. The elite white men and women got a step up. George Bush got to paint all day at his ranch. Gina Haspel got to be CIA director. Jay Bybee, who signed the memos authorizing torture, got to be a federal judge, just like Kavanaugh. Harvard used to tell its students, “You are the best and the brightest,” the future ruling class. I don’t know what it tells them now or how Yale greeted Kavanaugh, but the vital lesson he seems to have taken from Georgetown Prep is a corollary to Harvard’s: the ruling class makes the rules and breaks them and prospers in blameless irresponsibility.
You could be cynical about it and joke that with Kavanaugh at least there’s truth in advertising, but again the figure in pain enters to cut the laughter. Titan and CACI, multimillion-dollar private security contractors, had translators and interrogators who tortured prisoners at Abu Ghraib. They got away with it, too. Kavanaugh gave them the pass. He joined the opinion of the DC Circuit Court of Appeals that not only prevented Iraqi victims from suing the corporations in civil court but established sweeping immunity from liability for private contractors in battle arenas into the future. The language of the opinion is obtuse, antiseptic; the reader may be forgiven for forgetting what the case is about. It took Merrick Garland, in dissent, to recognize the suffering subject—the human person beaten, blinded, humiliated, strung up, shocked, raped, forced to watch his father die, extinguished. No one would be held to account. Kavanaugh washed his hands.
Now, pitying himself, he says he wants his dignity. He abdicated that long before anyone heard Christine Blasey Ford’s name.