Thursday, October 04, 2018

Kavanaugh and the Manly Man's Culture of Life Without Consequences

by Neil H. Buchanan

[Note to readers: My latest column on Verdict, "The Kavanaugh Travesty: A Roiling Brew of Alcohol and Entitled Self-Righteousness," is now available.  I mention it briefly in my column below, but it is a stand-alone piece that I hope many of you will read and possibly even enjoy.]

Saturday Night Live's lampooning of Brett Kavanaugh's September 27 testimony was hilarious, with Matt Damon perfectly depicting Kavanaugh's extreme anger, childish petulance, and blatant lying.  Even so, they missed an opportunity -- an opportunity that was suggested not by a comedic genius but by CNN legal analyst Jeffrey Toobin.

Toobin pointed out after the hearing that, if Christine Blasey Ford had been the unhinged, shrieking, self-pitying witness that Kavanaugh was, she would have been immediately dismissed for lacking all credibility.  And that observation has led me to imagine how SNL could have brought that alternative reality to life.

Imagine juxtaposing the real testimony from Blasey and Kavanaugh with imagined testimony by, say, Kate McKinnon and Benedict Cumberbatch, with the imaginary Blasey screaming and accusing everyone of a conspiracy while the imaginary Kavanaugh calmly but emotionally lays out his story.  Then they could have had Melissa McCarthy play a purple-faced Senator Amy Klobuchar mirroring Lindsey Graham's operatic performance, screaming at Republican senators and sarcastically attacking their motives.

That alone is an interesting thought exercise, but what would bring the point home would be to then contrast the real cable-news reactions to the testimony with reactions to the alternative reality.  In the real world, people talked about how believable Blasey was, but right-wing pundits were still backing Kavanaugh.  In the alternative world, left-wing pundits would stare ashen-faced into the camera and say, "I can't defend what Blasey just did.  And Klobuchar?  It's over."

It is sometimes difficult to depict the double standard under which gender issues play out in America, so this would have been a particularly helpful way to show that only a man could do what Kavanaugh did and still maintain any public viability.  If a woman had done even a fraction of that, the sexist presumptions that women are too emotional would have kicked into high gear.

But even with Blasey's impressive performance and Kavanaugh's (largely scripted) meltdown, as of this writing it seems likely that Kavanaugh will yet be confirmed to the Supreme Court.  What can we learn from this?

That Blasey was initially treated respectfully is a testament to the slow but notable progress that America has made on gender issues.  Because of her obvious credibility, the Republicans' strategy has essentially been to ignore her entirely and to defend Kavanaugh.  As I described it in a column earlier this week, Republicans have mostly not been saying, "I don't believe her," but are instead saying, "I believe her, but I don't care."

How to defend the indefensible?  Kavanaugh's backers have tried to excuse his anger by saying, "Wouldn't you be angry, too?"  Again, that would never have worked for a woman, but we can put that aside for a moment.  As a colleague pointed out to me, our legal system expects people whose lives truly are "in ruins" -- criminal defendants, including those wrongly accused -- to act like grownups.  If any defendant were ever to do in a courtroom what Kavanaugh did in front of the Senate, he would be cited for contempt or worse.

Yet Kavanaugh gets a pass for being "passionate" about his innocence?  In a job interview for a lifetime seat on the highest court in the land?  He should not, which is why I joined over a thousand other law professors in co-signing a letter published in The New York Times saying that Kavanaugh should not be confirmed because of his obvious inability to uphold even the minimal standards of impartiality and judicial temperament required of a judge.

Some conservatives have extended that weak "But he feels wronged!" defense by -- in a move that Kavanaugh himself would surely admire -- conveniently rewriting history.  The Washington Post's Kathleen Parker, for example, acknowledged that Kavanaugh "was certainly rather animated last week, but wouldn’t you be, too, if your character were suddenly scrutinized for hours in a public forum?"

Leaving aside whether "rather animated" adequately describes Kavanaugh's face-contorting fury (as well as, again, the obviously gendered double standard), what this formulation ignores is that Kavanaugh came out of the gate in full rage.  He had not yet answered any questions about his calendars or his problems with drinking when he read his prepared vitriolic remarks.  He went from zero to raging maniac in a matter of seconds.

Even so, it has still been true that the Republicans had mostly left Blasey out of the story, which was a blessing.  But there is no need to ask whether this was a genuine breakthrough moment, because Donald Trump is still Donald Trump.  After managing to at least minimize his fundamental self, he ultimately could not stand it any more and mocked Blasey for supposedly not remembering anything.

That was bad enough, of course, but what made it worse was that the White House press secretary defended Trump by saying that the had not mocked Blasey at all but was merely "stating the facts" -- even though he managed to mangle the facts beyond recognition.

And of course, we now know that the FBI investigation that Republicans reluctantly authorized was a sham, and Mitch McConnell is planning a confirmation vote for tomorrow.  That might or might not happen, and Kavanaugh might or might not end up on the Court, but there are lessons to be learned from this, no matter the result.

In my new Verdict column, I examine Kavanaugh's lies in two contexts.  First, I talk about how I, too, "like beer."  The problem -- for Kavanaugh, for me, and for anyone who likes to drink alcoholic beverages -- is that alcohol affects memory.  Kavanaugh set himself up at least for mockery -- and perhaps for failure -- by taking a facts-be-damned approach to defending his own image of himself as a man beyond reproach.  The reality is that every one of us who has had as much to drink as Kavanaugh has admitted to drinking (on multiple occasions) cannot be sure of everything that we did and did not do.

Why did he deny reality?  The second part of my argument is that Kavanaugh represents a subset of the academic elite.  The academic elite includes people not only like Kavanaugh but also people who "worked their butts off" and attended elite institutions but were not destined to do so.  People like Kavanaugh, while not the wastrels of "trust fund baby" infamy, believe that they deserve to be treated differently from everyone else because they have been told for their entire lives that they are simply superior to everyone else.

In other words, the "I did well enough at a demanding prep school to get into Yale" line is not merely a statement that a person is worthy of the best jobs because of his academic achievements.  Far too many people have academic records that match or exceed Kavanaugh's for him seriously to imagine that he is owed a Supreme Court seat on that basis alone.  People who have from birth absorbed the message that they will rule the world (if they check the admittedly non-trivial boxes on their lifetime resume) come to believe that they can live life without consequences because they are destined for greatness, no matter what.

One can see this attitude in the Ivy League kids whom I taught who, for example, would joke about having gotten drunk the night before a paper was due but then said that the professor "was being a dick" when he did not believe the lies they told in order to be given an extension.  I have watched such students come to believe their own lies, even as they laugh about them, because buying into the lies allows them to deny that they are doing anything wrong.  The want to say that they follow the rules even as they resent and flout the rules.

But of course the story is about more than the privilege that a subset of the ruling elite takes as their birthright.  After Trump's swipes at Blasey at his rally, he launched into a creepy monologue about an aggrieved young man whose life has been ruined by some lying woman.  Cynically, Trump framed it as a boy talking to "Mom," saying tremblingly that he has been wronged.  That the mother might herself have been sexually harassed or assaulted, or that the boy's sisters might be denied jobs or promotions because of the good-ol'-boys network that Trump champions, is obviously never acknowledged.

This is not only about the conservative self-perpetuating elite, then, but about all men.  As many commentators have pointed out recently, we are now seeing what happens when men sense that their presumed primacy in life might be eroding -- even by just a bit.  I recently wrote about the controversy at Ohio State, where the head football coach was given a slap on the wrist even after it turned out that he had ignored spousal abuse by one of his longtime assistants and even after it became clear that the head coach had sought advice on how to destroy evidence.

And, hey, the Buckeyes are now #3 in the polls, so who cares if a pregnant woman was thrown up against a wall while the men protected each other?  Why should a coach face consequences when his friends have his back?

I continue to believe that it will not at all matter to future Supreme Court jurisprudence whether Kavanaugh joins the Court or one of his ideological clones takes his place.  I also suspect that confirming Kavanaugh will harm Republicans in the midterm elections next month.  Even so, it would be impossible to watch the world validate Kavanaugh's presumption that he is untouchable without feeling sick.  It is not just women who deserve better.  It is everyone who thinks that the same rules should apply to everyone.


Joe said...

Someone who doesn't allow comments critiqued the letter various professors on this blog have signed:

Maybe, law professors can email him. Or, just let him be, I guess.

Shag from Brookline said...

Assuming the hit jinks drinking, partying culture of the early 1980s at Georgetown Prep that has surfaced from the Senate Judiciary Committee Judge K confirmation hearings, what did the parents of their teenage boys know about such culture and their sons' possible involvements, and when did they know it? And how did these parents react to what they eventually learned, assuming they learned of such before the Committee hearings? I understand that in the early 1990s Georgetown Prep and other area private schools notified students' parents of areas of concern with such culture.

GLetts said...

I believe that those that drink to excess and can’t admit to the harm should relinquish there seat at the bench, especiallly to the high court. Their judgement is impaired while they drink and do succumb to strange reasonings and understanding because of their problem. I don’t want someone like that at the bench let alone the high court. I have seen the affect that drinking can do to the judgement of those that drink and drink to excess.

Shag from Brookline said...

Was Judge K's OpEd in WSJ a first step? Or the last step once confirmed?

Shag from Brookline said...

Or is this just the Judge K "two-step"? Wake up Little Suzy. And Liza, Liza, Alaska may turn blue. And is the courageous Sen. Flake merely the pluperfect fluke? And how about Committee Chair Grossley (Corndog, Iowa)? And the less said about Sen. Lindsey Graham (Cracker, SCar).

Regarding the FBI investigation micro-managed by the White House, what could be worse than this verse:

F.B.I...I, I, I, I!

Is the F.B.I.
In disarray
Under Director
Christopher Wray?

(With apologies to the late Ogden Nash)

Patrick S. O'Donnell said...

I find it more than plausible that Kavanaugh fancies himself as deserving of the privileges and feelings of superiority that are often part and parcel of being a member of the entitled meritocracy in this country, although I suspect he subscribes to the principle of noblesse oblige by way of easing his conscience, hence the frequency of first-person references (as a possessive pronoun) to a “lifetime of public service,” the “coaching of young girls” and so forth. In addition, we might plausibly if not reasonably infer that he believes his feelings of contempt, anger (if not rage), and defiance (for example) are justified because the accusations of sexual assault and accounts of his drunken behavior have spilled over onto and thus sullied the images of sanctimonious purity with which he and his supporters have painted his roles as a “son, husband and dad.” That portrait, in conjunction with the “good name” his legal career has—in both his mind and the minds of his supporters—etched in stone, serve as sacred artifacts or insignia of his meritocratic entitlement. Still, one wonders how a person of his intelligence and “fine breeding” as it were, can live in good conscience with an abundance of evasions and lies that typically add up to denial and self-deception.

I’ll hazard a guess: the moral psychology intrinsic to substitutionary atonement doctrine in Catholicism which, I believe, is intimately tied to the Church’s teachings and practices of sacramental confession requiring “disclosure of sins (the ‘confession’), contrition (sorrow of the soul for the sins committed), and satisfaction (‘penance,’ i.e. doing something to make amends for the sins),” are at least a necessary condition to a possible if not plausible psychological explanation. Assuming Kavanaugh is a “good Catholic,” the moral psychology of substitutionary atonement in conjunction with the act of confession permits him to view his past behavior in a far more forgiving and excusing light than the rest of us (at least those of us who do not believe in substitutionary atonement or practice sacramental confession) and again, in his mind at least, thus serves to rationalize or pardon his expressions of anger and defiance at those believed responsible for soiling the sacred signs associated with his “good name”(as well as the conspicuous lapse in the kind of judicial temperament one associates with a candidate for the Supreme Court). One result of putting things in this psychological and theological framework is that it suggests or implies the possibility that Kavanaugh does not see himself as truly evading moral responsibility, for such responsibility as is relevant was assumed and faced in the theological precincts and moral psychological context of his Catholic faith.

Shag from Brookline said...

To me it was telling that Judge K's sort of apology in his WSJ opinion piece said:

"You can count on me to be the same kind of judge and person I have been for my entire 28-year legal career."

Judge K's legal career on the DC Circuit had a public paper trail available for review by the Senate Judiciary Committee and the public. But Judge K's legal career prior to his earlier confirmation had a significant paper trail, much of which was not publicly available, particularly for his service as WH secretary to George W. Bush, more than 90% of which was not made available to Committee members and the public.

So Committee members, especially Democrats, and the public lacked information on a significant portion of Judge K's "entire 28-year legal career.

Further tellingly, Judge K failed in his apology to address his hearing testimony on his drinking habits in high school, college and law school that preceded his "entire 28-year legal career" that was less than fully forthcoming.

Patrick S. O'Donnell said...

Incidentally, I tried to post the above comment at your Verdict column about 7 hours ago but it never appeared.

Neil H. Buchanan said...

Thanks to all for comments. FYI, I never read comments on my Verdict columns. The message boards on Verdict often fill up with (sadly) standard internet trolling that makes it pointless to read. Here on Dorf on Law, we very occasionally are visited by problem children, but the conversation is overwhelmingly constructive and engaged.