Kavanaugh-Ford: Believe in the facts
Don’t fall back on tribalism or stereotypes
As I write this, I have no idea what will happen with Judge Brett Kavanaugh’s Supreme Court nomination. But I do have a few observations on what’s happened so far:
“Believe the women” is bunk (and nobody really means it anyway). We heard that mantra in two of the most famous fake-rape cases of recent years. In the Duke lacrosse case, the prosecutor who believed the woman in question wound up losing his law license. In the University of Virginia/Rolling Stone case, Rolling Stone wound up facing millions in damages. In both cases, stereotypes about “privileged” athletes and fraternity brothers encouraged many to believe shaky stories, and to shame those who expressed doubts as rape-enablers. Only there was no rape; it was all made up.
We’re now hearing similar things from Kavanaugh opponents. But a story is true or not based on its facts, not on who the accuser, or the accused, happens to be. To know what happened, we need facts, not stereotypes.
Then there’s the case of Keith Ellison, deputy chairman of the Democratic National Committee. A former girlfriend accused him of domestic violence and abuse, but only 5% of Democrats in Minnesota believe the charges, despite a doctor’s note that includes her abuse allegation.
People believe what they want to believe, at least until the evidence is overwhelming. (And sometimes even then.) And calls to “believe the women” tend to be pretty opportunistic — something that Juanita Broaddrick, who accused Bill Clinton two decades ago of rape to no effect, has been noting on Twitter. The Supreme Court is too powerful. Confirmation fights are so contentious because the Supreme Court is in many ways the most powerful part of our government. It’s the only one whose rulings can’t be overturned by an election, and it’s closely divided. Its makeup is so important that it plays a major role in presidential and Senate elections. This is a profound distortion of our constitutional scheme, one
that’s bad for the court and the country.
We’ve become too tribal. For decades, the consensus favored bringing Americans together, across divides like race and religion. But things don’t work that way now. As Andrew Sullivan writes: “After a while, the crudest trigger points of tribalism — your race, your religion (or lack of it), your gender, your sexual orientation — dominate the public space." Politicians probably know that tribalism is bad for the larger society. But it benefits their political positions, and we no longer have strong enough societal norms to control it. Social media make things worse. There are some nice things about the immediate interaction made possible by sites like Facebook and Twitter. But social media — especially Twitter, where most of the political/journalistic types hang out — can be destructive, too. Ideas and half-baked theories spread like wildfire, amplified by algorithms that emphasize “engagement,” which give more attention to the ideas that people love or hate the most. Maybe cameras and good govern
ment don’t go together. Watching senators posture during the Kavanaugh hearings this month, a fellow law professor observed that he was now convinced having cameras in federal courtrooms was a bad idea. He may well be right. At any rate, having cameras in the Senate certainly hasn’t improved the quality of senatorial work.
Maybe we should get rid of confirmation hearings entirely. People take the practice for granted, but it’s actually of relatively recent vintage. The first hearings involved Justice Louis Brandeis in 1916, and they happened because anti-Semites were reluctant to approve a Jewish justice. Hearings continued, but nominees didn’t take questions from senators until Potter Stewart in 1959. And that was because of concerns by segregationists.
It’s hard to argue that either the Senate or the Supreme Court has improved since. Maybe we should eliminate the theatrics.
Glenn Harlan Reynolds, a University of Tennessee law professor and the author of “The New School: How the Information Age Will Save American Education from Itself,” is a member of USA TODAY’s Board of Contributors.