The Secret to Brett Kavanaugh’s Specific Appeal

The nominee’s transgressions, far from marking him as unfit, signal to his supporters that he is trustworthy—he is one of them.

Brett Kavanaugh
POOL New / Reuters

About the author: Judith Donath is a fellow at Harvard’s Berkman Klein Center for Internet and Society. She is the author of The Social Machine: Designs for Living Online.

If you are one of Brett Kavanaugh’s detractors, the accusations against him demonstrate an underlying contempt for women. His attempts to portray himself as a studious, innocent youth make it worse, adding dishonesty to the list of objectionable characteristics. When he testified before the Senate on Thursday, he seemed like an entitled frat boy infuriated by the possibility of not getting his way. To see him as suitable for the Supreme Court seems unfathomable.

But it is, of course, quite fathomable: On Friday, the Judiciary Committee voted to advance Kavanaugh’s nomination to the Senate floor, albeit with the understanding that an FBI investigation would take place. As the accusations came out, President Donald Trump and the GOP leadership doubled down in support of their nominee. Trump called him “a wonderful man, and a man who has the potential to be one of our greatest Supreme Court justices ever.” Senate Majority Leader Mitch McConnell denounced the alleged survivors of serious sexual assault, saying the “shameful, shameful smear campaign has hit a new low.” The real victim, he claimed, is Kavanaugh, suffering “the weaponization of unsubstantiated smears.”

Ideology partly explains the differing reactions. But there are other highly qualified justices. Backing Kavanaugh means alienating a lot of women voters. Why the resolute support for someone so tainted?

What is hard to see, unless you see the world through the lens of a certain type of powerful man—like Trump, like McConnell—is that the picture that has emerged about Kavanaugh’s past, far from marking him as unfit, signals that he is trustworthy. It shows that Kavanaugh is there for the guys. Most of all, he knows how the world works: Ordinary rules are for ordinary people. They do not apply to the entitled elite—and he will fight to keep it that way.

One key to understanding Kavanaugh’s specific appeal is that unlike, say, Harvey Weinstein or Bill Cosby, he stands accused of having assaulted his victims as part of a group.

As the lawyer and civil-rights advocate Nancy Erika Smith has noted, “sexual assault does not usually take place in public.” Yet none of Kavanaugh’s accusers claims that he attacked them alone. His best friend was there, or a group of drunken buddies. Christine Blasey Ford wrote: “Kavanaugh was on top of me while laughing with [Mark] Judge, who periodically jumped onto Kavanaugh. They both laughed as Kavanaugh tried to disrobe me in their highly inebriated state.”  Deborah Ramirez recalled that Kavanaugh pulled down his pants and stuck his penis in her face during a drinking game, while their Yale classmates laughed and taunted her. Julie Swetnick’s sworn affidavit says she saw Kavanaugh and others attempt to “cause girls to become inebriated and disoriented so they could then be ‘gang raped’ in a side room or bedroom by a ‘train’ of numerous boys.”

A striking thing about these stories is that they are variations on a theme: sexual assault as social performance.

We may never know what happened in those Washington, D.C., house parties or Yale dorm rooms. But there are some things we do know that seem to substantiate the accusers’ portrait of Kavanaugh. For one, there’s a yearbook entry—a carefully fashioned self-portrait. Kavanaugh’s contains bragging innuendo about sex and prodigious drinking. He lists one of his activities as “Renate Alumnius,” publicly insinuating a sexual history with a girl from a nearby private school. Like the alleged physical assaults, this reputational assault was performed with a group, a club of football players who also named Renate in their yearbook entry and captioned a group photo of themselves as the “Renate Alumni.”

Choosing to describe yourself as a “Renate Alumnius,” or with phrases such as “100 Kegs or Bust” and “Beach Week Ralph Club— Biggest Contributor,” or thrusting yourself on unwilling women to the amusement of your jeering friends are all ways to signal, to the intended audience, that you are part of the team, a member of the club—and a trustworthy keeper of its secrets.

Secret keeping is a theme Kavanaugh returns to repeatedly.

His 2014 speech to the Yale Law School Federalist Society featured tales of drunken exploits from his law-school days, including a bus trip he organized that ended with a night of bar-hopping in Boston and “group chugs from a keg” on the bus. He noted: “Fortunately for all of us, we had a motto: ‘What happens on the bus stays on the bus.’ Tonight, you can modify that to what happens at the Fed Soc after-party stays at the Fed Soc after-party.” In an address a year later at the Catholic University Columbus School of Law, he mentioned that three alumni of that school were “really, really good friends” of his from high school. Then he added: “Fortunately, we’ve had a good saying that we’ve held firm to this day, as the dean was reminding me before the talk, which is ‘What happens at Georgetown Prep stays at Georgetown Prep.’ That’s been a good thing for all of us I think.”

Secrets and group loyalty go hand in hand. If you know that I did something wrong or illegal, but I don’t have anything similar on you, that’s a recipe for blackmail, not trust. But when the knowledge is mutual—when we’ve done something illicit together—the dynamic is radically different. Mutual misbehavior builds trusting bonds, partners in crime.

In his book Codes of the Underworld, the Oxford sociologist Diego Gambetta stated it clearly: “Groups whose members have transgressions to hide from public view and whose members share knowledge of these transgression with each other will enjoy a comparative advantage in their ability to support their internal cohesion.”

A lot of alleged transgressions are coming out to the light of day this week. But keep in mind that they very nearly did not. Kavanaugh has been prominent for decades, drafting the Starr report, serving as George W. Bush’s staff secretary, and confirmed after extended hearings to the U.S. Court of Appeals. He and his friends, and others like them in similar circles, seem to have managed a remarkable balancing act, discreetly flaunting their misbehavior, loudly enough so that others know that bad things had been done, but with enough plausible deniability that no one gets into trouble.

Being an excellent keeper of one’s own group’s secrets does not mean one will keep others’ dirty laundry safely hidden—quite the opposite. It was Kavanaugh, when working for Ken Starr, who argued for uncovering and including the most graphic sexual details about President Bill Clinton’s affair with Monica Lewinsky. Keep the secrets of the in-group; raid and reveal those of the out-group.

Kavanaugh, up for an ostensibly nonpartisan position, has hinted that Trump is part of his in-group these days. In his formal response to Trump upon being nominated for the Supreme Court seat, he said: “I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Saying this to a president who has chosen his nominees from a shortlist vetted by conservative groups demonstrates loyalty—and the secret keeper’s skill at saying the right thing to maintain a proper facade.

The stories now circulating about Kavanaugh indicate, beyond skill at covert transgression, an aptitude for ensuring that a double standard would apply to him. Of course underage drinking is against the law. Of course it is wrong to assault women. (Kavanaugh categorically denies having assaulted women, but shrugs his shoulders at the voluminous evidence of underage drinking.) People—ordinary people—get into trouble for doing those things. But people like Kavanaugh—who are immune to repercussions by dint of money, connections, personal charisma, or the ability to instill fear—don’t. Doing those things, and importantly, doing them publicly, sends a powerful signal about one’s invulnerability and prerogative.

This is, I believe, the greatest appeal that Kavanaugh holds for the Republicans: The rules that apply to others do not apply to them. One of the most vivid illustrations of this maxim is the recent history of the very position for which he is nominated. When President Barack Obama tapped Merrick Garland for the Supreme Court, McConnell decreed that such appointments could not be made in an election year. Now with Trump in the White House, and a Republican-majority Senate, McConnell proclaims that not only may a justice be nominated and approved, but the confirmation process must be completed with the greatest haste possible. “We’re going to plow right through it.” It is their world, and they make the rules.