Thinking About Kavanaugh

Since I’ve been asked to post some of my thoughts about American politics by a reader, it seems only right to reward the kind of feedback and responsiveness I’d love to see more of from readers as quickly as possible.

So, here you go, yet more commentary on the Kavanaugh nomination (though the first from me).

To begin, I am disappointed in the behavior of both major parties in our country. There have always been “winner-take-all” politicians in the world, but zero-sum, no-holds-barred, win-at-all-costs politics is now the status quo. Somehow along the way, we’ve lost the rigorous dedication to civil discourse, the ability to compromise and collaborate, and a focus on the common good over pandering to a limited electorate. This is true of persons on both parties.

I watched Senator McCain’s funeral with great sorrow. Not only did the event carry with it a sense of Shakespearean drama (I couldn’t help but think of Mark Antony’s funereal speech in Julius Ceasar, though both motivation and results differed in our reality–thankfully), but it really did seem that we’ve lost one of the last noble politicians–those who could vehemently stand for an ideology without demonizing or marginalizing anyone who disagrees. There’s some amount of revisionist idolization in there to be sure, but in his death McCain managed to become a momentary symbol of that more general loss.

I am afraid that both the Democrats and the Republicans have handled Kavanaugh’s nomination in such a way that it cannot but be polarized and polarizing. Worse still, suspicion of political motivations to the actions of both sides now guarantee that the results of the FBI investigation conducted this week will be automatically discounted by those whose opinion is not supported by the investigation’s findings. The Democrats will say that the investigation was too limited and too short if they don’t like the results, and the Republicans will call conspiracy if they don’t.

And that brings us to my real thoughts on Kavanaugh specifically. I watched a good portion, but not all, of both Dr. Ford’s testimony and Kavanaugh’s. But what I want to say in this post is not about the truth of the allegations against him. In fact, here’s what I have to say about the truth of the allegations: I don’t know. Based on what I’ve seen, I find no reason to believe a motivation in the three accusers other than sincere belief in the allegations made against Judge Kavanaugh. I found Dr. Ford’s demeanor fully credible. I don’t see that Ford, Swetnick and Ramirez have anything to gain by publically accusing Kavanaugh, but they do have much to lose.

In all honesty, I just don’t feel qualified to give anything other than my humblest of opinions as to the truth of the matter. So, putting that aside, let’s turn to the issues I do feel I can comment on.

Let me start with some comments as a lawyer to clear up misconceptions I hear frequently in discussions about the hearings and confirmation.

This is not a legal proceeding; it is a political one. Legal standards like “beyond a reasonable doubt” or “a proponderence of evidence” or “burden of proof” are not the proper standards to refer to in the confirmation of a Supreme Court justice. No one is considering criminal prosecution here, so let’s stop pretending like criminal standards matter.

The only standard that matters is “do we believe that this candidate will carry out the duties of a Supreme Court justice competently, faithfully, impartially and to the highest degree that the people of the United States deserve?”

In other words, the proceedings are not ultimately about Kavanaugh answering to the Judicial Committee, the Senate, the President or the Congress as a whole. They are about those bodies doing everything that they can to ensure that the candidate confirmed is accountable to the American people. Many of us–especially the politicians–have lost sight of that.

Additionally, let us not treat Kavanaugh as if he’s entitled to be confirmed. This is not a matter of “once the president nominates him, the burden shifts to someone else to affirmatively disqualify him.” The first concern in such a matter must never be the specific candidate, but the good of the citizenry. That should mean a neutral playing field.

So, when other people lament Kavanaugh’s treatment by the press, the Democratic members of the Judicial Committee, or anyone else, I can only partially agree. I can only agree to the extent that everyone deserves to be treated with civility and respect. I cannot agree to the extent that some deservedness of preferential treatement is assumed in such comments.

No one is entitled to be a Supreme Court justice. Personally, I’m a bit suspicious of anyone who makes it their avowed ambition to be one–I think that cuts against the expectations of neutrality in interpretation of the law, humility and selflessness that should be expected of such a person.

I also want to clarify comments about defamation. It is long established law in our country that those who are candidates for public office (or who hold such office) are under most circumstances barred from making claims of defamation. This is a function of the First Amendment right to question or criticize the operations of government and a check on the government itself by ensuring that the nation may freely debate the character and actions of its leaders. Those who run for office (for the most part) give up the right to complain about what people say about them.

On the other hand, I also believe that a respect for the democratic process must be placed above the result of any particular nomination. I do not agree with many (perhaps most) of Kavanaugh’s political ideas or jurisprudential philosophy. I do fear that his presence on the Court could threaten a reversal of long-established rights in this country, such as Roe v. Wade. But that is not a reason in and of itself to take the position any price should be paid to keep him off of the  Court.

Our nation was designed with checks and balances in mind, and there are ways to counter judicial results we don’t like–at both the state and federal levels, statutes are passed with some frequency because the legislature does not want to keep the legal result reached by a court. While the conditions under which such legistlative override are sometimes complex, we should not be mistaken for believing that any one decision within our government is an irreversible loss to anyone who doesn’t like the result.

I am willing to concede that I do not know whether Kavanaugh committed the acts of which he’s been accused, though I did find Dr. Ford’s testimony highly credible. What disqualifies Kavanaugh in my opinion (and I’m far from the first person to say this) was his own testimony on the same day.

Kavanaugh’s vitriolic description of hit-jobs, conspiracies and an intense hatred of Democrats showed a man who lacks judicial temperament. What we need in this country–across the board–are people who are willing to reserve judgment, consider the possibilities, have humility in the limitations of their knowledge and admit that they do the best that they can under the circumstances. Kavanaugh revealed himself to be a man more than willing to be partisan and to politicize judgments that should be made from a more even-keeled position. His extreme distrust of Democrats indicates a prejudice I find he would be unlikely to set aside simply because he puts on his robe and takes a seat in our highest court. For me, that’s the end of the analysis. There are other candidates, plenty whom the conservatives can get behind, who are otherwise qualified to hold the position (whether or not I agree with their views).

Now I’m going to share some thoughts on the matter as a Christian and lay theologian. As a Christian, I believe that people can change–it’s a fundamental part of our faith. Had Kavanaugh said from the get-go that he behaved irresponsibly as a kid, but that he’s grown past that, I would have had profound respect for that. Had he done that, I think I would have to give much more thought to the seriousness of the allegations against him to determine whether I personally thought him fit for the office.

But he didn’t. Instead, he tried to downplay and mischaracterize his youthful indiscretions for his personal gain. Again, the truth of the allegations against him aside, such dishonesty and dodginess is unacceptable from a person who wants to sit in an institution where the pursuit of truth and fairness is paramount. As most of the late-night hosts have remarked, his disingenuous explanations of commonly-known slang terms was deserving of ridicule. In this time of Russian bots, “fake news” and “alternative facts,” I believe that one role a Christian must play in current politics is to stand for truth and against disinformation and purposeful deception or propaganda–even (and especially) when we don’t like what that truth is.

I am disturbed by the sense of personal entitlement that Judge Kavanaugh displayed in the hearing. The general thrust of his argument was, “I’ve played by the rules of the country’s elites, so it would be unfair to deny me this position.” He responded to questions about his drinking by saying that he worked hard as a student, checked off the boxes of privilege for those with the resources and connections to attend Ivy League universities, that his position as a varsity sportsman and talented student somehow entitled him to behave however he wanted outside of those pursuits. His response to Democratic questions were not those of a person humbly submitting to vetting before potentially being given a high honor, but of a defiant man daring to challenge others to explain why he shouldn’t be given that honor.

Privileged entitlement is one of the biggest social issues in modern culture, I think. It is inextricably involved with racism, sexism, anti-immigration discrimination, the wealth divide and most of the other hot-button issues of the day. Kavanaugh’s nomination and the accusations against him, I think, have generated so much traction because these events seem so emblematic of the issues of privilege and entitlement in our country.

I am suspicious that, for some but certainly not all, an unacknowledged sense of entitlement is part of the opposition to full inclusion within the Christian faith.

I am extremely troubled by Trump, Jr.’s comments that he fears for male children more than female children in light of today’s #MeToo movement and the Kavanaugh hearings. Frankly, I’m pretty tired of the privileged trying to make themselves out to be victims. It’s not a good look. But take my indignation with a grain of salt–I am after all a white Christian heterosexual male who was born into an upper-middle-class family.

Nevertheless, I do not think that we’ve yet made sufficient progress in the rights of women that it’s time to start having conversations about how we protect men in the relatively few situations where they are falsely accused.

All of this begs the question as to what I think Christians should be doing to help in today’s environment. I have some particular things to say based on my own theological understanding of our faith, but let’s save that for some other post. For now, let’s focus on some things that I think most (hopefully all) Christians can agree upon.

First, let’s stand for truth. Let’s stop absorbing our preferred news source, assuming that everything they’ve said is exactly the way it is, and making assumptions about the facts without doing much to confirm them (as best we can). Let’s hold those who blatantly disregard the truth responsible for such behavior.

Second, let’s practice some humility. It is possible to stand for strong convictions while admitting that one is not so special as to be absolutely, unequivocally sure of the truth. In light of that, let us treat each other with respect. We can disagree without hating those who disagree with us. We can protest without hating the people who stand for what we’re protesting. Sometimes, often perhaps, that’s not easy. But that’s why we must practice.

Third, let’s actually listen to one another. This necessarily flows from the second point. I will admit that one is likely to encounter some people whose beliefs are entirely unfounded and unmoored from reality at some point along the way. I will also admit that it is a waste of time to engage with some people, because they will not be reasonable enough to engage in real conversation. But I don’t think that those people constitute the majority, and you still have to listen to everyone to know who is who.

Fourth, let’s try to walk the line. What line is that, you ask? The line between understanding that the truth and what people believe are both important, though they’re not necessarily the same thing. When I advise clients as an attorney, I often tell them that they need to treat the beliefs of the other side as true. Not because those beliefs are true, but because those beliefs are nevertheless realities that must be negotiated in order to achieve a desired result.

For the Christian in political discourse, this approach is important both pragmatically and morally. First, we cannot love one another well without trying to understand where other people are coming from, whether we agree with their perception or not. Even in our strife, even in politics, we must endeavor to act with love toward one another. Practically, you’re never going to convince anyone of anything by telling them that the way that they feel is flat-out wrong and should never be considered.

In my judgment, much of the current anti-immigration sentiment is based out of fear of loss–loss of culture, loss of status or income, loss of the “way things used to be.” I may not think that the fear of those kinds of loss are based in fact or are proper responses to immigration, but that doesn’t change the fact that many who feel that anti-immigration sentiment are scared, and if you can’t help them manage that fear (or at least acknowledge it), you’re not going to be able to reach a relationship with them where you can honestly talk about why they might (by their faith, for instance) be called to change those views.

In summary, the best way for us to influence how our politicians behave is to model that behavior ourselves so that we are not hypocrites when we demand the same sort of behavior from them. This, I think, is a moral imperative of the Christian. Happily, I think it coincides with our civic duties.

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