Law & the Courts

The Silver Lining of the Kavanaugh Debacle

Demonstrators protest Supreme Court nominee Brett Kavanaugh in front of the office of Sen. Susan Collins on Capitol Hill, September 24, 2018. (Joshua Roberts/Reuters)
It reminds us that such maelstroms of illogic and corruption are rare in our judicial system.

Watching the events of the Brett Kavanaugh confirmation battle unfold over the last ten days has been an extraordinary experience. While mostly dispiriting, it also has reminded us how lucky we are to have the system of government that we do.

Progressives and their friends in the mainstream media have been twisting themselves into logical pretzels in an effort to pronounce Kavanaugh guilty, despite a manifest lack of supporting evidence to condemn him. Maybe some new detail will emerge this week that will indicate the judge’s culpability. But for the last week, the arguments from the left have been reminiscent of Sir Bedevere’s “logic” against the witch in Monty Python and the Holy Grail: “If she weighs the same as a duck, she’s made of wood. And therefore, she’s a witch!”

I strongly believe this is a consequence of motivated reasoning. Rather than starting from a premise and logically working one’s way to a conclusion, one starts from a premise and a conclusion and then find the reasons that connect the two.

The most extreme version of this kind of thinking was on display Sunday on CNN’s State of the Union, where Hawaii senator Mazie Hirono told Jake Tapper that she was inclined to deem Kavanaugh guilty because of his legal opinions. “I put his denial in the context of everything I know about him in terms of how he judges his cases.” In other words, Kavanaugh is not entitled to a presumption of innocence because he does not share Hiron’s political views.

Egads. Like I said, dispiriting. But there is a comfort to be taken from this last week.

This sort of prejudicial illogic is freely employed in all manner of political questions, by both sides — although rarely in as disgusting a manner as Hirono offered. That is baked into human nature. James Madison said it well in Federalist 10:

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.

That is exactly what we are seeing here. The fact is that nobody can possibly hope to be impartial regarding Kavanaugh because we all have an interest in the outcome. Our judgments are biased and, at least in the case of Hirono, our integrity is corrupt. This happens all the time during presidential campaigns. What makes this situation unique and especially sordid is that it has to do with a judgeship that was offered to Kavanaugh, rather than sought out by him, and it regards allegations of sexual misconduct, which rightly impose a high degree of social calumny when proven to be true.

But, thankfully, our courts are mostly free of this kind of biased reasoning and corrupt intent. And we should remember that our judicial system need not have come down to us in this manner. The common-law tradition developed slowly over the centuries, creating rules for the evaluation of evidence, clarifying the rights of both the accused and the accuser, separating the power of the state between its prosecutorial wing and its judicial wings, and empowering neutral juries to be the final arbiters of truth.

So perhaps we should also be heartened by the Kavanaugh fiasco, for all its grotesquerie, because it reminds us that such obscene trials in the court of public opinion are rare. Does this mean that our criminal-justice system is everything it should be? Certainly not. I would go one step further: Conservative public intellectuals should make common cause with the African-American community to tamp down on the governmental abuses that affect communities of color, in particular pushing for reform of the criminal-justice system.

That being said, the Kavanaugh fiasco nevertheless demonstrates just how much worse our judicial system could be. Can you imagine if the irrationality of Sir Bedevere or the corrupt motives of Senator Hirono were to reign supreme? Society as we know it would cease to exist.

This whole affair is another illustration of why an independent judiciary is essential to republican government. I have long bemoaned the extent to which the courts have taken on political powers that do not belong to them under the plain language of the Constitution, but I do not believe in judicial term limits or judicial elections. It is important to keep judges outside of social, economic, religious, and cultural disputes so that their capacity for fair judgment remains unbiased and, even more important, so their integrity is not corrupted. We have to keep the umpires from having a stake in the game, which means that an independent judiciary is essential.

I do not know what will happen with the Kavanaugh hearings this week, or even whether they will occur. But I do know that we live in a republic where these obscene trials in the court of public opinion are rarely determinative. And for that, I remain grateful.

Jay Cost is a visiting fellow at the American Enterprise Institute and the Center for Faith and Freedom at Grove City College.


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