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Farce and Tragedy

eye on the news

Farce and Tragedy

Confirmation bias, politics, and an overcharged Court in the Kavanaugh confirmation process September 28, 2018
Politics and law

On Thursday, American eyes were fixated on a Senate Judiciary Committee hearing. Christine Blasey Ford gave a heartfelt accounting of what she recalled as an attempted sexual assault in the summer of 1982. Judge Brett Kavanaugh defended himself from her charges, attacking not his accuser but the political forces allied against him, in a presentation intermittently angry and tearful.

Both witnesses struck me as credibly relaying their recollections. But people are generally bad at reading the reactions of others, and I have enough knowledge about the shakiness of memories, including traumatic memories, to have less than full confidence that we can ever know what did or didn’t happen that summer in Bethesda, Maryland. I do, however, have confidence in three things.

First, the proceedings are unlikely to change people’s minds. As New York University psychologist Jonathan Haidt described in his 2012 book, The Righteous Mind: Why Good People Are Divided By Politics and Religion, most people make intuitive, emotional decisions and reason backward to support their presuppositions. An NPR/PBS/Marist poll conducted last Saturday through Monday showed that almost two-thirds of Americans had an opinion about whether Ford’s allegations were true—a remarkably high proportion. One’s political affiliation was overwhelmingly associated with one’s view of the facts: 92 percent of Republicans expressing an opinion believed Kavanaugh, and 88 percent of Democrats believed Ford. During the testimony itself, my social-media feed—with a healthy dispersion of opinions across the political spectrum—almost universally suggested a similar level of confident interpretations, replete with confirmation bias.

Second, the senators on both sides of the circus-like proceedings are behaving in nakedly political fashion. The farcical nature of the Judiciary Committee proceedings hardly began with Ford’s allegation but stretched through the earlier hearings on Kavanaugh’s confirmation, when hundreds of leftist hecklers disrupted the committee’s business. It was shortly after Kavanaugh’s nomination that Senator Cory Booker announced that those supporting his appointment were “complicit in evil.” And it was during those earlier hearings that Senator Booker buffoonishly compared himself with Kirk Douglas’s Spartacus character in purporting to defy Senate rules by releasing already-cleared, anodyne emails from Kavanaugh’s days in the Bush White House.

That said, nobody in the Senate comes off looking worse in my estimation than Senator Dianne Feinstein of California, who sat on Ford’s complaint for more than six weeks before turning it over to the FBI on the eve of a scheduled committee vote. The GOP’s chosen special interlocutor, sexual-assault prosecutor Rachel Mitchell, generally treated Ford with kid gloves, but she clearly established the role that the Judiciary Committee’s senior Democrat played in setting up Ford with attorneys and holding the allegation until the eleventh hour. Anyone remotely concerned with fair play and the sensitivities of a sympathetic witness is bound to understand Senator Lindsey Graham’s fierce disapprobation, even if minority Democrats remain understandably piqued by the Republican majority’s refusal to act on President Obama’s last nominee for the same Court.

Third, beyond the #MeToo sensitivities to male sexual misbehavior—from boorish and inappropriate to predatory and criminal—the intense divisions on display are a function of the oversize importance of the Supreme Court in modern American politics. Alexander Hamilton, in Federalist Papers #78, famously dubbed the judiciary the “least dangerous branch,” noting that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” In the early years of the republic, justices often stepped down from the Court; James Madison had trouble even filling a Supreme Court vacancy during his presidency. (Thomas Jefferson’s former attorney general Levi Lincoln and future president John Quincy Adams each turned the appointment down after Senate confirmation.) But today, the Supreme Court stands as the ultimate arbiter of many of our most divisive political disputes—from abortion to same-sex marriage to race-based affirmative action to spending in political campaigns to gun regulations. Republicans and Democrats significantly differ on how they interpret the Constitution and when they think that it should be invoked to override legislative majorities. The power of the Court and the lifetime tenures given justices in the Constitution make the stakes among the highest in the political sphere.

So, neither Dr. Ford nor Judge Kavanaugh has been treated with appropriate dignity and respect. And neither party’s legislative leaders are interested in truth; it’s power with which they’re concerned. But with Congress having long since abdicated its constitutional role to both the judiciary and the executive branch, the federal government’s neutered legislators have little left to do but preen for the cameras. The nominee and his accuser are but pawns in that big game, and our constitutional republic suffers.

Photo by Mario Tama/Getty Images

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