The best take on the Kavanaugh mess I’ve seen to date.
By Avens O’Brien
I haven’t commented much on the whole Kavanaugh issue. I have so many thoughts, and they aren’t perfectly organized or suitable for an article. I wrote this rant out last night while really exhausted, I made minor edits this afternoon and I’m just posting it, because it’s burning a hole in my mind and I’m actually like… angry/sad/disappointed, which isn’t very common for me. And yeah, I’m bothered by his confirmation, but more so about the entire process. About how we got here.
It appears that Brett Kavanaugh is our newest Supreme Court justice. This is a shame.
It’s a shame because he’s absolutely terrible on the 4th amendment – the one that protects against unlawful search and seizure – and privacy. For those who don’t know why that’s a big deal – in a time when the majority of our communication is electronic and the government is surveillance-happy, this should concern all of us. If you’ve been critical of police behavior, stop & frisk, civil asset forfeiture, the PATRIOT Act, drug laws or government spying on you – the 4th amendment is tremendously relevant to your interests.
Brett Kavanaugh is also terrible on executive accountability. On one hand, in 1995, while working for Ken Starr, Kavanaugh happily supported requiring then-President Bill Clinton to testify while in office, but later, when working for then-President George W. Bush, Kavanaugh commented on the SCOTUS decision on Nixon (re: Watergate tapes that led to his resignation) saying the decision “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.” Not only does he suggest that the executive branch not be held accountable, but the blatant partisanship of holding Clinton accountable but defending executive privilege for Bush should give anyone pause.
For more reasons why Kavanaugh is terrible from a Constitutional perspective, go read my friend Brittany Hunter’s article on the topic: https://fee.org/…/the-constitutional-reasons-to-oppose-kav…/
The point is, it’s a shame because of his record on the Constitution.
It’s also a shame because of the political circus that has been the past few months, which means a vote for or against him holds very different meanings depending on your political perspective – and to many people, they do not seem to understand the other perspectives at all.
To many on the left side of the political spectrum, the confirmation of Kavanaugh is tacit approval of rape.
To many on the right, rejecting him would be submission to political theatre and possibly false allegations.
Both of them are wrong as far as I’m concerned, but they certainly believe what they believe.
I subscribe to basically ALL the partisan newsletters. Both Democrats and Republicans send me “WE HAVE TO STOP THE OTHER SIDE” emails begging for donations and giving me their heavily biased takes on the daily news. So I see a lot of commentary on SCOTUS that is designed specifically to rile up the bases.
At no point in all of this, have I received worried emails from Democratic organizations concerned about his actual record on shit like the 4th amendment. I did get a lot about Roe v Wade for a while. “The end of Roe”. “The end of gay marriage”. These were the things that filled my inbox, until Dr. Ford’s allegations (and others) came to light.
And as a pro-choice bisexual female, I want to keep abortion and gay marriage legal, so it’s not like I don’t care about those things. But those issues don’t convince Republicans to vote against their party’s nominee and they have the numbers (could we try like… a LITTLE strategy, anyone!?).
Justin Amash, a Republican Congressman (unable to vote on this) has been an outspoken opponent of Kavanaugh, speaking to issues that civil libertarians on both the left and the right might give a damn about.
Instead, the Democrats started by focusing on Roe and when that didn’t move the needle, they publicized allegations of sexual misconduct – they brought them forth at the 11th hour (which was a mess in and of itself but I’m moving on), and I’m not sure who they think they convinced. The left already thought he was the devil. The right just dug their heels in thinking it was a smear campaign.
I’m pretty sure I believe that Dr. Ford believes she was sexually assaulted by Brett Kavanaugh. Does that mean I have enough evidence to prove it? Of course not – and this wasn’t a criminal trial. He doesn’t go to prison regardless of what we believe. Is there a possibility that she could be misremembering something? I guess so? I don’t know.
I. Don’t. Know.
I’m pretty sure Kavanaugh was genuinely shocked to be accused of it – whether because he never did it or because he blocked it out or because he literally BLACKED OUT when it happened, I’ll never know.
I’ll. Never. Know.
But there’s a few things that both sides seem unwilling to admit about their own side:
First, for Democrats —
Yes, false rape allegations are not common. However, “why would she put herself through this!?” doesn’t really hold water to me when the last several months my email inbox has treated this as THE END OF THE WORLD and certainly the END OF ROE.
What wouldn’t most of us pro-choicers be willing to do in order to ensure our right to abortion is secure?
There are people out there (and they may be fringe, but they exist) who would APPLAUD any person who went so far as to lie in order to keep Roe v Wade in place. To many people, this confirmation determines the future for women or for gays or for many other people, and if you don’t think SOME of those activists are willing to stoop to violence or lies, you don’t understand how important these issues are to these people.
We already know there are pro-lifers who murder abortion doctors because they believe so truly that they are right. How is it hard to recognize that there might be pro-choicers who are willing to lie for what they see as righteous cause?
I have NO IDEA if Dr. Ford is lying, and though my instincts tell me she’s not, I also could see a *very obvious* reason why she would.
Because sacrificing oneself for the reproductive freedom of women in this country WOULD BE an incredible act to those who believe THIS IS IT. That these are the stakes. Why wouldn’t someone who cares that deeply and believes this is the day of reckoning, and have some connection to this guy – why wouldn’t they do it, and see themselves as a hero for doing so? She’s certainly a hero to many for having stood up and spoken out – and those people assume she’s telling the truth because the truth matches what they think.
And we have no idea. We will never know the truth.
Secondly, to Republicans —
If Brett Kavanaugh is innocent of everything that was claimed — I don’t blame him for being upset about the allegations.
But for those who support him – you must understand the pause it gives the rest of us to see that anger, the partisan attacks on the left, the implications that this will have political consequences (or that he might be the one doling them out). His behavior in his testimony did not show a measured man who can put his personal feelings aside. “Law is reason free from passion” as Aristotle said. Maybe he shouldn’t have to, if he is innocent of the terrible things he is accused of, but I expect more of a lifetime appointment on the Supreme Court.
Further, for those of you who don’t know: crying and rage are ALSO frequent weapons of abusers – many people have found themselves harmed by a partner and then suddenly the abuser is the one crying and manipulating the victim that somehow this was the victim’s fault, that the abuser doesn’t want to be angry (“look what you made me do!”).
This is a reality that means some of us don’t see his tears or his rage as evidence of his innocence.
He could also be guilty while BELIEVING he’s innocent – several people have said he drank enough in high school and college that they’re shocked he’s claiming he never blacked out.
And none of us have any idea. We don’t. You don’t. I don’t. We have no idea.
The things I do know are the points made in various publications about actual lies he told during his testimony. About the meanings of words, or his drinking habits, or his legacy at Yale. If lying about a consensual blowjob was enough to perjure Clinton and impeach him, I don’t see how Kavanaugh gets a pass here – even if he’s entirely innocent of the allegations of sexual assault – there were other assertions made that appear to have been lies.
But regarding the allegations – we can’t know. We will never know.
And if we do the wrong thing –
if we condemn an innocent man
confirm a guilty one
there’s a profound harm to justice.
And we cannot know the truth, so for those who decide that this confirmation is about whether or not this man is a sexual predator, there is potential for enormous lasting harm all around.
By making his confirmation about whether or not he’s a sexual predator, we further polarize people —
Those who believe he’s innocent feel the need to confirm him to show their faith in his innocence and their opposition to this perceived political circus. They will see a vote against him as some bloodthirsty vendetta against patriarchy or men.
Those who believe he’s guilty feel the need to deny his confirmation to show they are hard on sexual crime and that justice must be served. They will see a vote for him as a slap in the face to rape victims, and further proof of patriarchy and injustice.
In the meantime, he’s going to be a terrible justice REGARDLESS of whether or not he’s a sexual predator, because he’s awful on the 4th amendment and a whole lot of other areas of constitutional concern.
I never get angry, but I think I’m pissed about this.
I’m mad at Republicans for not advising this man to write an eloquent defense of himself and then ALSO withdraw himself from nomination so they could choose someone else and clean up the mess – stop making this about him or the allegations against him. They should have done that.
I’m mad at Democrats for making his confirmation singularly about this issue. It’s killing me – they keep losing here (a man who said “grab ’em by the pussy” got elected president, remember?) and they’re making *all of us* the losers further by equating every single political dispute with sexual and social justice wars.
Now a whole lot of people have been told that if Brett Kavanaugh is confirmed, it proves that the Republicans are rape apologists and it gives further license and tacit approval for sexual misconduct. That’s what I keep reading – that if people have the audacity to vote to confirm him, they’re saying “fuck rape victims”.
But believing he could possibly be innocent shouldn’t mean “fuck rape victims”, particularly because this a high-profile case where as I mentioned above, regardless of whether or not she’s really lying, people CAN see why she would, if she did (and the other side seems completely ignorant of that fact).
There are A LOT of people in this world who think false rape allegations are more common than statistics show. It doesn’t matter if they’re wrong, it matters how they think about this in order to understand the actual reason WHY they would choose to vote this way.
This huge disconnect where each side assumes what the other side means by a vote (“voting for Trump means they’re racist” or “voting for Hillary means they’re politically correct pansies”) is not only inaccurate but it’s profoundly hurting our ability to communicate with people we disagree with, and it’s fucking exhausting. It means people think being friends with someone you disagree with means approving of what they believe. The bubbles are getting smaller. Most of all, it’s NOT MAKING THINGS BETTER. It’s making them worse.
WE KNOW SO FUCKING LITTLE and we operate on enormous assumptions about other people and we have to admit it’s possible we could be wrong, and that ruining someone’s life — either by confirming their attacker to the Supreme Court or by smearing an innocent man’s reputation in front of his family, children, colleagues and the world — IF WE GET THIS WRONG either of these is HORRIBLE. Either of these is a profound injustice.
To some, Dr. Ford is a savior and a hero who is speaking up for all victims. To others she’s a liar and a fraud.
To some, Kavanaugh is a good innocent man who is being victimized. To others he’s a sexual predator and a liar.
I’ve always been the eternal optimist, and I can’t see a fucking silver lining in this cloud.
It’s all fucked up and there’s no win here. There’s no happy ending.
A guy who has a record of contempt for the 4th amendment is our newest SCOTUS justice, and it feels like the only thing that matters to anyone else seems to be whether or not they think he’s guilty of sexual assault.
It equates opinions about sexual assault with political ideology, and that theme of conflating issues across the spectrum is destroying our ability to talk about them in a reasonable, civil manner or make any progress at all.
There’s got to be a better way to do this. But I don’t have any faith in Republicans or Democrats to be better than this. I just wish more people could see this entire thing for the horrible scum it is. Because it is scum, and it’s disheartening, and I can’t even write something succinct or non-tangential no matter how I tried. I just had to let it all flow out, and hope any of it makes sense to anyone.