Should Brett Kavanaugh Resign?

Should Brett Kavanaugh Resign?

Brett Kavanaugh’s confirmation to the Supreme Court has seemed to split the American polity into two warring camps: those in favor of his confirmation, and those opposed to it.

Kavanaugh’s supporters see him as a fundamentally decent man, a man whose judicial record is beyond reproach and who is almost certainly innocent of the allegations brought against him. They see the Senate Democrats’ attempt to present Kavanaugh as a frat-boy rapist as a baseless and nakedly partisan attack on his character tailored toward the end of achieving a cheap political victory. Lindsey Graham gave the most direct articulation of this view during Kavanaugh’s confirmation hearings when he irately declared that Kavanaugh’s confirmation process was an “unethical sham,” and continued with the following appeal appeal to his Republican colleagues: “if you vote ‘no,’ you’re legitimizing the most despicable thing I’ve seen in my time in politics.”

Kavanaugh’s detractors, on the other hand, see his confirmation as a failure to take sexual assault seriously. The mantra “believe survivors” has been a fairly constant aphorism here, the idea being that there is something perverse about Republicans’ failure to take Dr. Christine Blasey Ford at her word despite her apparent sincerity, and moreover, their readiness to sympathize with a powerful white man accused of rape. Cornell philosopher Kate Manne gave the name “himpathy” to this phenomenon in a New York Times op-ed. For those opposing Kavanaugh’s confirmation, the process by which Dr. Ford’s allegation of sexual assault came to public attention is irrelevant; the fact of the matter is that her allegations are credible, and if we take sexual assault seriously, then the mere credibility of the allegations should be sufficient to disqualify Kavanaugh from consideration for a seat on our nation’s highest court.

I’d submit that each of these perspectives contains a half-truth that has been mistaken for the whole story, and instead the fact of the matter is that whether the Senate chose to confirm Kavanaugh or not, a different but equally harmful precedent would have been established. In other words, Brett Kavanaugh’s confirmation hearing was an unwinnable game; no matter who had won, the country would have lost.

Kavanaugh was indeed confirmed, so I’ll start by pointing out the harm this development has already caused and is likely to continue causing. It’s no secret that Kavanaugh was highly emotional and openly partisan in his own defense following the release of sexual assault allegations against him. In an oft-quoted line, the judge angrily declared that “this whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election; fear that has been unfairly stoked about my judicial record; revenge on behalf of the Clintons; and millions of dollars in money from outside left-wing opposition groups.” I don’t begrudge Kavanaugh the right to be emotional; to be accused of the heinous crimes of which he has been accused would be sufficient to make almost anyone lose his (or her) poise. What I do begrudge Kavanaugh is the right to take out his anger publicly on one particular political party. Impartiality, or at the very least appearance thereof, is the most basic of all qualifications for a judge. Judges are supposed to interpret the law independent of partisan interests, and his willingness to enter the political fray damages his perceived judicial independence. This is, in my view, extremely likely to do damage to the legitimacy of the court. From here on out, any close ruling the outcome of which is perceived as having a conservative bent will likely be read as illegitimate if Kavanaugh casts the deciding vote. Since he now has a visible record of partisanship, and a very compelling reason to personally dislike a great swath of the Democratic Party, any ruling he makes that happens to run counter to the interests of the Democratic Party will likely be read as motivated by his dislike of Democrats rather than a genuinely impartial reading of the law. If we’re not all on the same page about the degree to which we must respect the rulings of the Court, then we are, in a very real sense, not on the same page about what is legal or illegal; the rift between competing interpretations of the law can only obtain for so long before we stop seeing ourselves as members of the same polity, the consequences of which would be nothing short of disastrous (see Fort Sumter, 1861).

On the other hand, if the Senate voted not to confirm Kavanaugh, then a similarly harmful precedent would have been established: namely, that any accusation of sexual assault against a nominee to the Supreme Court must be regarded as true a priori, regardless of the degree to which it is externally corroborated. First, let me say that I  don’t think that Dr. Ford is being dishonest. I don’t see a compelling motivation for her to lie, and by all accounts, she never intended to testify in front of the Senate at all until late in the confirmation process. However, it’s hardly debatable that her story remains uncorroborated by much supporting evidence. As special prosecutor Rachel Mitchell points out in a memo about the hearing, several key details in her account have changed over time or remain unexplained. These include: the year during which the alleged assault occurred; how Dr. Ford was able to get to and from the party at which that alleged assault occurred, given that it was too far from her house for her to have walked home; and perhaps most damningly, the witnesses she named as being at the aforementioned party, including a lifelong friend of hers, fail to corroborate her account. None of this is to cast doubt on Dr. Ford’s sincerity, which, as I’ve already stated, I don’t question. It is simply to suggest that we’re not in a position to say with certainty, or any approximation thereof, that her claim is true. If this is the standard of evidence that the Senate chooses to adopt when it comes to dealing with accusations of sexual assault against Supreme Court nominees, then the door is open for people who lack Dr. Ford’s honesty to make knowingly false allegations against nominees that nonetheless bar them from entry to the Supreme Court and forever stain their reputation. This would be tantamount to making the mere accusation of sexual assault a trump card; clearly, this is undesirable.

If I’m right, then there was no possibility of a genuine victory where the Kavanaugh hearings were concerned. Either outcome would have been disastrous in its own way. The task before us now is to determine what can be done to mitigate the already significant damage. To this end, I’d like to spend the remainder of this piece suggesting that one action stands within Brett Kavanaugh’s power that would do more than any other to serve this purpose: resign his position as a Supreme Court Justice.

I’ll start by acknowledging that what I’m asking of Kavanaugh is unfair. He’s an eminently qualified jurist, and his nomination was confirmed by a majority of senators. Having gone through a legitimate confirmation process, he has earned his position as a Supreme Court Justice. For that reason, I can’t defend the claim that he is under a strict obligation to give up his seat on the Court. However, this doesn’t mean that the country wouldn’t be well served by his resigning. The main harm caused by his confirmation—the appearance of partisanship that he brings to the Court—would be ameliorated. The Senate would have the chance to confirm a new nominee who would, presumably, maintain a more impartial, juristic demeanor during his or her confirmation hearings. Clearly, Kavanaugh’s resignation would not cure the Court of the appearance of partisanship (that problem runs much deeper than him), but it’s difficult to see how it wouldn’t reduce it, thereby reclaiming some of the Court’s legitimacy.

The obvious counter here is that if Kavanaugh resigns, the next nomination process will be just as fractious and divisive as his was. The problem, this objection would contend, is not so much Kavanaugh as it is the state of our politics in general. There is some truth to this; Kavanaugh himself is not the main reason that his hearing spun out of control. However, I’m inclined to say that the national disgrace that was his confirmation process was an unprecedented event that is unlikely to repeat itself. Given the generally despicable state of our politics, another confirmation process is likely to be filled with partisan dishonesty, ostentatious moralizing, and childish bickering, but it isn’t likely to so thoroughly attack a nominee’s reputation—fairly or not—that he cracks and publicly reveals his political allegiances. As such, I don’t see this as a compelling reason for Kavanaugh to hold onto his seat.

If Kavanaugh did indeed resign, the following confirmation process would be bitterly difficult, but things stand at the moment such that we lack the luxury of good choices; as such, all we can do is pick the best bad one. The Kavanaugh nightmare is a very concrete manifestation of the true dangers of the fatuous hyper-partisanship that has swept through our country like a plague in recent years. A functioning republic invites all citizens to view each other as partners in the common enterprise of self-governance; it is not a battleground for warring ideological tribes who see each other purely as enemies. Given that our current state of affairs closely resembles the latter description, it should worry us deeply that a republic can only endure such conditions for so long.

(Overhead photo: Associate Justice Brett Kavanaugh is sworn in. Credit: Jack Gruber, USA Today.)

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