After weeks of controversy, Brett Kavanaugh has been confirmed as a justice on the United States Supreme Court despite allegations of sexual assault against him. These allegations deeply divided an already fractured country. Americans watched both Kavanaugh and his accuser, Christine Blasey Ford, testify before the Senate, and they attempted to ascertain which was telling the truth in the absence of any evidence to corroborate either of their stories of what happened more than three decades ago. One would hope that senators could have worked together to examine the available evidence in a manner that showed respect for all parties involved. In reality, this was far from what happened, as senators from both parties appeared more interested in advancing their own political goals by any means necessary than in making their best effort to discover the truth. Perhaps most outlandish was President Trump’s decision to mockingly imitate Ford’s testimony during a campaign rally, which ought to be condemned by anyone who believes that alleged victims of sexual assault deserve to be treated with respect. Also among the behavior that was on display were attacks from the left that targeted not just Kavanaugh or Ford but large segments of the American population. As we begin to move beyond the hearings, we would do well to pause and consider why these sorts of attacks are so misguided.
The most direct of these attacks came from Senator Mazie Hirono of Hawaii, who said as follows during a press conference:
Guess who is perpetrating all of these kinds of actions? It’s the men in this country. I just want to say to the men in this country: Just shut up and step up. Do the right thing, for a change.
To tell any of her constituents, much less of nearly half of the population, to “shut up” is completely beneath the dignity of the office of senator. As much as Hirono may not want to recognize this, there are men who have been victims of sexual assault at the hands of people of both sexes. There are also men who have spent years or even decades behind bars for rapes they did not commit. In fact, there have been more DNA exonerations for sexual assault than for all other crimes combined. To suggest that it is “the right thing” to blindly believe any allegation without seeing adequate evidence puts innocent people at risk of facing a similar injustice if due process protections are eroded.
Many in the press have seen to fit to bring not just gender but also race into their attacks, claiming that Kavanaugh’s objections concerning the lack of due process in how this has been handled are actually about feeling entitled to the Supreme Court seat because he is a white man. For example, Bryce Covert writes in The Huffington Post:
Defenses of due process aside—this is not a trial but, again, a job interview—he also feels he is entitled to this seat. Such power, such prestige, is his birthright as a white man. Not getting what he wants is the same as losing his very life…
Despite what white men have been led to think for centuries, they don’t have a birthright to positions of power. Alleged abusers like Kavanaugh may finally be facing a reality that has been far too slow to come: their privilege—their gender, race, class, and pristine credentials—never should have, and perhaps someday won’t, entitle them to power they haven’t earned.
First of all, it is not accurate to describe the hearings that took place following the allegations as a job interview, as their sole purpose was to adjudicate whether or not he had committed sexual assault, not to evaluate his qualifications for the job. The earlier hearings that were held prior to the allegations could accurately be described as analogous to a job interview. Had Kavanaugh displayed anger during these hearings when he was asked challenging questions, it might have been appropriate to see him as displaying a sense of entitlement. However, this is not what happened.
To claim that Kavanaugh’s objections are evidence that he sees himself as entitled to a seat on the Supreme Court by virtue of his birth is to misunderstand what he is objecting to. There is no reason to believe that we would have seen this sort of anger if he had simply lost the confirmation vote because senators had issues with his judicial philosophy. What he is objecting to is that he is being labelled as a criminal without due process and will face the social ostracism that goes with this, regardless of whether or not he is confirmed. He described the consequences of such an allegation well during his opening statement:
Over the past 12 years, I’ve taught constitutional law to hundreds of students…I love teaching law. But thanks to what some of you on this side of the committee unleashed, I may never be able to teach again.
For the past seven years, I’ve coached my two daughters’ basketball teams…I love coaching more than anything I have ever done in my whole life. But thanks to what some of you on this side of the committee have unleashed, I may never be able to coach again.
For someone who is innocent to be free of these types of consequences is not a privilege of the elite. It is a basic human right that all people ought to be able to expect will be protected in a functioning democracy. Certainly, there have been many cases throughout history and in the present time when this right has not been upheld. The solution to this is to work to fix the problems that have prevented this right from being honored, not to presume guilt and cheer on such a violation as the “comeuppance” of “abusive harassers who treat women like objects and playthings” if it a white man whose due process rights have been violated, as Covert does.
The sorts of consequences that Kavanaugh describes are in no way unique to the elite. They can befall a man of any status, from a millionaire to a worker who earns the minimum wage. Whether Kavanaugh is guilty or innocent, seeing someone’s guilt presumed by one of our major political parties when there is no evidence against him beyond the words of his accusers should give pause to any man who is realistic enough to admit that a false allegation could happen to him and any woman who has a husband, son, father, or brother whom she cares about.
To bring race into the discussion is particularly problematic. Kavanaugh and Ford are both of the same race, and there have been no claims that Kavanaugh ever engaged in any sort of prejudice or discrimination against someone of a different race. There are no doubt cases where white men have displayed a sense of entitlement for the simple reason that there cases where people of all demographics have done so. While some of these men may indeed believe that they should have privileges on account of their race or gender, there is no reason to assume that this is the case for all or even most of them. Many of them may just be showing run-of-the-mill ego and narcissism that is in no way connected to prejudice. To assume otherwise is to take the first steps down a slippery slope toward a world where any character flaw possessed by a white man is presumed to be linked to racism and/or misogyny. We should think carefully as to whether this is truly what we want.
Covert’s argument is taken a step further by Paul Krugman in an opinion piece in The New York Times entitled “The Angry White Male Caucus.” Krugman argues that Kavanaugh’s supposed entitlement is representative of the segments of the American population that voted for Donald Trump. He claims that these voters were motivated by “racial resentment [that] was and is driven not by actual economic losses at the hands of minority groups, but by fear of losing status in a changing country, one in which the privilege of being a white man isn’t what it used to be.”
Krugman goes on to describe people he knows “who are seething with resentment because they aren’t at Harvard or Yale, or who actually are at Harvard or Yale but are seething all the same because they haven’t received a Nobel Prize.” It should be noted that Krugman is a Yale alumnus and a Nobel laureate.
The problem with Krugman’s analysis is that it fails to distinguish between two very different groups. The first is old-school racists and sexists, who resent people of a different race or sex for merely existing or for demanding equal rights. These people would accurately be characterized by Krugman’s description. The second is those who have been denied the opportunities extended to equally qualified or even less-qualified women and minorities under affirmative action. These people generally support equal rights and equal opportunities but hold different views from the far left on whether current policies are actually achieving those goals.
One of the errors that Krugman makes is to treat all white men as having comparable experiences. Kavanaugh did indeed have a legacy at Yale and go to an elite private school, factors that almost certainly gave him an advantage over most other applicants. However, these other applicants include the overwhelming majority of other white students as well as minorities. In the United States, only 10% of students attend private schools before college. Students of all races from low-income backgrounds are unlikely to apply to elite colleges and universities, even if they have the qualifications, while those minority students who do attend tend to be from economically well-off backgrounds. Furthermore, Asian students are held to more stringent standards than whites in the name of promoting diversity.
To be “seething with resentment” because one was rejected from the college of one’s choice is not a healthy approach to life. On the other hand, it is perfectly reasonable for students to feel a reasonable level of anger at a grossly unfair admissions process and take constructive steps to attempt to change that process for those who come after them. Some may even choose to join groups like Students for Fair Admissions, which is currently suing Harvard and the University of North Carolina to challenge the legality and constitutionality of their admissions processes.
While the references to privilege made by so many in the media are misguided, there is another type of double standard at play that we ought to consider. Many will inevitably treat Kavanaugh’s confirmation as evidence that our country doesn’t care about violence against women. To evaluate this claim, there is an important question that we must ask: How would this case have been handled if Kavanaugh had been accused of an act of violence of comparable severity against another man?
While we do not have such a case involving a Supreme Court nominee, we can look to the 2012 presidential campaign, during which the Republican candidate, Mitt Romney, was accused of serious homophobic bullying while he was in high school. According to the accusation, Romney led a group of his friends in a gang assault against a colleague who they believed to be gay because of his long hair. They pinned the student to the ground while Romney forcibly cut off his hair while he cried in agony. Unlike Kavanaugh, Romney did not deny his guilt. Rather, he admitted to the crime but argued that it was irrelevant given his age at the time. The allegation was out of the news in a day, and it was never made a major campaign issue by the Democrats. While there are those who have made similar arguments with respect to Kavanaugh, they did not carry the day. Kavanaugh may have been confirmed in the end, but only because of a lack of evidence to prove the allegations against him, not because they were dismissed on account of his age at the time.
The role that gender plays in how we perceive violence is in no way limited to these two cases. Research has shown that crimes against women are generally punished with longer sentences than when the same offense is committed against a man. Those who murder a woman are seven times as likely to receive the death penalty as those who murder a man. Yes, there are sexual assault cases that never lead to a prosecution or conviction, and this is something that we should work to improve. The cause of this is that the nature of the crime often makes it difficult to prove, especially when the crime goes unreported for years or even decades. It does not arise from 21st-century American society viewing violence against women as acceptable.
The Kavanaugh case posed numerous challenges, and many politicians and pundits on both sides of the aisle were more interested in using it to score political points than in treating it with the seriousness that it deserved. As we move forward, we should seek to elect leaders who will handle any such cases that may arise in the future with far greater dignity and who will respect the legitimate interests that citizens of all races and genders have in ensuring that we get this right.
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