I can still remember snippets of watching Anita Hill and Clarence Thomas testify 27 years ago. At the time, Hill’s stoicism under fire was impressive. She didn’t devolve into a puddle of tears, but held her own under fire. Thomas’ scorched-earth response, “a high-tech lynching,” was his only way out. The rest is history.
The reopened hearing for Brett Kavanaugh, on the other hand, happened at a different time in history, a time when a confluence of influence created the worst possible moment to discern the hearing’s putative goal, to determine whether Kavanaugh, as a teen, sexually assaulted Christine Blasey Ford. Not only was Kavanaugh feared as the justice who was hated as he would “cause women to die,” a nominee of a president who was “literally Hitler,” but at the junction of #MeToo and a national need for emotional catharsis.
The hearing was a botch, as anyone who wasn’t married to the mob knew it would be. The “scary sex prosecutor” questioning Ford was a dud, scoring no points and floundering through the examination with no discernible purpose. In fairness, the mechanics of five minutes of question, following by a Democratic senator giving a speech about beatification, wasn’t conducive to meaningful questioning, but it was still Rachel Mitchell’s job to find a way to make it happen. She didn’t.
Notably, Mitchell was unceremoniously jettisoned in the second half of the hearing when Sen. Lindsay Graham came out on fire, attacking the attack on Kavanaugh. How that could be, after having ceded his time to Mitchell, remains a mystery of politics.
And politics it was, in its most perfect, and thus most horrible form. What’s shocking about this is the depth of naivete on both sides of the question. Or perhaps rather than naivete, delusion. Not only have we failed to mature sufficiently as a nation to grasp that our reliance on a universe of excuses is ineffective to convince anyone who isn’t already inclined to agree with us, but there is no skepticism at all.
The hearing was a show. It was put on for the benefit of public consumption by the groundlings, choreographed by its respective teams. And the unduly passionate of both sides ate it up, believing this melodrama was real. Every tear was their tear, every pain was their pain, and the teams mustered their most mindless passion in support of their hero or heroine. If ever people proved themselves undeserving of the respect of reality, it was the reaction to this hearing.
There was neither winner nor loser, nor was there any chance there would be. Neither side was taking any chances their lead actor would blow the game, and each played their role with the dedication that would make Oscar smile. Wait, you say. These weren’t just spontaneous displays of raw, totally justified human emotion happening right before our eyes? Grow up.*
This doesn’t make either witness a liar or insincere, but if for a moment you think this dance wasn’t completely choreographed, you’re deluded. Nothing was left to chance. Nor should it have been. To have done any less would have been insane and incompetent. To not realize this, however, is childlike. We are a nation of blubbering fools, believing what they put on the TV screen is real.
Did it work? The question for the senators was whether the hearing gave any Republican cover to back off confirmation of Kavanaugh. The question for the public was whether their side’s tears were saltier than the other side’s tears. The American Bar Association backed off its endorsement of Kavanaugh, to whom it gave a “well qualified” rating, but that moves no one. Editorial pages sided where they usually side. Nick Gillespie at Reason asked the question that no show hearing would answer.
We know where political partisans stand, but what about the rest of us who do not identify primarily in partisan terms? The latest Gallup poll on party identification finds just 26 percent of us identifying as Republican and 27 percent as Democratic. Forty-four percent call ourselves independent, a near-record high.
But there is a different problem, raised in the switch in time of American Magazine, which had supported the Kavanaugh confirmation before. Now, it does not.
What is different this time is that this nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court. It now involves the symbolic meaning of his nomination and confirmation in the #MeToo era. The hearings and the committee’s deliberations are now also a bellwether of the way the country treats women when their reports of harassment, assault and abuse threaten to derail the careers of powerful men.
While acknowledging that this hearing was no substitute for an adjudication of the allegations of sexual assault, they nonetheless recognize that it’s no longer about a judicial nomination either.
If this were a question of establishing Judge Kavanaugh’s legal or moral responsibility for the assault described by Dr. Blasey, then far more stringent standards of proof would apply. His presumption of innocence might settle the matter in his favor, absent further investigation and new evidence. But the question is not solely about Judge Kavanaugh’s responsibility, nor is it any longer primarily about his qualifications. Rather it is about the prudence of his nomination and potential confirmation. In addition to being a fight over policy issues, which it already was, his nomination has also become a referendum on how to address allegations of sexual assault.
Should this be a referendum on how to address allegations of sexual assault? If so, then should the answer not be that accusations be brought to the appropriate forum, the legal system, where they can be treated seriously and decided as effectively as we can? Apparently not. We’ve abandoned the means by which society has established must be used to decide such questions.
Who knows where those who call themselves “independent” stand anymore. The discourse has become so convoluted, so filled with emotionalism and rationalization, that we’re overcome with vehement cries of outrage from the passionate from both sides.
The television show was a winner, “entrancing” as a law prof said, capturing a nation’s need to vent its feelings. There is no place anymore for dispassionate thinking. Maybe it no longer matters who’s on the Supreme Court, as no one will be persuaded by its opinions anyway. The battle has been joined and the tears won, no matter which side you’re on.
*I made the terrible mistake on the twitters of offering the banal observation that Ford was weepy through her opening statement (although she managed to make it through her testimony without a tear), which was surprising if it was tactical (and surely her lawyers fully prepped her on how to effectively deliver her prepared script).
I was wrong not to realize how hot passions were running, but the reactions reflect not merely the depth of tribalistic disagreement, or even the inclination to impute the worst possible motive, but the compulsion to attack as if a twit was the end of the world.