“The Opposite of Love isn’t Hate, it’s Indifference” (My Take on the Kavanaugh Mess)
The curse of being a trial lawyer is that I cannot help but write my own (better) cross examinations during important public hearings, and I’m constantly constructing closing arguments in my head. Here is how we should be framing the discussion and why Brett Kavanaugh should not be confirmed.
The Ford Hearing should have been disqualifying for Brett Kavanaugh for reasons that have nothing to do with what happened 35 years ago.
First, his political bias. While he put on the necessary mask of impartiality during his initial hearing, he subsequently revealed what an extreme partisan he truly is. In his opening statement, while under oath, he came unhinged as he lashed out at people who he claimed wanted “revenge on behalf of the Clintons” as well as “left-wing opposition groups.” He lamented that these unnamed boogeymen had destroyed his family and his reputation. His conspiracy theorizing collided with credible testimony from a woman who has absolutely zero connections whatsoever to the people he claims fabricated her story, and who provided unrefuted corroboration that she talked about this incident long before Kavanaugh was nominated. But Kavanaugh didn’t let facts get in the way of his tirade (no politician would).
The question we should all be asking is: how on earth could a man, who swore under oath that he holds an unsubstantiated belief that the left took out a “political hit” on him, be fair and unbiased to anyone who has a case before him from any group even remotely affiliated with the political left moving forward? The Supreme Court hears cases on gerrymandering, campaign finance, abortion, gay marriage — he could view any one of these plaintiffs as having tried to destroy him. As he told us himself: “What goes around, comes around.” He was staking his claim to exact revenge, from the perch of a lifetime appointment.
Second, his rage. We saw a woman, through tears, tell a horrific story of assault that she has carried for 35 years. But she was calm, attentive, respectful, and responsive to all the questions. In contrast, Brett was a child. He was angry, volatile, arrogant, and made a very good case for how, when he is not carefully controlling his emotions, he was exactly the person Dr. Ford described. But he was not ridiculed, rather, he was applauded for his performance. Like Clarence Thomas before him, he shamed the men on the committee into submitting to his indignant rage. (And, in Lindsay Graham’s case, joining in).
Third, his entitlement. Gone was the false humility, replaced by his obviously natural hubris, his insistence that because he “worked hard” to get into Yale and graduated first in his class, he deserves this seat. Nevermind that he was born to privilege, went to one of the most elite prep schools in the nation, and has been groomed by Republicans since college for this job. This was a job interview, nothing more, and his performance could write the handbook for what not to do. The standard was not “beyond a reasonable doubt,” it was “do you want this person to run your company.” But he expects this prize because it was promised to him. That it might be taken away from him was justification to mock, berate, and blame everyone in his path who he dreamed had wronged him, yet another thing that only privileged white men are rewarded for doing.
None of this, by the way, has anything to do with Dr. Ford.
While the hearing should have been focused solely on Dr. Ford and what happened on that night 35 years ago, it became about him. His chest beating, his career, and what he was owed. Somehow, he managed to divert the attention from the assault to his discontent that the assault was “leaked”, and that was what made Dr. Ford a victim. It was the timing, not the substance, of the allegation that mattered most, and they made such a ruckus about it that in the end, that’s what won the news cycle. When they said the were sorry she had to be there, what they meant was “we wish you would have shut up and stayed home.” The most difficult 10 days of his life were far more important than the most difficult 35 years of hers.
There were plenty of opportunities, but the Democrats messed up. Nobody pinned him down on his partisan statements, nobody pointed out his inappropriate temperament, nobody shot back that this was a job that he had to earn, not a prize to which he was entitled. His answers to every question he disliked were utterly non-responsive (his false statement that “all the witnesses said I didn’t do it” was a familiar refrain) — any litigant in his courtroom who behaved as he did would have been kicked out. And, as he claimed over and over that there was “no evidence,” nobody pointed out the mind-numbingly obvious fact that witness testimony IS evidence, and that he and his pals were preventing any other evidence from materializing. Nor did anyone hit home the fact that, no matter what his accomplishments or achievements, no matter how many women law clerks he hired, none of that in any way negates Dr. Ford’s testimony. Good people can do bad things. And they also, by the way, can be redeemed, but they must first undergo a reckoning, which he has no intention of doing (just check his calendar).
It came down to a “he said-she said,” and per the laws of the patriarchy, we are required to conclude that a woman must be mistaken rather than even considering that a man may have messed up. So the white male Republican senators got away with both admitting Dr. Ford was credible, and in the same breath, saying that Kavanaugh was innocent, gaslighting survivors and convincing half the country that 2+2= 5.
Both our Politics and our Hearts are Broken
There are two lasting tragedies here. The first is that Jeff Flake, who may prove to be the most adept politician of all, has figured out a way to get Kavanaugh confirmed by requesting an investigation. We know that the FBI wants nothing to do with this toxic mess, that they won’t have the leeway to truly investigate, and that witnesses cannot be compelled to talk to the FBI. So it will be a sham investigation, but it will be seen as a wild concession and all Republicans will then be clear to vote for him. Now, the vote hinges on this cursory and toothless investigation, rather than Kavanaugh’s disqualifying character, behavior, or the fact that he will overturn Roe v Wade.
The second lasting tragedy, of course, is that women have again been shown to be irrelevant. Elie Wiesel said “The opposite of love isn’t hate, it’s indifference.” And I think that’s where we are. When Anita Hill testified, she was villified. Now, 27 years later, no Senator will explicitly call Dr. Ford a liar, but rather they are ignoring her, treating her as if she does not exist. Which, by the way, is far more insulting.
Every woman on this planet has been on the receiving end of sexual misconduct, yet most men continue to be oblivious. The Republican men on the judiciary committee don’t believe a man like Kavanaugh, a man like them, could do this thing. They cannot fathom it is possible. Men like them are honorable, women are confused. So they pat us on the head and tell us what’s best for us and move on.
Kavanaugh will be confirmed to the Supreme Court. His appointment will deepen the divisions in the country, complete the politicization of the Court, sow distrust in the rule of law, and give him a platform to both defend the president who stood by him and exact revenge on those who he believes to be his enemies for the rest of his life.
Unlike Brett Kavanaugh, I was a total square in high school. I’m barely mentioned in my yearbook, other than my obligatory senior quote, which was: “The nice thing about being a pessimist is that you are always being either proven right or pleasantly surprised.” Now, decades later, I am grateful for my adolescent nerdiness, but my view has changed. I no longer enjoy being a pessimist, and I’m tired of being proven right.
I am grasping for hope. Maybe Trump’s election, the aftermath of which has brought me face to face with more raw anger and despair than I’ve ever experienced in my life, will inadvertently bring about the feminist revolution we have been waiting for. Maybe, after a couple decades go by, we will regain the Supreme Court and set this country back on a course of understanding, acceptance, and equality before I die. Maybe after Anita Hill and Christine Blasey Ford, in another 27 years, the next woman to come forward and testify will be believed. Hoping for a pleasant surprise.
