Years from now, perhaps only days from now, when people are no longer quite so inebriated with partisanship, those who wish Brett Kavanaugh well and those who wish him ill will probably agree on one thing: His defiant September 27 statement denying the charges leveled against him in the course of his Supreme Court confirmation is the defining speech of our time. Kavanaugh rejected outright Christine Blasey Ford’s allegation that he had jumped her and gagged her at a party 36 years ago, when both were in high school. He denied knowingly having met her. None of the witnesses she named remembered any such party.
But it was a Kafkaesque situation for Kavanaugh: Since Ford could not (or would not) say when and where the incident took place, it was literally impossible for him to exonerate himself conclusively. “Doubts” had been “raised.” Raised by people with a desperate political interest in raising them, it is true. But those who sit on the Senate Judiciary Committee are no more immune than ordinary human beings to the lazy-minded heuristic that when accounts clash, the truth must lie “somewhere in the middle.” When Ford finished testifying on Thursday morning, Kavanaugh’s nomination appeared to be finished.
The moment Kavanaugh began to speak, he broke that logic. The senators were not adjudicating a difference of recollections. They were not adjudicating at all. They were engaged in a “grotesque and coordinated character assassination . . . a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.” Now the middle ground was gone, and a new understanding was in place: Whether Ford was lying or misremembering, what was happening was not a hearing but a show trial.
In that context, splitting the difference could no longer be passed off as moderation. It was cowardice. Any Republican who voted against Kavanaugh (and, of course, any Democrat who voted for him) would thereby exit his party. Just as the congressional vote in 1846 on the so-called Wilmot Proviso revealed that the fault-line in American politics was about slavery, not party, the Kavanaugh nomination shows what American politics is, at heart, about. It is about “rights” and the entire system that arose in our lifetimes to confer them not through legislation but through court decisions: Roe v. Wade in 1973 (abortion), Regents v. Bakke in 1979 (affirmative action), Plyler v. Doe in 1982 (immigrant rights), and Obergefell v. Hodges in 2015 (gay marriage). The Democrats are the party of rights. As such, they are the party of the Supreme Court. You can see why Ted Kennedy claimed in a 1987 diatribe that the Yale law professor Robert Bork would turn the United States into a police state. For Democrats, an unfriendly Supreme Court is a threat to everything.
That means the country itself. The general Democratic view that has hardened since the 1960s is the one expressed on many occasions by Barack Obama. The United States is not a country bound by a common history or a common ethnicity—it is a set of values. That is an open, welcoming thing to build a country around. But it has a dark side, and we have seen the dark side during the hearings. If a country is only a set of values, then the person who does not share what elites “know” to be the country’s values is not really a member of the national community and is not deserving of its basic protections, nice guy though he might otherwise be. Such people “belong” to the country in the way some think illegal immigrants do—provisionally.
On both sides of this dispute, attitudes towards evidence were deducible from political allegiances. Those who opposed Kavanaugh—or who were looking for a reason to oppose—stressed the “believability” of Ford’s story. Of course they did. The hearings were designed to enhance that believability. This was partly due to politics: Senators were frightened, in an election year, of being seen to beat up on a woman presenting herself as the victim of sexual assault. But it was partly due to the Senate’s ground rules: This was a venue in which a man could be accused of sex crimes without any right to confront or cross-examine his accuser. Ford’s supporters were content that it should be this way. It was only a “job interview,” they said.
Deprived of these structural advantages, the case against Kavanaugh was weak. Without the information that would be turned up regarding both Kavanaugh and Ford in an ordinary court discovery, one can pass judgment only with humility and caution. But patterns emerged. Ford answered questions obliquely. She resorted to abstraction (“Indelible in the hippocampus is the laughter”). She claimed not to remember incidents of recent weeks. Much of her corroborating evidence was either generated by herself (she said she had mentioned the incident in a 2012 therapy session) or easily accessible in the public domain. “A fabulist likely would not know,” writes Kavanaugh foe Benjamin Wittes, “of Kavanaugh’s friendship with Mark Judge and their propensity to drink beer together.” Perhaps not, but a hard-working paralegal for one of the law firms working pro bono to do opposition research on Kavanaugh would have no trouble finding Judge’s books, in which that friendship is described.
The grounds for rejecting Kavanaugh have shifted steadily. First it was the incident alleged by Ford. Then, second, as the evidence proved underwhelming, it was whether the taint of having been accused of such an incident compromised the perception that he would be a fair judge. Then, third, it was the question of whether Kavanaugh’s minimizing the seriousness of his drinking had constituted perjury. Fourth and finally, it was whether his outburst at the committee showed a partisanship that was evidence he lacked the “judicial temperament” to serve on the Court. Whether Kavanaugh’s attacks on the Democratic members of the Senate panel constituted partisanship is a trickier factual determination than it appears at first. Is an accusation of partisanship partisanship? Such accusations are often leveled by people who distrust both political parties.
Kavanaugh’s foes were comfortable voting against him on the basis of temperament. The question is not “whether he’s innocent or guilty,” said Cory Booker. “I am emphatically not saying that Kavanaugh did what Ford says he did,” says Wittes. “The evidence is not within 100 yards of adequate to convict him. But whether he did it is not the question at hand.”
What is that supposed to mean? This amounted to saying that Brett Kavanaugh lacks a “judicial temperament” because he objected to being summarily executed following a show trial. If you permit the criteria of culpability to shift, then you have the circular logic typical of totalitarian regimes. Just as there are people famous-for-being-famous, now there are people guilty-of-being-accused.
Suddenly there are two parties in this country: There are Kavanaugh conservatives and Booker Democrats. Maybe this will change. For now, those who claim to be weighing the balance between the two are obtuse, nostalgic, or trying to persuade their old comrades not to shoot them in the back as they make their way towards enemy lines. Americans of all political persuasions have woken up this week—some with exhilaration, some with despair—to the realization that, as the essayist Midge Decter once wrote, they are going to have to join the side they are on.