The prospect that Brett Kavanaugh might not be confirmed to the Supreme Court has driven conservatives into a fit of paranoia about what the failure of his nomination would mean.
The most common refrain on the right is that liberals have imperiled Kavanaugh’s nomination with unprovable accusations of sexual misconduct and that this is part of a trend that will ultimately make it impossible for men to climb professional ladders in life.
Muscling Kavanaugh on to the Court, in this telling, is the central battle in a larger fight to preserve male liberty. One lawyer “close to the White House” told Politico last week that Kavanaugh’s supporters closed ranks around him after the first assault allegation, because “if somebody can be brought down by accusations like this, then you, me, every man certainly should be worried.”
Belying this argument is that each of the three most recently confirmed male Supreme Court justices were confirmed without once being accused of sexual assault, including Neil Gorsuch, who literally went to the same high school as Kavannaugh, yet reached the Court with a handful of Democratic votes.
A related and prevalent line of argument construes liberal opposition to Kavanaugh as part of liberalism’s escalating antipathy to conservatism, which has supposedly gotten so out of hand that liberals simply assume conservatives are more prone to sex crimes than liberals. As with the view that liberals are falsely and opportunistically accusing male professional climbers of sex crimes, this is based on a paranoid misreading of plain facts.
The truth of the matter is that if Kavanaugh’s nomination fails, it will be a setback not for the cause of justice for anyone, but for the bad faith style of politics that defines American conservatism.
The bogeywoman who supposedly gave away the left’s slanderous reasoning is Sen. Mazie Hirono (D-HI). Asked this weekend whether Kavanaugh should enjoy the presumption of innocence, Hirono explained why, in a credibility contest between Kavanaugh and Dr. Christine Blasey Ford—his first and at that point only accuser—she believes Ford.
“I put his denial in the context of everything that I know about him in terms of how he approaches his cases,” she said. “As I said, his credibility is already very questionable in my mind and in the minds of a lot of my fellow Judiciary Committee members, the Democrats. So he comes, and—when I say that he’s very outcome-driven, he has an ideological agenda, is very outcome-driven. And I can sit here and talk to you about some of the cases that exemplifies his, in my view, inability to be fair in the cases that come before him. This is a person that is going to be sitting on our Supreme Court, making decisions that will impact women’s reproductive choice. He has a—he very much is against women’s reproductive choice. And I can tell you two very important cases in which he applied the same standard, but came to totally different results to make it much harder for women to get this kind of coverage. So there’s—there are so many indications of his own lack of credibility. And I put that in a context.”
Nearly to a person, conservatives interpreted Hirono to be arguing that she doesn’t believe Kavanaugh, because Kavanaugh is pro-life and thus inherently less trustworthy than his accuser—if not prone to commit assault.
National Review’s Charles Cooke called it an “extraordinary answer.” New York Post opinion editor Seth Mandel summarized Hirono as saying, “well he’s no different from any other conservative, they’re all rapey by design.”
This is not the point Hirono was making—at all.
The key line in Hirono’s answer came near the end, when she referred to “two very important cases in which [Kavanaugh] applied the same standard, but came to totally different results to make it much harder for women to get” reproductive health coverage.
Kavanaugh has gone to great lengths to obscure his views on abortion and women’s reproductive rights more generally. Sen. Susan Collins (R-ME) claims to be convinced, after a lengthy charm offensive, that Kavanaugh would not vote to overturn Roe v. Wade. Hirono’s actual point is that this is bullshit, that it’s obviously bullshit, and that Kavanaugh’s concerted efforts to deceive people as to his true objectives in judging give him more general credibility problems.
Given more time and greater length to take issue with Hirono, conservative Washington Post columnist Michael Gerson came closer to interpreting Hirono correctly, but still could not see past her invocation of women’s rights to a more general view that someone who will lie and dissemble to advance his professional and ideological goals isn’t trustworthy. “Conservatives who talk about judicial restraint are really seeking the outcome of making abortion illegal,” he wrote, allowing that “This is a form of deception.” But instead of ending the argument there, he tacked on unnecessary motivations Hirono might have for not trusting Kavanaugh: “And because violating the autonomy of women (in this argument) is inherently misogynistic, therefore Kavanaugh is naturally an anti-woman liar.”
This is superfluous and muddled. It’s not that Kavanaugh is in a narrow sense an anti-woman liar. It’s that he is a liar, and thus not trustworthy, whether its his word against Dr. Ford’s or anyone else’s.
Hirono noted that there are “many indications of his own lack of credibility,” which is, if anything, an understatement.
Kavanaugh introduced himself to the country by buttering up President Trump with nonsense. “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” he said.
He has serially misled the Senate, not just since Trump nominated him, but since the mid 2000s, and not just about women’s issues, but about the judges he helped confirm as a Bush White House lawyer, the stolen Democratic emails he received in that same job, and his involvement in the Bush-era torture and warrantless wiretapping scandals. On Monday night, he claimed that a well-documented incident in which he and his friends pretended, through use of coded language, to have had sexual relations with the same girl from a different high school, was actually a sign of respect for that girl. He claims to have been totally unaware that his former boss, former Judge Alex Kozinski, was a notorious sexual harasser who sent sexually charged emails to clerks, and when asked to check his old emails to corroborate his story, he simply repeated that he was unaware of Kozinski’s reputation.
In this way Kavanaugh no different than Republicans who claim to support pre-existing conditions protections when they’re running for office, while using their official powers to eliminate them. Deceiving the public about the conservative agenda is central to the strategy nearly all Republicans use to obtain power. And there’s no reason to interpret Kavanaugh’s sexual assault denials as somehow distinct from that larger trend.
It is theoretically possible that Kavanaugh was deceptive about his professional history, and is nevertheless telling the truth about the sexual assault allegations. Hirono’s only point is that theoretically possible is not the same thing as likely. If Kavanaugh withdraws from consideration, or the Senate votes him down, it won’t be a blow to conservatism or male ambition, it will be a blow—a much-needed one—against impunity for sexual assaulters, and the bad-faith ways Kavanaugh, and many other Republicans, seek and exert power.