The Social Meaning of Confirming Kavanaugh is Inescapable

In some circumstances, we have no power over how our acts will be interpreted. There may be a complicated set of reasons for making a choice, but the public understanding of that choice won’t take into account such nuance or analysis. The social significance of what it would mean, especially for certain Senators, to confirm Judge Brett Kavanaugh is now set.

Most Americans will have no real opportunity to know Brett Kavanaugh other than what they witnessed in his congressional testimony. The spectacle that’s now fixed on Americans’ minds includes the nominee’s spinning out wild conspiracy theories, promising retribution, and responding with scorn and derision to fair-minded questions from members on one side of the aisle. (Recall that Kavanaugh received a similar line of questions in his Fox News interview, but did not treat that questioner with contempt.) It is that vision of Judge Kavanaugh who many of the millions of Americans who saw it will never forget even if they tried.

For closer observers, it is also an impression of Kavanaugh that resonates with what they know of a loyalist whose professional experiences include fighting in the trenches of partisan battle, and whose partisan reputation delayed his initial confirmation to the bench.

Neither an Op-Ed in the conservative Wall Street Journal, nor that interview on the right-wing Fox News can undo the impression Kavanaugh has left. The Op-ed itself is an oddly worded non-apology. The judge says he “might have been too emotional at times,” and “said a few things I should not have said,” without specifying which. He also does not specifically address his opening remarks, which he had days to think through and craft precisely how he wanted those words to sound. Regardless, no words of explanation or excuse, can erase what we saw and what the President who nominated him said about it. In one of his most widely shared tweets, Donald Trump declared to over 50 million people:

“Judge Kavanaugh showed America exactly why I nominated him. His testimony was powerful, honest, and riveting.”

“Honest.” “Showed America exactly why I nominated him.”

Many Americans would now rejoice that a judge in Trump’s image could rule from the Court. Many other Americans will forever fear how a person like that may decide cases that involve groups or interests Kavanaugh perceives as associated with “outside left-wing opposition groups.” And these Americans must now fear whatever is behind Kavanaugh’s veiled threat of “what goes around comes around.” (Notice those Kavanaugh quotes come from his prepared remarks.) In short, many Americans were horrified by the display, and others were gleeful by what they saw. That is why confirming Kavanaugh would so seriously undermine the role of the Court in our society.

The same holds true for the significance of the #MeToo movement and the Senate’s handling of a sexual assault survivor who dared to step forward. As Senator Heidi Heitkamp explained to her constituents who will now likely vote her out of office, “Our actions, right now, are an important signal to young girls and women across the country.” Exactly right. And speeches like Senator Ben Sasse’s on the #MeToo movement and his Kavanaugh vote cannot escape the grip of that historical truth. The social meaning of this vote for generations of women is inextricable.

The politically inspired limitations on the supplemental FBI investigation will now only worsen this damage if the wrong road is taken.

I say these things knowing full well that Kavanaugh may be placed on the Court, and then what I and others have described will have its own self-reinforcing effect: a blow to the public confidence in the Court and a blow to the rising up of sexual assault survivors and their supporters. But that’s the reality.

In his WSJ Op-ed, Kavanaugh got some things right. He certainly did when he wrote, “the Supreme Court must never be viewed as a partisan institution.” That’s a reason why he should have withdrawn a long time ago, and why the Senate should not now confirm him.

Photo by Win McNamee/Getty Images

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.