What the Kavanaugh Debacle Has Revealed

“Trust us, we know him” was never a convincing endorsement.

By Nathan Pippenger

Tagged politicsSupreme Court

First things first: Good on Benjamin Wittes for admitting publicly that he misjudged Brett Kavanaugh. Every time a writer is willing to say “I was wrong,” the genre of opinionated political writing gets just a bit livelier. And although that exact phrase does not appear in the over-3,000 words Wittes has published on the subject in The Atlantic, they are its unmistakable point. “If I were a senator,” Wittes admits with what he calls “deep sadness,” “I would not vote to confirm Brett Kavanaugh.” The sadness that Wittes describes is not so much political as professional and personal: “I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so.”

Indeed, Wittes has vouched publicly for Kavanaugh’s character, and recently, as Scott Lemieux acidly noted a few days ago:

Obviously, much has changed in the month since Wittes posted this pro-Kavanaugh testimonial. In his new essay, Wittes candidly acknowledges that both the allegations against Kavanaugh, and Kavanaugh’s own behavior, would incline him toward a “no” vote: [A]t least as I read it, though it pains me to say so, the evidence before us leans toward Ford,” he writes, adding: “[Kavanaugh]’s performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.”

However, when Wittes turns his focus to the larger political context in which these searing events have unfolded, he seems almost as disillusioned by the process as by the nominee: “We are in a political environment in which there are no rules, no norms anymore to violate. There is only power, and the individual judgments of individual senators—facing whatever political pressures they face, calculating political gain however they do it, and consulting their consciences to the extent they have them.”

I think this world-weariness obscures some more encouraging aspects of this affair. If Kavanaugh’s nomination sinks, it will be partly attributable to rules and norms that were violated—by Kavanaugh. In other words, it’s not exactly the case that there are no rules and norms to violate; rather, it’s that we’re living through a period of apparent social change, and so there’s no consensus about what norms should apply. Obviously, Kavanaugh’s behavior—possibly criminal then, definitely boorish now—does not qualify as a norm-violation for everybody. (Witness the sickening “boys will be boys” defense that has shamelessly emerged on the right in recent days, as well as Trump’s gleefulness at Kavanaugh’s pugnacious behavior at the hearings.) But the strong opposition to his nomination represents the emergence of new red lines, at least among some Americans. That’s a positive development, and it’s not merely a matter of sordid partisan calculations, or of what Wittes calls a “nauseating” lack of self-doubt among celebratory liberals who, convinced of Kavanaugh’s guilt, are “undetained by the possibility of error.”

It’s hard to avoid reading Wittes’s affirmation of doubt—“We all need to think it possible that we may be mistaken; we all need to be not too sure that we are right”—as a reflection of his own disbelief that he could have gotten the nominee so wrong. “The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of […] In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.” Kavanaugh, wrote Wittes in September, is “a thoroughly decent and honorable person.” About the question of whether Kavanaugh could be lying: “He’s not [a liar]. Full stop.” These are sweeping, declarative statements intended to close down skepticism: Trust me, I know this person.

Indeed, while it is admirable that Wittes now counsels doubt where he once preached certainty, it is strange that he does so while also seeming to regret the process that proved his initial certainty to be mistaken. What if we had trusted endorsements like this one from the start? Wittes, it should be noted, was not alone: Lisa Blatt, described in Slate as a “SCOTUS superstar,” took to Politico to declare Kavanaugh “one of the warmest, friendliest and kindest individuals I know,” and to dispense advice to skeptics: “Democrats should quit attacking Kavanaugh—full stop.” But if Kavanaugh skeptics had accepted his basic honesty, decency, and integrity from the start—because prominent people told us to—there would have been far less pressure to pursue what have turned out to be enormously important questions. Things that seem eminently possible, even likely, now—that Kavanaugh is willing to engage in shameless pro-GOP hackery, that he lacks a judicial temperament, that he’s a liar, that he has assaulted women—were deemed impossible just a month before. That skeptics pursued their doubts until it became clear that there was more to Kavanaugh than supportive commentators admitted or understood attests to the productive aspects of the political process that Wittes seems to regard as unseemly and regrettable. To be fair, it has been ugly; and for people who considered themselves friends of the nominee, I’m certain it has been deeply unpleasant. But this isn’t a spot in a private club; it’s a seat on the Supreme Court. It would have been far, far worse if the man Brett Kavanaugh has revealed himself to be had smoothly ascended to that seat because the public accepted, out of aversion to the potential messiness of politics, the “trust us” consensus of his elite friends.

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Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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