On the Brett Kavanaugh affair


I have struggled greatly with the extremely complex issues that are intertwined in the nomination of Brett Kavanaugh for the Supreme Court.  We are currently, as a society, trying to have a simultaneous conversation about sexual assault allegations, credibility, due process, feminism, bro culture, the limits of memory, substance abuse, forgiveness, liberal vs conservative politics, power, fairness, and justice.

The interaction of all of these concepts is nuanced, not linear, and therefore not subject to the easy black/white, oversimplified arguments that have unfortunately been offered by those in Congress, parroted by the media, and repeated uncritically all over social media.  "Whose side are you on, anyway?" seems to be the question of the hour.  "There are no sides" is the correct answer.

Up until tonight, I did not rest easy with my opinion, as there are so many layers of shit to cut through. However, I must give credit to my friend Randolph Hencken for his great post which helped me clarify things more than any other that I read.

So, I have changed my mind since yesterday and I now believe the Kavanaugh nomination should be withdrawn, despite some of the reasons below, because he has shown himself to have a temperament unfit for the office.  

For those interested, I make an attempt below to untangle all of the issues, one by one:

  • On the allegations - I believe that Dr. Ford believes that she is telling the truth.  However, I am deeply troubled by her inability to remember where the incident happened, when it happened, who was there, who took her there, and who drove her away.  I am deeply troubled that her key witness, who also happened to be her best friend, cannot corroborate her story (I am aware that her best friend "believes" her, but cannot remember any such incident.  "Believing" is not corroboration).  36 years is a long time for memories to fade.  I believe that something happened to her, at some time, and it may or may not have involved Kavanaugh.  What she described should never happen to anyone, and I am deeply sorry that she had to go through it and what she is going through right now.
  • On sexual assault - It is indisputable that there has been a history of rape and sexual assault not being handled as it should.  It is completely understandable that women have often been afraid to come forward, for many reasons, reasons that are to some degree still prevalent in society.  As a result, there is a justifiable collective anger about this.  We should be doing everything we possibly can to encourage women to come forward and we should be aggressively prosecuting those who are sexual predators.
  • On due process - Unfortunately, I do not find the new standard that we are test driving to be workable.  Lindsey Graham was right when he said that the current allegations neither meet the current standards of "beyond a reasonable doubt", "preponderance of the evidence", nor even the minimum standard to get a search warrant.  I am very sure that we cannot move forward together as men and women to solve this problem with the standard that "Accusations are damning, accusers may not be questioned, and men may not defend themselves".  It is not due process to say that "each person gets to tell their story and then we decide who to believe".
  • On bro culture - I think it is very unfortunate that Kavanaugh seems to have been given the, perhaps unfair, status as stand-in for society's current hatred of rich, white, privileged, party-jocks - a group I don't have a particular affinity for either.  Bro culture is a real thing, and it sucks, and it needs to be eradicated.  During my freshman year in college, I rushed a fraternity, saw what "bro culture" was first hand, and I quit the day after I was initiated.  The only reason I bothered to get through the pledge semester is because they tried to run me out after they found out I didn't fit in, and I wasn't going to let the bastards beat me.  I have a very clear memory of my pledge brothers throwing rocks at my car several weeks later.  Though, perhaps relevant to the current situation, I couldn't say for sure how many or which fraternity brothers were involved in throwing rocks at my car.  So this "toxic masculinity" definitely exists and I have seen it first hand.
  • On the limits of memory and substance abuse - We have seen a string of articles from experts explaining that memories are often false. What we often believe about the past is something that our mind has simply made up after the fact. I have seen arguments that traumatic experiences could possibly increase the intensity of memories and simultaneously cause other memories to fade.  I have seen arguments that traumatic experiences make it more difficult to retain memories at all.  It is entirely possible that either Ford or Kavanaugh have false or mistaken memories.  It is also true that alcohol can cause memory loss.  Ford has admitted to having at least one drink on the night in question, and if Kavanaugh was present he probably had at least one or more.  I find the attempts to tag Kavanaugh with the tag "alcoholic" to be irrelevant, as would they be if they were directed at Ford.
  • On Kavanaugh - I believe that Kavanaugh believes that he is telling the truth in that he does not recall the alleged incident with Dr. Ford.  It may be because he's innocent; it may be because he was too drunk to remember; it may be because the incident happened differently than either one of them remember. However, I do believe he's clearly lying on some small details:  about some items written on his calendar, about his drinking habits, about one or two supposed inside jokes.  I believe that any normal person would tell the same small lies when presented with such accusations if they thought they were innocent.  That doesn't make it right, it just makes it understandable.  I believe that his behavior since college has been not only appropriate but admirable, as far as I can tell, and that should count for something.  Whatever that "something" is remains up for debate.
  • On Congress and politics - I agree with Randy that the US Congress is stocked with straight up psychopaths, on both sides.  However, I am particularly appalled by the behavior of the Democrats.  I believe they have cynically and maliciously used Dr. Ford and perhaps the other accusers for their own ends.  I see rage impersonating justice, and a guilt by association impersonating fairness.  I believe the plan has been all along to leak the identity of Ford at the last moment in order to throw the nomination into jeopardy and run out the clock.  The hope is to refuse to fill the seat until the 2020 presidential elections.  I believe the ridiculous attempts at character assassination have been reprehensible.  Avenatti's complete disregard for any person or ethical principle whatsoever leaves me speechless.

But we are not looking for a normal person for this job.  The supreme court is one of the most powerful posts in the United States, and therefore the standard should be higher.    

The leaders who we want should be courageous and be able to rise above the partisan warfare that we find ourselves in.  The leaders who we want should be able to get out of the trench warfare mentality, the desire to hit back at the other side twice as hard, and the tendency to oversimplify and turn things into "us vs them".

Kavanaugh's anger and temperament during his opening statement was understandable but deeply disappointing.  His partisanship was tactically and politically smart but unworthy of someone applying to be a supreme court justice.

If we are ever going to find a way out of this horrible political mess, we need Lincoln, and Kavanaugh is Sherman.  If he is confirmed, he will take with him a deep grudge and a likelihood to usher us into a new era of total war between right and left, if we are not already there.

About the author

Jeremy Tunnell
By Jeremy Tunnell