Brett Kavanaugh and America's Sickness

Cover Image: Doug Mills/New York Times

On Tuesday, October 9, Brett M. Kavanaugh took the bench for his first day of oral arguments as Supreme Court Justice. After a confirmation battle that rocked the nation, polarizing Americans to an extent scarcely seen even in an era marred by raw partisanship, the Court carried on. The night before, Justice Kavanaugh appeared at the White House before an audience of judges, lawyers, and Trump administration officials for his swearing-in ceremony. In the front row sat all eight of his new colleagues, including Justices Ginsburg, Breyer, Sotomayor, and Kagan — all of whom were likely in uncomfortable waters at the decidedly Trumpian event. The fact that all of Justice Kavanaugh’s colleagues attended the ceremony is not so notable on its face; justices routinely attend new colleagues’ White House swearings-in. Rather, the move was a noteworthy statement of unanimity in the wake of one of the Court’s gravest public credibility crises in recent years, signaling that there may yet be hope for an impartial judiciary. Judicial collegiality aside, the Kavanaugh hearings have left the nation scarred. These are wounds that will not easily heal, and serve only to exacerbate existing divisions. The result? Further ideological extremism and brute one-upmanship reminiscent of 1930s European authoritarianism. Such dangerous tribalism destroys constitutional republics. We ought to be afraid.

The 2016 election was indeed divisive but is not a true representation of the cultural and ideological war brewing between the Left and the Right. Donald Trump and Hillary Clinton both were poor advocates for their respective sides of the conflict. Both played fast-and-loose with the truth in their climbs to the top of the political establishment, proving unreliable on many of the core issues animating the right-left divide. In short, Trump and Clinton did not play the role of ideological warrior in the 2016 election so much as classic politician bent on power. It seems that people tend to place too much emphasis on the outcomes of presidential elections. While outcomes certainly matter for shaping public policy and appointing judges to the Supreme Court, single presidential elections do not solely determine the course of public life, with the exception of elections occurring amid massive wars or economic disasters. A singular emphasis on election outcomes ignores the broader political and cultural trends underlying them. The Kavanaugh hearings have served to polarize the public around many of the issues undergirding the 2016 election in a way that the presidential candidates could not. Kavanaugh has proven to be a critical rallying point for culture warriors on all sides.

The controversy surrounding the Kavanaugh hearings has dominated public discourse for the past several weeks. Dr. Christine Blasey Ford’s accusations, now-Justice Kavanaugh’s infuriated response, and the public’s reaction to both have illustrated the extent to which conservatives and liberals differ in how they view the world. The hearings provoked not just the usual legal and intellectual responses, but a markedly emotional dimension that has radicalized political actors at all points along the political spectrum. Many people now believe that the other side is out to target and destroy good, decent people, and that the norms governing civil public discourse have eroded beyond repair. To them, all that remains is raw, unencumbered animosity that threatens to seep into all corners of life, upending relationships and tearing at the fabric of the nation.

Dr. Christine Blasey Ford’s allegations against Kavanaugh landed in two different partisan universes. Skeptical Republicans demanded unquestionable proof of Dr. Ford’s claims, and Democrats cried, “justice at last!” The notion promulgated by the left that women should automatically be believed when they accuse men of sexual assault, and that demanding solid proof before resorting to legal adjudication constitutes an implicit revictimization of the victim, turns the burden of proof on its head. Republicans largely reject this view, arguing that sexual assault, like any other crime, requires evidence and demands the presumption of innocence—the foundation of the American legal system. Republicans and Democrats view the allegations through those ideological prisms. To the Democrats, anything that called into question the veracity of Dr. Ford’s claims amounted to not believing the victim. In contrast, Republicans viewed their handling of the allegations as responsible, and the Democrats’ actions as detrimental to the rule of law. This dichotomy played out in all aspects of the Kavanaugh-Ford controversy. Calls for a prompt, public Senate hearing to investigate the allegations were either the scare tactic of a group of angry white men, or the proper means of inquiry into a serious matter, pursuant to the Senate’s advice-and-consent obligation. Dr. Ford’s demand that she and her lawyers set the terms of the investigation and hearing was seen as either a reasonable plea for respect and discretion, or a ploy to impair the scope of the investigation in hopes of concealing the truth.

Kavanaugh’s impassioned self-defense following Dr. Ford’s Senate testimony was the most controversial episode in the confirmation process. In an extended opening statement, Kavanaugh blasted what he believed to be a coordinated smear campaign against him by Democrats intent on keeping him off the Supreme Court. Seen by the left as a hyper-partisan rambling indicative of a man unfit for judicial office altogether, and by the right as an expectedly emotional repudiation of slanderous allegations, Kavanaugh’s Senate testimony left the public abuzz.

The level of vitriol provoked by Brett Kavanaugh’s Supreme Court nomination is not only unprecedented, but symptomatic of a dark new chapter in American politics. Bad-faith actors on both sides of the political spectrum have done much to corrode public discourse; that is nothing new. These days, however, even thoughtful, good-faith actors find themselves irreconcilably opposed to one another on a host of issues—evidence that political polarization is now a fundamental characteristic of American politics. That is not a sign of a healthy polity. Civil public discourse is predicated upon the notion that citizens act in good faith to further the interests of the nation. Instead, a sort of brute one-upmanship has taken hold whereby public discourse provides a forum for those who can shout the loudest, and silence the opposition with the most ferocity. The wounds opened by endless partisan battles and tribal politics do not easily heal After a controversy subsides, partisan forces immediately re-mobilize for the next fight. What Americans desperately need is a return to the norms of civility that brought the nation to its greatest heights. The Kavanaugh battle may foreshadow even more divisive episodes to come, but it doesn’t have to. It is our profound obligation to heed the warnings embedded in the partisan divisions of late. The future of the nation depends on it.