Two Ways Brett Kavanaugh Could Be a Hero

What might Brett Kavanaugh do
if he really were the man his supporters claim he is?


[The bulk of this article was written before a second accuser came forward. At this moment, it’s still not clear how her account will affect the process.]

The most insightful piece on the Kavanaugh nomination I have seen so far was written by Benjamin Wittes and appeared at The Atlantic. Wittes claims to know something about Kavanaugh.

I have known Brett Kavanaugh for a long time—in many different contexts. I am fond of him personally. I think the world of him intellectually. I don’t believe he lied in his Senate testimony. I don’t believe he’s itching to get on the Supreme Court to protect Donald Trump from Robert Mueller. I’m much less afraid of conservative judges than are many of my liberal friends. As recently as a few days ago, I was cheerfully vouching for Kavanaugh’s character.

But then Christine Blasey Ford accused Kavanaugh of attempting to rape her when she was 15 and he was 17. That allegation, Wittes says, is “credible” and “deserves to be taken seriously”. Kavanaugh’s supporters claim that there’s no good way to respond to an accusation like this and complain that the unanswerability of the charge makes it unfair. But Wittes takes that claim and goes somewhere else with it:

The circumstances in which he should fight this out are, in my view, extremely limited. I would advise him against letting Senate Republicans ram his nomination through in a fashion that will forever attach an asterisk to his service on the Supreme Court. Assuming she is not impugning him maliciously, Kavanaugh’s accuser, Christine Blasey Ford, deserves better than that. The Court deserves better than that. And Kavanaugh himself, if he is telling the truth about his conduct in high school, deserves better than to be confirmed under circumstances which tens of millions of people will regard, with good reason, as tainted.

The real burden of proof. Given how long ago the attempted rape is supposed to have happened and the haziness of the details, it shouldn’t be hard for Kavanaugh and his defenders to create reasonable doubt. But that’s not enough in this situation: It’s Kavanaugh who should bear the burden of proof.

The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

In other words: It makes sense to let ten guilty people go free rather than send one innocent person to prison. But if we’re talking about positions of high power, I would rather turn down ten innocent people than elevate one guilty one.

Of course, there’s a very real possibility that Kavanaugh might prevail simply because the Republicans have the political power to confirm him. That would get him onto the Court, but would be

a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice.

A scorched-earth campaign to impugn Blasey Ford’s credibility would leave a similar taint on the Court and on Kavanaugh’s reputation.

I would never say that no attack on Ford’s credibility could be appropriate; if Kavanaugh can produce some hypothetical emails in which she hatched the plot to bring him down, he certainly gets to use those. But an attack on Ford’s credibility that is not devastating and complete will only worsen Kavanaugh’s problem—and such an attack should worsen it.

Who pays the price? And so Wittes reaches the same point many of Kavanaugh’s defenders do: There’s no good way for him to respond to the accusation against him. But rather than rage at the injustice of that and focus their ire on Blasey Ford or Diane Feinstein or Democrats in general, Wittes calls on Kavanaugh to do what’s best for the country: withdraw.

Getting out does not mean admitting that Ford’s account of his behavior is accurate, something Kavanaugh should certainly not do if her account is not accurate. It means only acknowledging that there is no way to defend against it in a fashion that is both persuasive and honorable in the context of seeking elevation to a job that requires a certain moral viability. It means acknowledging that whatever the truth may be, Kavanaugh cannot carry his burden of proof given the constraints upon him.

It means accepting that it is better to continue serving as a D.C. Circuit judge than to play the sort of undignified games that Republicans are playing on his behalf.

There would be heroism in that path. I am reminded of the ending of Lev Grossman’s The Magician King, when Quentin gets banished from the magical kingdom he has just saved. “I am the hero,” he protests, “and the hero gets the reward.”

But Ember, the god who is banishing him, disagrees: “No, Quentin. The hero pays the price.”

If his Republican support in the Senate holds firm, Kavanaugh can get the reward of a seat on the Supreme Court. But there is a price to be paid in this situation, and if Kavanaugh doesn’t pay it the nation does, in the form of a diminished Supreme Court whose moral authority will always be questionable when it rules on issues of women’s and victims’ rights. There’s nothing heroic about that.

The second heroic path. Wittes argues that Kavanaugh should withdraw even if he is innocent. But there is a second heroic path available if he is guilty, or if he honestly doesn’t remember Blasey Ford or anything about the night in question: Tell the truth.

Many of Kavanaugh’s supporters have been skipping past his denials and arguing for forgiveness: He’s not the same man today that he was at 17. What he did then shouldn’t disqualify him.

That, I think, is a discussion the nation needs to have: What is forgivable? How long should a youthful mistake hang over someone who has lived an admirable life since? How admirable does that life need to be? Does some other kind of restitution need to be made?

But if we were to have that discussion, it shouldn’t just apply to Kavanaugh, or to people on one side or the other of the partisan divide. It should apply, for example, to immigrants who are deportable for something they did decades ago, but have done good work, lived good lives, and been a credit to their communities in the years since. It should apply to people serving long prison sentences for non-violent drug crimes, some of which were committed when they were not much older than Kavanaugh was. You can’t expect forgiveness for the people on your side while you apply eye-for-eye justice to those you disagree with or disapprove of.

Even if we want to have that discussion, though, we can’t as long as Kavanaugh insists on his complete innocence. It’s unreasonable to expect to reap the benefits of forgiveness while simultaneously painting your accusers as liars. (That principle would also apply to President Trump.)

Imagine if Kavanaugh went before the Senate Judiciary Committee and told the nation, “Here’s how I remember that night.” What if he told his story without lawyerly caveats, but just as a human being trying to get a difficult memory off his chest? Or maybe he could say, “I don’t remember the event Dr. Blasey Ford describes. But I went to a hard-drinking school, and things may have happened that I don’t remember. I feel terrible that she has had to carry such a memory all these years, and I am ashamed to think that I could have been the cause of it.”

After all the Bill Cosbys and Harvey Weinsteins we have seen, what a breath of fresh air that would be.

Who shoulders the risk? If Kavanaugh did throw himself on the nation’s mercy, what would happen then? I don’t think anyone knows. And that’s what makes the path heroic: Heroes take risks; they don’t push risks off on others. Blasey Ford took a risk by coming forward, and she has been paying for that decision. Kavanaugh could take much of that burden off of her. It wouldn’t make sense to threaten or abuse her any more, if Kavanaugh himself were taking her account seriously.

Instead, he would shoulder the risk of public judgment. Blasey Ford, the Senate, and the country as a whole would have to face squarely the issues of forgiveness and the passage of time, rather than consider them only as a Plan B for those who doubt Kavanaugh’s denials. That honest public debate would be a step in the direction of healing the wounds that the #MeToo movement has revealed. However it came out — whether Kavanaugh ascended to the Supreme Court, remained where he is, or left public life entirely — it would be a service to the nation.

We keep hearing from Republicans, Evangelicals, and Kavanaugh’s other defenders what a fine man he is. He has a chance to prove them right. But you don’t get to be a hero just by claiming the reward. You have to pay the price.

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Comments

  • AJ  On September 24, 2018 at 9:12 am

    Thank you for an extremely well written piece. The hero has to pay the price.

  • Dr. Lori Flanagan  On September 24, 2018 at 9:14 am

    All of this sidesteps he has lied to Congress under oath

  • Sally Willson  On September 24, 2018 at 9:50 am

    Thank you. This is the most thoughtful article I have read about this situation.

  • joeirvin  On September 24, 2018 at 9:55 am

    The Supreme Court lost most of its credibility in 2000 when it appointed a president.

  • ecmaxflex  On September 24, 2018 at 10:06 am

    Well it all has the ring of trying to make something true by saying it —and in this case over and over again as if honor integrity decency has ANYTHING to do with this nomination if you keep saying it.

    Sent from my iPhone

    >

    • weeklysift  On September 24, 2018 at 12:47 pm

      I wrote this with no expectation that Kavanaugh will actually take either path. If he withdraws, I expect it will only be after it becomes clear that his nomination is doomed.

      But if people are going to keep describing him as a man of high character, I think it’s important to put out there what a man of genuinely high character would do.

      • Dale Moses  On September 25, 2018 at 1:29 am

        A man of truely high character would defend himself from such allegations. To not would be to set the example that you could lie and impeach the character of a person without proof in order to attain policy goals. Unless they did it, then it would be the right thing to step aside

  • Raymond Horton  On September 24, 2018 at 10:16 am

    Excellent!

    ​Raymond Horton Composer, Arranger Minister of Music, Edwardsville (IN) United Methodist Church Retired Bass Trombonist, Louisville Orchestra, 1971-2016 Visit us at rayhortonmusic.com

  • Creigh Gordon  On September 24, 2018 at 11:14 am

    At this point, taking one of these two paths might be the only way for Kavanaugh to save his position on the DC Circuit, which I think is in grave danger.

  • Wm. GIlboe  On September 24, 2018 at 12:15 pm

    Kavanaugh is no hero and will be no hero. To believe so is to totally misunderstand who has been and who he is now. Read the history of his appointment to his current role.

    • weeklysift  On September 24, 2018 at 12:47 pm

      As I said in reply to an earlier comment: I don’t expect him to take either heroic path.

  • sharonup  On September 24, 2018 at 12:37 pm

    it’s really to overstate the damage that McConnell’s treatment of Merrick Garland did to the Supreme Court’s stability and respect. Brett will be forever tainted (and appropriately so) like Thomas if they ram him through. Let’s hope that Brett has more honor than he has heretofore shown.

  • George Washington, Jr.  On September 24, 2018 at 12:46 pm

    Outstanding piece, although I don’t see it convincing a Kavanaugh supporter who is convinced that Ford is lying or even part of some tinfoil-hat conspiracy to keep abortion legal because she is connected to a company that markets an off-label use for RU-486. And it certainly won’t convince anyone who thinks a 17 year old, especially an affluent white one, shouldn’t be held accountable for their actions.

    One unintended effect of Ford’s allegations is to focus Kavanaugh’s confirmation solely on whether he assaulted her or not. Forgotten is the possibility that he perjured himself, or worse, is involved in some quid pro quo with the unknown people who paid off his substantial gambling debts.

  • Dale Moses  On September 24, 2018 at 4:26 pm

    There are a couple of big problems in this piece. The burden of proof is not on Kavanaugh. It cannot be if we want to have a Society in which those acting in bad faith are not able to derail honest candidates.

    Rather the burden of proof should be lesser than a court standard. And this case meets that lower burden even if it doesnt meet the higher standard to imprision someone.

    Republicans would be happy with the first standard since they won’t bother to abide by it. But democrats arent so lucky, our voters care about things like logic and honesty*.

    So we cannot let ourselves be fooled by people saying that Kavanaugh should resign without proving his innocence even if he is. Its a fig leaf over a policy of “please let us stop you from doing anything”. Kavanaugh should be withdrawn because the evidence suggests he is a perjuring rapist.

    *see your conservative to English lexicon for examples of how Republicans might use those words. And for more backing evidence of why such a policy would be bad.

  • Chris  On September 24, 2018 at 6:29 pm

    If the rule were to become that if you’re accused of sexual assault, your only options are to withdraw, admit you did it, admit you may have been so drunk that you don’t know if you did it, or somehow prove the accuser is lying, then what would happen the next time a Democratic President tries nominating a judge who actually is a good person and someone? Doug, do you think it’s unlikely that anyone would come out with a false accusation of assault against them (where it wasn’t easy to prove it was a false accusation)?

    • George Washington, Jr.  On September 24, 2018 at 7:11 pm

      It’s indisputable that a major component of Kavanaugh’s high school and college experience involved heavy drinking. That makes it more plausible that he may have done what he’s accused of than if, say, those same accusations were leveled against Mike Pence, who reportedly won’t even allow himself to be alone in the same room with any woman other than his wife. And remarks like “what happens in Georgetown stays in Georgetown” don’t help his case.

      Has Kavanaugh expressed any regret for his past behavior? It’s not a problem if he still looks back fondly on it; I never sexually assaulted anyone, but I probably would have given him a run for his money in the amount of drinking and drug use I enjoyed in college. But I wasn’t nominated for the Supreme Court. A judge, especially a Supreme Court justice, should be irreproachable. Kavanaugh needs to come clean about his past, and his failure to do so tells us that he really doesn’t care what we think or what kind of example he is modeling. That level of arrogance alone should disqualify him, as he’s clearly incapable of making the kind of life and death decisions that will face him, with any sort of empathy or understanding of the lives of people unlike himself.

  • Linda Buechting  On September 28, 2018 at 12:53 pm

    I’m posting this well after the piece was written, but after watching Kavanaugh testify in the hearing yesterday, I’m left with the impression that he’s an alcoholic who is still drinking. His belligerence, furious outbursts, raw emotion, claims of victimization, paranoia, and laying the blame for his problems on enemies are classic signs. The most heroic thing he could do is to get help for himself.

    • AJ  On October 1, 2018 at 1:39 pm

      Not sure I agree with the diagnosis, but the symptoms would fit. The only way I could find him as telling the truth is if he confessed to drinking lots and to possible blackouts (not fall down blackouts, but memory loss blackouts). More witnesses appear to be saying he drank a lot and he was belligerent. If your diagnosis is valid, his refusal to own his drinking to excess would definitely fit.

      • Linda Buechting  On October 1, 2018 at 1:46 pm

        I’m not qualified to diagnose him, but I’ve known one or two alcoholics, and their behavior was eerily similar. A lot of times alcoholics have contempt for the opposite sex and blame them for their problems. Kavanaugh certainly showed contempt for the female senators.

  • wcroth55  On October 3, 2018 at 3:43 pm

    The folksinger John McCutcheon has a great song about lies & deflections in politics, “Not Me!’, which can be heard at https://www.youtube.com/watch?v=5QduPPo2hL4 – I cannot recommend it highly enough. (And I know Doug occasionally bursts out into verse and song, so it seemed relevant!)

    Current events in the Kavanaugh case grabbed me by the throat and made me write this additional verse (released into the public domain):

    If you want to settle torts / on the nation’s highest court
    And be seated there with honor and respect
    Better be a sober judge / Don’t lie, don’t fudge
    Or you might get something more than you expect

    But if you tend to blackouts / and unconsenting makeouts
    You may find your worser days are on full view
    No matter who’s the Pres / Or what the Senate says
    You’re just another perp uncovered by #MeToo!

Trackbacks

  • By Voiceless | The Weekly Sift on September 24, 2018 at 12:02 pm

    […] week’s featured post is “Two Ways Brett Kavanaugh Could Be a Hero“. That sounds crazy, but here’s the basic idea: In a difficult situation, the hero is […]

  • By The Real Voter Fraud | The Weekly Sift on October 22, 2018 at 12:14 pm

    […] few weeks ago in “Two Ways Brett Kavanaugh Could Be a Hero“, I indulged in a fantasy where Kavanaugh confessed and apologized — or at the very […]

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