The Subtext of Kavanaugh’s Nomination Bursts Into the Open

A sexual-assault allegation against President Trump’s Supreme Court nominee brings the fight over gender and power to the fore.

Alex Wroblewski / Reuters

About the author: Garrett Epps is a contributing writer at The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

The last scene of the horror story that is President Trump’s Supreme Court nomination is what any screenwriter would have predicted: a cast of panicky strangers trapped in a haunted house, trying desperately not to say the words that will loose a monster hiding in the walls.

That monster is sex—gender, women’s rights—as lived in America in 2018. From the beginning, gender, and nothing else, is what this confirmation struggle has been about. The nomination of Sandra Day O’Connor in 1981, the first female justice, was a milestone for many women; in 1993, that of Ruth Bader Ginsburg, a feminist trailblazer, electrified equal-rights advocates. But neither of those, to me at least, conveyed the ominous gendered subtext of the nomination of Brett Kavanaugh.

Because that is true, there was no way, in the logic of the nightmare that is American life in 2018, that the nation would avoid direct confrontation between the sexes, between #MeToo and #MAGA.

And now it is upon us.

Now Kavanaugh has been accused of an attempted sexual assault years ago. The accusation was at first anonymous, and was received and kept quiet by Senator Dianne Feinstein, but details began to leak, sparking confusion and outrage on both sides. On Sunday, the accuser came forward in an article in The Washington Post. Her name is Christine Blasey Ford; she is a psychologist and biostatistician affiliated with Stanford and Palo Alto Universities. According to the Post, she has now provided a detailed account, taken a polygraph test, and produced copies of a therapist’s notes from 2012. The notes recount her memory of a party at which, she says, a teenaged Kavanaugh and a friend locked her in a room and held her down (with, she said, Kavanaugh covering her mouth to stifle her screams) until she managed to escape.

Like most other Americans, I have no information about these charges except what I have read in the news. Like many other Americans, I find them profoundly disturbing. And like other Americans, I must rely on my elected representatives to determine their validity—before seating a nominee on the bench once occupied by Earl Warren, Thurgood Marshall, and Sandra Day O’Connor.

Will they take this responsibility seriously? Or will the 11 male members of the committee’s Republican majority, in their discretion, decide the accusation does not “count”?

The gendered subtext of this moment is, not to put too fine a point on it, war—war to the knife—over the future of women’s autonomy in American society. Shall women control their own reproduction, their health care, their contraception, their legal protection at work against discrimination and harassment, or shall we move backward to the chimera of past American greatness, when the role of women was—supposedly for biological reasons—subordinate to that of men?

That theme became became apparent even before the 2016 election, when candidate Donald Trump promised to pick judges who would “automatically” overturn Roe v. Wade. The candidate was by his own admission a serial sexual harasser. On live national television, he then stalked, insulted, and physically menaced his female opponent—and he said, in an unguarded moment, that in his post-Roe future, women who choose abortion will face “some form of punishment.”

In context, Trump promised to restore the old system of dominion—by lawmakers, husbands, pastors, institutions, and judges—over women’s reproduction. Arguably that platform propelled Trump into the White House: Many evangelical Christian voters chose to overlook Trump’s flagrant sexual immorality, his overt contempt for the basics of faith, because they believed he would end abortion forever.

The appointment of Neil Gorsuch to replace Antonin Scalia in 2017 did not change the landscape of choice; Gorsuch was replacing a resolute foe of reproductive rights, leaving the balance intact. But Trump’s promise came to the fore this year, with the retirement of Justice Anthony Kennedy. Kennedy’s single vote kept abortion rights alive for a quarter century. Trump’s chosen replacement, Brett Kavanaugh, had referred in a published opinion to “abortion on demand” and, referring only to “existing Supreme Court precedent,” refused even to cite the precedential cases by name.

Anyone with eyes could pick up his disdain for the constitutional guarantee of choice.

In lobbying Trump to nominate Kavanaugh, his defenders had initially insisted that he was reliably anti-choice. “On the vital issues of protecting religious liberty and enforcing restrictions on abortion,” one former clerk reassured fellow conservatives in National Review, “no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh.”

Once Kavanaugh was trotted out, however, the discourse became very odd indeed. It reminded me of Thomas Pynchon’s parody of Jacobean revenge drama in The Crying of Lot 49:

a gentle chill, an ambiguity, begins to creep in among the words. Heretofore the naming of names has gone on either literally or as metaphor. But now … a new mode of expression takes over. Certain things, it is made clear, will not be spoken aloud; certain things will not be show onstage; though it is difficult to imagine, given the excess of the preceding acts, what these things could possibly be.

His defenders smoothly pivoted to insisting that the judge’s mind was completely open on these very issues. Kavanaugh had no preconceived ideas, they claimed with near-straight faces, about precedents that guarantee a woman’s “liberty interest” to choose abortion before the viability of a fetus.

Republicans in the state legislatures have, in the past decade, rammed through statute after statute aimed at destroying reproductive choice and asserting the state’s authority over the pregnant female body. Medically useless ultrasound requirements; defunding of reproductive non-profits like Planned Parenthood; “health” measures designed to close down existing reproductive clinics; “fetal pain” bills that forbid abortion in earlier stages of pregnancy; restrictions on medication abortion; limits on the availability of contraception; even proposals to declare fetuses “persons” under the law—the target is every aspect of the intimate decision by a woman whether to bear children. Some of these attacks will clear the increasingly conservative appeals courts and land in the Supreme Court’s inbox.

Can anyone believe that his former clerk was deluded, and that Kavanaugh’s vote is genuinely in play? The claims of open-mindedness are not part of rational “advice and consent”; they are gaslighting that puts even Charles Boyer to shame.

It is mostly women, in stations high and low, who have pushed back against the tide of double-talk. The hearings took place in a committee room surrounded by women dressed as Margaret Atwood-style “handmaids.” Opening day featured decorous, low-key statements by the mostly male committee members—while in the background, angry protesters, overwhelmingly female, screamed warnings of the sexist dystopia to come. Female Democratic senators—Kamala Harris of California and Mazie Hirono of Hawaii—abandoned politesse to give voice to clenched-teeth anger.

Kavanaugh, with the assistance of his Republican interlocutors, meanwhile smoothly ducked engagement with women’s issues. Roe and other cases were “precedent,” he said, a word which—to any five justices of the Supreme Court who reach a consensus on an issue—means nothing. His mentor and close friend Alex Kozinski is a serial harasser, he has learned, and Kavanaugh clucked his disapproval; but he personally had seen, heard, suspected nothing, nothing, nothing at any time.

These hearings have not at any time been an exercise in “advice and consent.” Instead, they have been—as the women screaming in the background have tried to warn us—banana-republic-level pantomime, aimed at installing a hand-picked functionary in lifetime office.

But even so, the way in which chair Chuck Grassley and the 10 other male Republicans on the committee handle Ford’s accusation will tell us a good deal about them and about the state of the gender battlefield. Will these men dismiss the allegation because it was too long ago? Will they attack the accuser and seek to shame her over hidden details of her life? Will they argue there is “only” one claim, and one is not enough? Will they say that 65 women’s signatures on one letter cancel one woman’s accusation in another? Will they turn the occasion into a chance to attack the Democrats and try to motivate their base for the midterms?

For months, the male leaders of the administration and the GOP insisted on silence on the real issue at stake. But despite their best efforts, the monster has finally come out of the walls. Will the Senate, and American politics, face it, or has the last year of gender piety been nothing but show?

In the year of #MeToo, will male authorities claim their traditional power to silence female dissent? Or will they—at last—take their offices seriously and find some way, fair to Kavanaugh and to Ford, to get at the truth?