Why I Don’t Buy the Arguments to Vote for Kavanaugh

This afternoon, the Senate–after weeks of rancor and the bathetic hem-hawing of folks like Flake–will vote in Kavanaugh as the Ninth Justice of the current Supreme Court. I should technically say that they “likely” or “all-but-certainly” will, but precision devalues the sheer force pushing confirmation. So, unless God himself smites the Capitol Monty-Python style, hello Chief Justice Kavanaugh.

I haven’t written here in a while, though I have been meaning to, and perhaps those now-unfinished posts may make their way up here. But like many, the Kavanaugh confirmation, long-since troublesome, has consumed my thinking the past two weeks after Ford’s accusations and subsequent testimony. Considered a referendum on the #MeToo movement, the debate over Kavanaugh certainly represents a crucible-rupturing focus on gender politics in an already fraught era. It has also brought up issues of judicial impartiality and temperment, the institutional credibility of the court, and the stability of centrist and liberal provisions eked out over the past decades.

All of these are important conversations, as are the testimonies of Ford and Kavanaugh, the political background of Kavanaugh, the procedural issues of the confirmation, the veracity of his two other accusers, and many more issues. However, I mainly want to focus on the arguments of those in favor of the Kavanaugh vote, as I see them.

I want to take these at face value, though I suspect like so much in this era, they lack the sincerity of their delivery. I do this knowing that it makes no difference. Having called public servants, donated to causes, talked with friends, and gone to protests–done all in my current power, in other words–I feel that it may at-best be an intellectual exercise. Nevertheless, as a teacher and student of rhetoric, I think it’s important to look at the arguments that govern major political and policy decisions and define our country for our lifetimes and beyond.

As such, I see three main arguments, summarized and addressed below. And, yes, I am biased. I do not want Kavanaugh, but being biased does not preclude academic fairness. And frankly, I don’t think these arguments deserve that fairness, but many Americans (cough, Republicans) support him, so here we go.

Gif of woman shrugging tiredly with the phrase "Here we go" below

Argument 1: She is Lying

I want to distinguish this from the next argument: That she she may have experienced something, but is mistaken on Kavanaugh’s role. This first argument may take a more paternalistic form, that women lie regarding sexual assault, hurting other women who come forward, or it may turn to more conspiratorial claims about George Soros and Democratic smear campaigns.

This Washington Times article starts with the former, then veers to the latter. But Lindsey Graham’s impassioned speech during Kavanaugh’s “questioning” seems to hint at the latter, as did Kavanaugh’s own insinuation against the Democrats and the Clintons in his opening statement. Trump, too, questioned her veracity in his rally earlier this week.

Interestingly, these more respectable speakers (at least in terms of their ex officio roles) don’t come out and say Ford is lying. They try to sidestep the claim or dog whistle it through insinuation. While Twitter trolls and GOP base members may happily attack Ford, these other speakers favor innuendo and “paralipsis” (or apophasis, if you prefer the Greek), when you omit something directly while also implying it. They are not saying that Ford is untrustworthy or lying outright, but they insinuate that she is by pointing to the charged political atmosphere (She is Democratic operative!), her trouble recalling certain details (She can’t even remember the date!), and other conspiracies and pseudo-conspiracies to imply her dishonesty (She had polygraph training!).

Lindsey Graham angrily pointing
Image via Vox – Win McNamee/Getty Images

I want to deal with the next argument before addressing this one, as I think it’s related,  but at best, I find this argument frustrating. It either relies on dubious evidence and speculation or wages an ad hominem attack under the cover of omission.

Argument 2: Ford was assaulted, but not by Kavanaugh

A variation on the “she was wrong” argument, but with the added benefit of trying to have it both ways. Favored by Collins, seemingly Flake, and others, this may be the most popular–especially early on–with folks saying that Ford seemed “credible,” though she was possibly “mistaken. ” Ed Whelan likely had the most infamous version of this she-has-the-wrong-guy argument, insisting it was a Kavanaugh look-alike. And like the first argument, it has variations, from Collins’ and Flake’s seemingly sincere (though ineffectual) pathos to Orrin Hatch’s problematic dismissal.

I am not quite sure where to begin with this one, but I think its convenience is suspect. As Zoe Carpenter wrote for The Nation in “Susan Collins Tries to Have her #MeToo Cake and Eat it Too”:

This is a clever political trick, allowing Collins and Manchin to avoid saying explicitly that they think Ford is a liar, or that they believe her story and simply don’t care. Either of those claims would at least be honest. Instead, Collins, Manchin, and a whole host of Kavanaugh’s defenders have settled on a rationalization that is as a patronizing as it is incoherent: that Ford must be confused about the very crux of her claim, the thing she testified under oath that she was “100 percent” certain of. It’s Kavanaugh’s face she remembers, and his laughter, and his hand.

Perhaps on face value, the nuance may seem refreshing alongside the righteous fury of Graham and the demeaning dismissal of Trump, but it’s disingenuous, as Carpenter skillfully highlights: You cannot say you believe survivors and doubt the very crux of what that entails.

Furthermore, the research, both anecdotal and statistical, belie this argument. The New York Times has a great explainer on memory and trauma, but the kicker is this:

For a trauma victim, this encoding combines mortal fear and heart-racing panic with crystalline fragments of detail: the make of the gun, the color of the attacker’s eyes. The emotion is so strong that the fragments can become untethered from time and place. They may persist in memory even as other relevant details—the exact date, the conversation just before the attack, who else was in the room — fall out of reach.

In her own testimony, Ford, a researcher on the subject, made this point clear, noting the imprinting on her hippocampus from the trauma while being open and honest regarding other details. The same could not be said of Kavanaugh, who lied or at-best misrepresented his drinking habits and the definition of problematic terms from his yearbook.

This difficulty in citing other details–the exact day and place of the assault, for instance–makes the exacting and trial-driven standards for “beyond a reasonable doubt” difficult if not impossible. Indeed, these expectations one of the leading reasons that women and others do not come forward about older assaults–in addition to the emotional difficulty and stigma it brings. Simply put: the biology and psychology of trauma belie the standards that people like Collins, at least in their arguments, want.

This leads to my final argument.

Argument 3: Ford May be Right and Kavanaugh May be Unfit, but it Doesn’t Matter

I bet if I looked for explicit forms of this argument, I could find it, as the Internet is a wonderful place, but it circulates implicitly enough to me. In fact, I think that this logic is the über-argument, the cornerstone assumption of this process, and it goes something like this: Whether Ford is truthful, Kavanaugh is lying, or concerns (from a retired Conservative Chief Justice and others) about Kavanaugh are warranted–none of this matters because of higher-order concerns.

A moment of pause before we venture to the quotidian tragedy of human reasoning, and I get another cup of tea. Since it’s before 7:00 p.m., I’ll forgo the wine.

Gif of woman pulling out cork and chugging wine

More so than the rest of this post, this argument deserves its own series, as it connects to so many arguments in today’s public discourse. But I will start with this Twitter thread, as I think it starts us in the right track:

As Sivan argues, “obvious (‘common knowledge’) lies can be effective tools for proclaiming deeper truths to those who are primed to hear them. As with Trump, the deeper truth is that a particular group is treated unfairly by the establishment (recall Kavanaugh’s opening). Then, so long as the obvious lies can be framed as serving that larger truth, the liar can present himself as the group’s ‘authentic champion.'” In other words, Republicans may recognize, according to norms of truth, falsehood, and other value systems, that they hold an erroneous belief but choose to ignore that issue consciously or non-consciously in favor of other “deeper truths” because they feel persecuted.

While this may be counter-intuitive–and it is, if one has an Enlightenment of humanity–other research bares this out.

Most famously, the “backfire effect,” an extension of confirmation bias, argues that those with a false belief would rather double-down in their original belief than change it when presented information showing its falsehood. More recent research makes the mechanism of this clearer: while the new evidence may show that they are wrong, it does not change the underlying attitude, and therefore, it does not change the initial position. When one is heavily invested in a belief, other things supersede the rather abstract and increasingly squishy notion of truth.

As Bruce McComiskey in Post-Truth Rhetoric and Composition argues, “In a post-truth communication landscape, people (especially politicians) say whatever might work in a given situation, whatever might generate the desired result, without any regard to the truth value or facticity of statements” (6). Building from Harry Frankfurt’s and James Fredal’s theorizing on “bullshit,” McComiskey agrees that the main difference between a bullshitter and liar is that a liar may know that a “truth” exists, which they are breaking from, while a bullshitter does not care about one or the other. For McComiskey, a post-truth world shows that the audiences of the bullshitter may know that the speech is bullshit, but they do not care, preferring whatever the speaker says over less convenient values, like truth. Moreover, by being a known bullshitter, the speaker does not need to apologize if they get caught, unlike the liar or the politician who tries to appear truthful.

Lilliana Mason‘s work on motivated reasoning, tribalism, and political identity further underscores the competition between political groups in our current era where certain groups, like GOP voters, feel threatened. As she argues in Uncivil Disagreement:

The human inclination is to prefer and privilege members of the ingroup. The primary result of group membership is simply to hold positive feelings for the ingroup, and no positive feelings toward outsiders. Even this difference can cause discrimination, but it is not distinctly hostile. Under circumstances of perceived threat or competition, however, the preference for the ingroup can lead to outright hostility toward the outgroup, particularly when the competition is a zero-sum game.

Mason further points out that these ingroups favor winning over social good. In other words, beating the “other side” supersedes civic duty or social consciousness. Getting Kavanaugh is all that matters–that is the goal, that beats the Democrats–and since that is the primary goal, concerns like truth or fitness are secondary, if worth considering at all.

While some holders of this “deeper truth” may be sincere, if flawed–for example, Arlie Russell Hochschild in Strangers in Their Own Land uses “deep stories” to consider the Red-State paradox of voters voting against their better interest–it has arguably been weaponized to serve conservative financial elites. How Democracy Dies and It’s Worse Than You Think point out how the GOP has been especially adroit and corrosive with this weaponization, though both sides are guilty, using it to play “Constitutional hardball” to empower their party by weakening institutional norms. Yascha Mounk’s The People VS. Democracy and Patricia Roberts-Miller’s Demagoguery and Democracy take a more global and general view on this corrosion and its connection to populist, anti-institutional rhetoric, but the result is the same: weaken shared institutions to get what the ingroup wants and do so at all costs.

What “Deeper Truths” Do the GOP Hold?

Not all of these positions align, but they lead to a final question: What are the “deeper truths” leading to the GOP support of Kavanaugh? I think they come in two categories.

First, and most cynically, I think that key GOP constituents want a conservative judge, particularly evangelicals, and have worked decades for this. Why they cannot just nominate someone else may come down to pride and anxiety, not wanting to back down and “lose” or risk tanking a nominee in the face of liberal opposition. This same logic lead to Garland’s lack of consideration, other procedural issues in the confirmation, and the hypocrisy of those like Graham playing victim and screaming “witch hunt” about the accusations–as well as the “Brett Bump” and Democrat slump in polling.

Second, I think that #MeToo represents a threat and an incomprehensible challenge to conservative traditions, political and otherwise. On the one hand, it threatens the security of men (though theoretically others) who have committed dubious or abusive sexual acts, especially worrisome for the male-dominated GOP.  On the other hand, the “trial of opinion” that fuels most of these attacks seems especially scary to GOP members, as statements by Collins, Flake, Grassley, and others on “due process” highlight.

Whether this appeal to due process is sincere or a bad faith appeal to civic buzzwords is unclear, but it showcases a particular, and technically erroneous, worldview that I want to end on.

Prelude to Revolution: A Conclusion, Sorta

Picture of protestors at the Women's March holding sides defending women and attacking Trump, Capitol in the background
Image by the author of the Women’s March, 2017

I want to be clear about this. Nothing in the Fifth Amendment says that due process must apply to a confirmation hearing. Designed to avoid false convictions in criminal trials, the Fifth is not technically relevant to a judicial appointment–especially to the Supreme Court–which is more job interview than plead-for-your-life criminal proceedings. While it may be a good rule of thumb in most cases, the Fifth is clearly not designed for these instances of Ford and Kavanaugh, or #MeToo in general.

This appeal reveals an important assumption at the heart of the “due process” argument. As Matt Thompson recently wrote in The Atlantic:

To deem the confirmation process an analogue to a trial, to insist upon a “presumption of innocence” rather than a demonstration of character, is to lend weight to a system that was designed, in significant part, by men. To believe in the vaunted “rule of law” on which that interpretation rests is to lend credence to a system in which young fraternity men can be videotaped calling their own actions rape, but the woman subject to those actions can be arrested for doing the same. “We are a nation of laws and not of men,” John Adams is believed to have said. It would be nearly as accurate to say we are a nation of laws by men. And that poses a growing danger to the legitimacy of this system.

Hayden White distinguishes between Liberals and Radicals. Liberals, he argues, try to make Left-leaning or progressive change within the system; Radicals make Left-wing changes by breaking or working around the system. In my mind, the failure of past systems–whether it be in Hollywood, the workplace, or the antiquated bureaucracy of the Congressional H.R. office–have lead to #MeToo. Simply put, our institutions have not worked for women and other marginalized identities, and as attitudes changed and injustices piled up over the abused and belittled bodies of their comrades, women and others have found another way–perhaps the only way: the court of public opinion.

As Kavanaugh’s confirmation and the ensuing fallout shows, this appeal is not perfect. In fact, its efficacy remains in doubt. But without the proper institutional change, it will continue. The anger is real, palpable, and accrued over decades, if not generations, of injustice. Either the institutions bend and reform, or they break.

At this crossroads, the GOP have chosen to hide behind an antiquated and, in my mind, erroneous understanding of our legal institutions to conceal their true motives in accruing power, maintaining their constituents, and continuing a socially conservative agenda. Ironically enough, this bad faith appeal to institutional authority may wreck the very institutions that it appeals too–if such institutions are not already broken, like the Senate of the Late Roman Republic or the Estates General of the Ancien Régime in 1780s France. Only time, and scrutiny, will tell.

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