The Corner

Law & the Courts

How America Can Recover from the Kavanaugh Confirmation Controversy

A demonstrator makes a speech in front of the Yale Club during a protest and march against the Supreme Court nominee Brett Kavanaugh in New York City, October 1, 2018. (Jeenah Moon/Reuters)

One of the most haunting sentences I have read in recent years is in a memoir of The Troubles by the distinguished journalist Kevin Myers. In Watching the Door, he referred to the nadir of the violence in Northern Ireland. A stage had been arrived at, Myers said, in which people had utterly different perceptions and interpretations of the facts happening around them, interpreting their own versions of events through the lens of their own sectarian side. Even words had become meaningless. “In the absence of an agreed reality,” Myers wrote, the province had gotten to the stage where truth was “whatever you’re having yourself.”

I have been thinking of that phrase in recent days watching American public life reach this new nadir with the Kavanaugh hearings. Like a lot of others, I am left wondering how, if at all, America can rise from this situation. Though I’m not an American citizen I have been testing my own cynicism and distrust levels about various aspects of American life, and both strike me as worryingly high.

Take the role of special prosecutors or special counsels. When they are appointed, I assume that they will find something, whether the person they are sent after has done anything or not. Though Scooter Libby has now — rightly — been pardoned by President Trump, his case still resonates because it demonstrated a corrupt system: a system that can find anyone guilty of anything once it gets going. Even when — as in the case of Libby — the source of the alleged offense was known to be somebody else almost from the start, and after it had become clear that another political motivation was at work (in that case an effort to bring down the vice president). The behavior of special prosecutors in America demonstrates a level of systemic corruption that would shame Zimbabwe.

Yet the practice goes on, and any overriding principle gets lost in the partisanship. When they come after your guy, you holler; when they go after your opponents you wish them well. Even the data can be presented any way you fancy. Back in June, CNN reported that the American public thinks the Mueller investigation “is serious and should continue.” The same month, Politico reported that opinion polls show Mueller’s public image at “an all time low.” You choose your truth. I’ll choose mine.

The same is even more clearly the case with the Kavanaugh process. The moment the hearings started, anyone might have braced to expect the worst. And just as the generation that witnessed the treatment of Clarence Thomas and Robert Bork will never forget those outrages, so everybody who has watched this farce of a process will struggle to keep any faith in the nomination process or in the Senate. One portion of the country will finish this circus persuaded that a serial abuser has been elevated to the Supreme Court. Another portion will leave it persuaded that a politically motivated campaign has been swung into motion with the lowest tools imaginable.

It is not just the allegations against him and the manner of their arrival that is so striking, but the trap awaiting any attempt by Judge Kavanaugh to defend himself and his family once the process of destruction got underway. Like any person in the process of having their life destroyed, Judge Kavanaugh might be expected to respond. And here the president’s opponents were able to ensure his nominee got into the position that chess aficionados will know as “zugzwang” (a position in which every potential move can only make the situation worse). As Roger Cohen demonstrated over the weekend, they were on hand — should the judge choose to forcefully defend himself — to run their pieces saying that Kavanaugh showed his dark, angry side and is unfit for office. But if he showed insufficient passion, they were also ready with their pieces (and ran them later) accusing him of showing a detached, cold inhumanity, concluding that he is unfit for office.

From this distance, it seems to me that it is not only Judge Kavanaugh who has been put in “zugzwang,” but the whole nation. Every which way it now turns — at the political and judicial level — will only make the situation worse. For instance, people might choose to sink even lower than the depths that their opponents are plumbing. Or people could try to take the moral high ground, which at this stage would be akin to allowing a political massacre.

The only obvious upshots are an ever-increasing layer of public distrust and cynicism and an ever-greater dearth of sane people willing to volunteer for any role in public life. But as Kevin Myers showed, for a society not to spin its way down into any and every madness, it has to have at least some agreement on basic mores and facts. It is hard to find an area of American public life that does any longer. And that is a fact that should worry America’s friends as well as its citizens.


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