Commentary Law and Policy

Judge Brett Kavanaugh’s Bad Character Has Nothing to Do With His Bad Politics

T.S. Mendola

The same argument that connects the accusations against Judge Brett Kavanaugh to his record implicitly admits the converse: that good politics are a sign of good character.

Brett Kavanaugh’s politics are bad—not in the sense that they are sloppy or imprecise, but in the sense that they consistently curtail bodily autonomy and individual freedoms.

While his legal record is perhaps not as bad as it might be with regard to criminal cases, his decisions on national security make up for it with indefinite detentions to spare. His stance on the unassailable nature of executive power alone should disqualify him from the U.S. Supreme Court while a president is under FBI investigation. Yet, as so often happens with this administration, Americans are faced with a veritable cornucopia of a candidate’s failings.

Brett Kavanaugh’s character is also bad—in the sense that the multiple, credible allegations against him display a consistent inability to see women as fully human. Instead, as Lili Loofbourrow argued in Slate, these women become props in a drama of “toxic homosociality.” His Thursday hearing before the Senate Judiciary Committee provided a dramatic encore of that homosociality, as he performed rage for President Donald Trump and the Senate Republicans, over the bodies and voices of Christine Blasey Ford, multiple female senators, and Rachel Mitchell, the female prosecutor hired to question him.

In retrospect, it seems inevitable that a man with these politics would have this character. It feels natural—intuitive, even: a small step from the intimate violence of attempted rape to the legal violence of denying Jane Doe an abortion. But this kind of straight line, from what we might loosely call “character” or “temperament” to politics, assumes that “character” is something that is consistent, stable, and entirely knowable from actions that others have both observed and reported. The same argument that connects Kavanaugh’s bad character to his bad politics, in other words, implicitly admits the converse: that good politics are a sign of good character.

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We know this is not true. Ted Kennedy placed so little value on a woman’s life that he not only left her to drown but neglected to report the incident for more than nine hours while running political damage control. Later in his life he had a 100 percent rating from NARAL and Planned Parenthood. Women’s groups such as NOW referred to him as a “women’s rights champion” after his death. President Bill Clinton vetoed the obscenely named “Partial-Birth Abortion Ban Act” and appointed Ruth Bader Ginsburg to the Supreme Court. He also has been accused of sexual harassment by multiple women and had an inherently coercive affair with Monica Lewinsky. He has never apologized. Harvey Weinstein gave generously to both President Barack Obama’s and Hillary Clinton’s campaigns; he has allegedly raped, assaulted, or harassed more than a dozen women.

Kavanaugh used the same flattening logic in front of the Senate Judiciary Committee that allowed Weinstein to shield himself with his sterling Democratic pedigree for decades.

“THAT is who I am,” he says, “THAT is who I was”—referencing his hiring and promotion of female lawyers, his close female friendships, and his female law clerks. This idea that one part of someone’s public behavior is a reliable indicator of a murky-yet-supposedly-predictive construct that society calls “good character’ ignores what we know about sexual violence: A man can treat some women kindly and harass others. A man can never lay a finger on his wife and rape others. And yes, a man can have smart female friends and adorable daughters and a loving mother and participate in gang rape. Patriarchy is capable of nothing if not categorizing some women as human and not others.

The unhappy coincidence of morally outrageous politics and character found in Judge Kavanaugh is just that—a coincidence, if not a wholly improbable one. Political decisions have intimate repercussions. In this way, Kavanaugh’s legal decisions stand on their own as misogynistic violence; they do not need to be rooted in a psychological analysis of his character. The fact that his political actions are as despicable as his alleged personal ones is merely particularly loathsome; his attempted rape no more guaranteed his ruling on Jane Doe than Ted Kennedy’s manslaughter ordained his support for the Equal Rights Amendment.

Philosophers argue about this all the time: one side (virtue ethics) derives from Plato and Aristotle, claiming that our character is generally consistent across all situations and predictive of our actions. The other (situationalism) claims that a minor situational change may drastically influence ethical behavior. These days, both sides generally agree that while character traits certainly exist, individual decisions are “the function of a (complex) person by situation interaction.” Someone might, for instance, coach their daughter’s basketball team at home and show a shocking lack of empathy for detained female minors at work. You can’t use good political behavior to predict good personal behavior, nor vice versa.

Judge Kavanaugh is unfit for the Supreme Court because he stands credibly accused of sexual assault, because he cannot or chooses not to control his childish belligerence on the national stage, and because of his rank partisanship. The assault charge does not speak to the quality of his jurisprudence, which is itself authoritarian and misogynistic. Indeed, even were he a jurist in the mode of Ginsburg, the allegations would still be disqualifying: To reward even the whisper of such behavior with the highest judgeship in the land is to destroy the underpinnings of a functioning democracy.

Judges are not only there for their legal decisions: They are there as symbolic anchors of the possibility of impartial justice and examples of the best moral judgment America has to offer. And as paltry as it feels to say it at the moment, as broken as the dream of this country has always been, the United States is a nation of ideals, not of a given race or creed. That idea of justice, coincidentally, is routinely allegorized in this country as a woman, as is liberty. Lady Liberty and Lady Justice are poorly served by such a scion of entitled misogyny and rage. A second Supreme Court judge with such a tarnished reputation dishonors the country—and the women—he is supposed to serve.

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