Let us fully dispense with the polite fiction that last week’s Senate hearings on the confirmation of Brett Kavanaugh were intended to bring us closer to a common understanding of the truth. This entire affair is not about truth, but about power—who will wield it, and at whose expense.
The spectacle of these hearings called to mind an allegation of sexual assault from years ago, and its aftermath. One evening in February 1999, a young woman was hired to perform exotic dancing at a fraternity party at the University of Florida. The next morning, she fled to a neighboring fraternity, calling the campus police to report that she had been raped. When the police came to investigate, they discovered that the evening’s proceedings had been documented in their entirety on videotape. Nearly every moment of the alleged sexual assault was captured on those tapes in excruciating and intimate detail. When the police saw the tapes, they declined to arrest the two young men who had been accused of sexual assault. Instead, they charged the woman with falsely reporting a crime.
Because these events transpired in Florida, where public-records laws gave citizens an extraordinary degree of access to evidence in criminal proceedings, the videotapes of that evening became publicly available when the police brought their charges. With the young woman’s permission, a pair of budding filmmakers used the tape as the spine of a documentary titled Raw Deal: A Question of Consent, interlacing the raw footage of how the evening progressed with interviews with several of the individuals involved, as well as experts on sexual assault.
I watched that documentary at a Florida film-festival screening, back in the early 2000s. I have never forgotten it. The film culminates in a graphic, unsparing depiction of a sexual encounter between the woman and the two fraternity brothers. The moment the woman described as a sexual assault unfolded before the eyes of a shocked audience. And after the film concluded, one of the directors, Billy Corben, went up to the front of the room to take questions from viewers.
The first audience member to stand and speak was a man, audibly enraged, his voice quavering. I don’t remember his exact words, but I won’t forget what he asked: How could you? he spat at the director. How could you take an encounter that was so clearly not a sexual assault and use it to tarnish the good name of these young men at the start of their adulthood?
The second to speak was a woman, equally disturbed, but in a different direction. What we saw in that film was so clearly rape, she said, through gritted teeth. Under what inhuman pretext could anyone call it something else?
I had never seen a wider chasm between two humans processing the same reality. The man who stood up—and, evidently, the campus police—thought he’d witnessed a bout of drunken, consensual play between adults. “Never once did no, help, stop—any of those words—come out of her mouth,” says one of the fraternity brothers in the film. “If I would have ever thought that she was in danger at any point in time, I would never let him do something like that.” And yet, to live in that reality, he had to dismiss the moment in the footage when the gleeful fraternity brother recording the proceedings, his laughter indelible in the hippocampus, calls it a night in Delta Chi history—“the night we rape a white-trash crackhead bitch.”
All of us in the audience had seen the same documentary. The facts of what happened that night in Florida were not in dispute. We were beyond questions of innocence or guilt, consent or coercion. The chasm between us concerned only power and authority. Whose interpretation of these facts would be given deference, and whose would be dismissed? For whose reputation would we demand protection? For whose violations would we demand redress?
The lesson of that experience was, for me, the lesson of the past week’s Senate hearings. If footage of what had transpired between Brett Kavanaugh and Christine Blasey Ford years ago was projected in front of the Senate chambers for all the world to see, it’s hard for me to imagine we’d be in a different place than we are. Even the prospect of a week-long FBI investigation, a precondition apparently demanded by Senator Jeff Flake for his vote to move Kavanaugh’s nomination out of committee, is unlikely to deliver anything plainer or more final than the videotapes that left those two audience members in different worlds, quaking at inverse injustices. What’s at issue here has never been truth. Far keener observers than I have pointed out the many ways in which this Senate process could have been altered to secure a fuller investigation of the facts.
To say this is not to discount the abiding importance of the truth; a free society must hold reality sacrosanct. It is merely to acknowledge that truth, in itself, is not power, and that the battle for the latter long ago eclipsed the pursuit of the former.
The “credibility” of each individual in the hearings, largely a matter of performance rather than fact, has been lightly discussed and set aside. Instead, the testimony from each—Ford’s composure amid evident pain, Kavanaugh’s anguish and fury—has been judged by how “powerful” it was, its capacity to move audiences in one direction or another. There has been a jockeying between the parties even to define the nature and purpose of this process. Is it, as Senator Dianne Feinstein and other Democrats have styled it, a “job interview”? Or is it, as Senator Chuck Grassley and other Republicans would have it, a quasi-judicial exercise of due process?
To deem the confirmation process an analogue to a trial, to insist on 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.
The all-male body of Republicans leading the Senate Judiciary Committee was attuned enough to the paper-thin foundation of their credibility that they asked a female prosecutor to lead the questioning on Thursday. But after Brett Kavanaugh demonstrated his willingness to wield power, to bark derisively at Senator Amy Klobuchar, the woman who was questioning him, the men on the committee grew more confident in their own. “Boy, you all want power,” seethed Senator Lindsey Graham, reclaiming his time. “God, I hope you never get it.”
“A conservatism ... organized around the fears and grievances of prominent men, and seemingly indifferent to the legitimacy of certain kinds of female anger—will end up defining all its constituent parts, all its causes and concerns, as subordinate to the defense of male impunity,” wrote Ross Douthat in The New York Times. “If [Kavanaugh’s] accuser testifies publicly and credibly, if her allegation isn’t undermined by a week of scrutiny and testimony, if it remains unprovable but squarely in the realm of plausibility, then all the abortion opponents who were supporting him should hope that his nomination is withdrawn—with, ideally, a woman nominated in his place.”
The last time a Republican president nominated a woman to the Supreme Court—when President George W. Bush nominated Harriet Miers—she did not make it to the confirmation hearing. At the time, in addition to being perceived as the president’s crony, Miers was deemed not to have the qualifications for the Court—the right prep-school diploma, the right law-school degree, the years of grooming and cultivation given to Brett Kavanaugh. “The wisdom of presumptive opposition to Miers’s confirmation,” wrote George Will in The Washington Post, “flows from the fact that constitutional reasoning is a talent—a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer’s career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.”
Will derided the notion that Miers’s gender had been a hindrance to her advancement. “Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official,” he wrote. “Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences.”
No outraged speeches were uttered on the Senate floor about the preciousness of Miers’s reputation. It was not scandalous claims of sexual assault that precipitated the end of her candidacy. Instead, it was the barest hint in a decade-old speech that Miers was not sufficiently hostile to Roe v. Wade. “Concern among conservatives over Ms. Miers’s views on abortion and judicial philosophy heightened on Wednesday,” wrote David Stout and Timothy Williams in a New York Times story on her withdrawal, “when The Washington Post reported that Ms. Miers, in a 1993 speech in Dallas, spoke approvingly about a trend toward ‘self-determination’ in resolving debates about law and religion, including those involving abortion rights.”
In a nation with a calcified legislature and an executive more given to grandstanding than to governing, the Supreme Court—teetering as it is on an ever-sharper knife edge of bifurcated ideological interests—has become the ultimate prize. Once the Court is restored to its full power with the confirmation of a ninth justice, its ability to shape the future of the nation is likely to be as great as at any other time in its history. “No single government official outside the president should be so important that his or her replacement could shift the course and destiny of the nation,” the Heritage Foundation’s Kim Holmes has written. “And yet that is precisely the case with finding a replacement for [Justice Antonin] Scalia. No matter which way it goes, the next Supreme Court justice will decide the balance of power of an institution that has arguably become more powerful than the Congress and as powerful (at least) as the presidency.” And no decision of that Court has been hunted or defended more zealously than Roe v. Wade.
How, against this backdrop, can the fiction persist that this spectacle has been in pursuit of truth? If truth, rather than power, were the object, we would have to look more carefully at the patchwork of claims about Kavanaugh’s temperance that his classmates contradict. If truth were the object, we would have to speak more plainly about a band of men gathered for the second time in recent history to speed another man past charges of sexual misbehavior into our nation’s highest court. And we would have to stop pretending that one of the main engines of our politics at this moment is not who holds power over women—not merely over women’s rights or bodies, but over the very reality they inhabit.