The Wrong Question for Brett Kavanaugh

Everyone wants to know: Did he do it? But there’s more people should be asking.

Brett Kavanaugh
Chris Wattie / Reuters

Updated on September 19 at 3:25 p.m. ET

In the three days since the public first learned of Christine Blasey Ford’s allegation that a teenage Brett Kavanaugh attacked her, Kavanaugh and his defenders have focused on the specifics of Ford’s claim with clinical precision.

Kavanaugh said in a statement on Monday that “I have never done anything like what the accuser describes—to her or to anyone.” More recently, Kavanaugh reportedly denied having attended the party where Ford says the assault took place. Some of the judge’s supporters have suggested that Ford has made up her story, either maliciously or as a result of psychological confusion. Carrie Severino of the Judicial Crisis Network took the approach of characterizing what Ford describes in her letter as “rough horseplay” rather than attempted rape.

Did he do it? Do you believe her? These are the questions of the moment, and the fact that they are so difficult to answer reveals a level of both cruelty and ignorance that is by now familiar.

Ford’s story is highly credible. Kavanaugh denies it. This is where we are.

The White House and Kavanaugh’s defenders have addressed this contradiction by zeroing in on the question of whether Ford is remembering the events of that night accurately—and if so, whether the teenage Kavanaugh’s conduct is enough to deny him a seat on the Supreme Court of the United States. Focusing on these issues with pinpoint accuracy creates a vision of Kavanaugh’s responsibility, and even that of the Senate, that is cramped and narrow.

Here’s another question: What level of certainty about the nominee’s guilt should drive a senator to vote against that nominee? The standard to convict a defendant in criminal court is often understood as requiring anywhere from 95 to 100 percent certainty of the defendant’s guilt. In civil court, the “preponderance of the evidence” standard requires 51 percent certainty. As the economist Justin Wolfers asked on Twitter, “Would you appoint someone to the Supreme Court if you think there were a 25 percent chance they’ve done bad things? A 10 percent chance? A 5 percent chance? A 1 percent chance?”

And what about the nature of those bad things? What about whether an adult man, against whom no further charges of sexual harassment or assault are known to have been raised, should be denied a seat on the highest court in the land because he did something objectionable—even horrifying—as a boy on the cusp of adulthood? The conservative columnist Dennis Prager argues he shouldn’t: “If our good actions outweigh our bad actions, we are morally in the black; if our bad actions greatly outweigh our good actions, we are morally in the red. By all accounts—literally all—Brett Kavanaugh’s moral bank account is way in the black.”

These questions are very hard and the stakes are very serious. Answers are opaque at best. But forcing a moral struggle of such depth and pain into a calculation—a percentage chance, an adding and subtracting of immoral and moral acts—simplifies the matter to the point of absurdity. Consider Prager’s math. Judge Kavanaugh has, by many accounts, put a great deal of effort into hiring female clerks and making himself available as a mentor to young women in the law. This is a good thing. So how many young women must a person mentor before he blots out the stain of an attempted sexual assault? It’s an awful calculation—to suggest that some number of good deeds toward some women can cancel out horrific behavior toward one—but it seems to be one that people are prepared to make.

Kavanaugh was mentored by Judge Alex Kozinski of the Ninth Circuit U.S. Court of Appeals, and Kavanaugh’s unconvincing answers when asked before the Senate about allegations against Kozinski of sexual harassment and abuse of his clerks have been a sticking point for Kavanaugh’s opponents. Heidi Bond, one of the former clerks who came forward with allegations of harassment by Kozinski, tweeted on Tuesday: “You know what a true ally to women would say if falsely accused of rape? ‘I did not do this, but stop minimizing the behavior described. What she describes is attempted rape. I ask my supporters to not belittle that in their attempts to clear my name.’”

Bond’s suggestion gets at the weight of the situation and the inadequacy of a simple denial. The question of “Did he do it?” is obviously crucial. But focusing on that question alone is shortsighted. The question of Kavanaugh’s guilt or innocence exists within a broader universe of difficult questions, just as what Ford says she experienced must be seen within a universe of attacks on other teenage girls by other drunk and clumsy boys—a universe that seems to never stop expanding. The story of Ford’s trauma is intensely familiar. Assaults like the one she described, and the fear of such assaults, are woven into the everyday texture of women’s worlds.

What Kavanaugh is saying in response, and what the Senate does next, speaks not only to Ford’s personal experience but to the experiences of far too many women. The defense of Kavanaugh is unavoidably situated in the context of the nationwide reckoning with sexual harassment and assault that has taken place over the course of the past year—and under the presidency of a man who has been credibly accused of sexually harassing or assaulting 19 women and who has a history of making excuses for other powerful men credibly accused of assault and violence against other women.*

Western philosophy tends to present morality as a matter of deliberation: You should be judged on the basis of what you intended to do. This is what Prager means when he tallies up Kavanaugh’s “good” and “bad” actions. But the harder question is how to think about the aspects of our life that are shaped not entirely by what we intend but instead by unavoidable contingency, a necessary exercise given that we humans tend to live in the company of other people. What we do and who we are are unavoidably shaped by, as the philosopher Hannah Arendt famously put it, “the fact that men, not Man, live on the earth and inhabit the world.”

Presumably, Arendt was using the male pronoun by default. Today, however, the “he” feels inevitable.

Arendt’s advice is that we must “go visiting”: that is, train ourselves to not only think from our own perspective but imagine the world from the possible point of view of others. In the case of the Kavanaugh nomination, this kind of thinking means going beyond the who did what and beginning to understand the context that leads such a question to be necessary in the first place. It means acknowledging the weight of circumstance on Kavanaugh’s shoulders, however unfair that may seem.

Yet in two recent instances, Kavanaugh has not seemed willing or able to “go visiting” from the perspective of the women involved. In Garza v. Hargan, the case of the undocumented teenager blocked by the government from obtaining an abortion, it is hard to see in Kavanaugh’s legal opinions any comprehension of the pain and fear that girl must have felt. In the Kozinski controversy, his comments to the Senate gave no hint of understanding about how Kozinski’s harassment damaged those around him.

The tragedy here is that the seriousness of the allegations against Kavanaugh and the care with which they deserve to be treated are entirely at odds with the circus of the Trump administration. In her letter, Ford wrote that when Kavanaugh climbed on top of her and put his hand over her mouth, “I feared he may inadvertently kill me.” The adverb is devastating: the teenage boy is rambunctious, galumphing, while the girl underneath him stiffens in terror. It’s a fitting allegation to be leveled under President Donald Trump, a man who does so much harm and is somehow held responsible for nothing.

* This article originally included a CNN quote that was later corrected.