Law & the Courts

The Battle of Brett Kavanaugh and the Joker’s Two Boats

Protesters march outside the Supreme Court in Washington, D.C., September 27, 2018. (Joshua Roberts/Reuters)
This confirmation fight has stoked deep divisions.

No matter how rancorous our politics grows, we can at least be confident that ordinary Americans would not commit mass murder. Or would they? Maybe the Joker was right after all. Maybe the climax of The Dark Knight, from ten years ago, looks hopelessly naïve today. “What were you hoping to prove? That deep down, we’re all as ugly as you?” Batman asks the Joker in the final moments. “You’re alone.” I wonder if the Joker would feel so isolated today.

The Joker’s plot struck him as infallible: He’d rigged two fully loaded ferries with explosives and put onboard each boat a remote detonator with which to blow up the other boat. If neither boat blew up its neighbor, the Joker promised to destroy both at midnight. To make the temptation to mass murder irresistible, he arranged that there would be a social chasm between the populations of the two boats: One contained ordinary commuters, the other convicts. The convicts, the Joker figured, hated the ordinary citizens. And the ordinary citizens likely hated the convicts even more, maybe even considered them subhuman. In an offhandedly chilling moment, a businessman on the commuter ferry argues, “Those men on that boat made their choices. They chose to murder and steal.” Wait a minute — “to steal”? You not only deserve to be locked up but to forfeit your life if you steal?

It’s a throwaway line that illustrates how easy it is to dehumanize a population when you feel under threat. But the businessman, uncertain of himself, declines to push the button. On the other boat, a prisoner takes the remote and throws it overboard. This man is a hero who saves hundreds of lives. Yet the script doesn’t even give him a name. He’s simply an American. Whatever mistakes he may have made in life, he isn’t a monster. The Joker can’t nudge him into becoming one.

Christopher Nolan’s movie was on to something about the American character: There is more holding us together than tearing us apart. At least that was so in 2008. Some would say dehumanizing Muslims became a fact of life in America after 9/11. I’d say something close to the opposite happened. Americans were scared, but we rejected the impulse to treat Muslims as a terrifying class of aliens. Such incidents of bias as occurred were limited, scattered. Nothing happened resembling the dark prophecy in the 1998 movie The Siege, in which, after the terrorist destruction of a federal building in New York City that kills some 600 people, Bruce Willis leads an army that occupies Brooklyn and all Arab men are ordered detained in a stadium.

But the American capacity to dehumanize the Other is gaining strength in these fraught weeks, the days of the Battle of Brett Kavanaugh. Picture one boat full of New York/San Francisco/D.C.–based Hillary Clinton–loving pro-choice activists and the other full of rural, Evangelical pro-life Christians and National Rifle Association members. Give each boat a detonator to blow up the other one. Would either group be able to hold off on mass murder under the circumstances devised by the Joker?

I doubt it. We’re more afraid of our political adversaries than at any time in many decades. People who are truly terrified may be capable of acts of great malevolence. People who believe they are acting in self-defense, even preventive self-defense in advance of anticipated attack, might do horrific things. In Modern Times, Paul Johnson explains that the commonly held view of the rise of German Fascism fails to take into account that the anti-Semitism from which it flowed was presented as defensive. Germans were terrified of Bolshevist atrocities in Russia, which had already left 3 million dead by the early 1920s, and they associated Bolshevism with Jews. My point is not that the American Left or Right resembles either the Bolsheviks or the Fascists but that fear of attack can stoke a lethal kind of paranoia. Weimar judges, teachers, and especially historians gave intellectual backing to the Fascists and whipped up the students into a ferocious mob. “The notion that the student body is in some constitutional way a depository of humanitarian idealism,” Johnson notes drily, “will not survive a study of the Weimar period.” Modern Germany, he says,

is an object-lesson in the dangers of allowing academic life to become politicized and professors to proclaim their “commitment.” Whether the bias is to the Left or the Right, the results are equally disastrous, for in either case the wells of truth are poisoned.

We’re getting beyond suspicion and dislike on our American boats. We’re becoming convinced that those on the other ferry are bent on destroying our way of life. We note with alarm the other side’s vast and growing power: The Hillaryites have an iron grip on the popular culture, the media, and most of the courts. Increasingly, they enjoy corporate America’s support, with the leadership of Silicon Valley and Starbucks and Nike turning overtly progressive. The very channels of communication — Twitter and Facebook and Google — are in the hands of progressives who could at any moment simply shut down most of the Right’s speech. On the other hand, allies of the Evangelicals and NRA members control most of the elected offices and have plenty of old-fashioned weapons. Half of NRA members own five firearms or more.

The Left’s reaction to claims made against Judge Kavanaugh is revealing. Christine Blasey Ford’s story, while not preposterous, is undeniably shaky. The details have changed repeatedly just since July. She not only has no corroboration, she has anti-corroboration: All others she has placed at the party in question either don’t remember anything like it or outright deny her version of events. Nevertheless, the Left’s reaction to her testimony is not only that her story is true but that it’s obviously true. The underlying thinking, I believe, goes like this: Kavanaugh might overturn Roe v. Wade. Therefore he hates women. Therefore he is an abuser of women. It all fits together so neatly that writers for both USA Today and Time magazine blithely suggested there’s a good chance he is also a child molester. He coaches girls’ basketball, doesn’t he? The swine.

The Left — the Democrats and their public-relations arm in the mainstream media –thinks that the abortion rights they cherish above all else are under siege, that Kavanaugh is about to blow up the foundation of their politics, and so they do not hesitate to seize upon any smear as a weapon. Why hesitate to blow up the other ship when you’re absolutely convinced the people on it will blow you up as soon as they get the chance?

The wells of truth, in Johnson’s phrase, are once again being poisoned. The New Yorker ran with a story about Kavanaugh that came nowhere near meeting its ordinarily rigorous standards in which the accuser herself wasn’t sure whether what she alleged had happened and none of the witnesses interviewed corroborated her story. NBC News breathlessly ran a story built around details of an anonymous letter that was the written equivalent of a crank call. CNN stuck with a story about an alleged Kavanaugh assault aboard a yacht in Rhode Island even after the person spinning that yarn publicly recanted. Michael Avenatti publicly advanced a ludicrous and unsubstantiated accusation from a highly untrustworthy woman that Kavanaugh was mixed up in gang rape. CNBC, Vanity Fair, and the Daily News, among many other media outlets, treated this Weekly World News–style claim seriously. On Monday, Avenatti’s client recalibrated her claim and now offered merely that she had seen Kavanaugh standing near the punch and handing out red Solo cups at a party.

With so much hysteria being whipped up by trusted media outlets, the potential grows for widespread political violence. “I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown,” my colleague Michael Brendan Dougherty wrote last winter, explaining that “Kennedy deals out victories and defeats to each side. . . . His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.” But if the Supreme Court should tip solidly right, what norms would not become disposable to the Left?

Talk of California secession or breakup clouds the air. Leading progressive voices frankly state that our constitutional system has failed us, citing the Electoral College and the disproportionate influence of low-population states in the Senate. Vague cries to “rise up” don’t look so vague when masked Antifa demonstrators join the party. “We must not be enemies,” Lincoln counseled us in his first inaugural address. “Though passion may have strained, it must not break our bonds of affection.” Anyone feeling confident today that our bonds of affection are stronger than our passions?

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