Whatever the outcome from today’s SCOTUS confirmation hearings, we’re going to remember today for a long time. Like most watershed moments, how we feel about it over time will be subject to the forces of popular narrative. I read a piece that came out shortly after the Anita Hill hearings this morning, championing the societal victory that it was for being both post-racial and sensitive to the nuance of women recently present in the workplace. According to the author, racism and sexism were dead. Or so says some part of 1991 America.
As for what 2018 America, more specifically me, has to say about the Kavanaugh hearings, I thought it might be helpful to write down some quick observations.
-The lifetime appointment to the Supreme Court has to be reviewed and possibly changed. It’s original intent was to make the role independent and not subject to near term political accountability. It was not designed to create a sort of crisis of morbidity and randomness usually reserved for monarchies. 15 to 20 year terms should suffice. The Chairmen of the Fed has a term limit of 14 years. At least part of the circus at hand is because it’s reasonable to say that there is no limit to allowable scrutiny for someone that will hold a position of supreme power for 30 years.
-The Supreme Court holds more power, as a branch of government, than it was designed to. In a government of vetocracy, with more designed checks than balances, the court has had the top vote on a disproportionate amount of societal change in our history. Relative to the intent of the founders, both the Executive and the Supreme Court have outsized roles relative to Congress. We elect our Presidents because they represent the kind of change we want. But it’s been the Court that’s delivered it for most of the last century. Congress hasn’t done much. That the court has done it by outlining what types of laws can’t be passed is somewhat telling about our base instincts as a people and how little we actually believe in the promise of equal treatment before the law, as an electorate.
-Though I do my best to not ride the “blame Trump” bandwagon, it’s really hard to separate the #metoo movement from the Trump presidency. In reality, the movie should have ended with the Access Hollywood tape. But it also should have never started. We’ve had societal norms of disqualifying behavior for most of our history. Once exposed, the social contract mandated we banish the offender from public life. That didn’t happen. What’s resulted is an even further erosion of social trust and a feeling of helplessness from women and those sympathetic to their interests. When there’s a lack of trust and empowerment from a group as large as “most American women” we should expect a snap back. And when the paramount women’s issue of our time, women’s reproductive rights, is in question, we should expect unimaginable levels of scrutiny. Like what one’s high school year book blurb says.
-Many American men are now inventorying their past behavior differently than they once were. This likely makes them inventory their present behavior differently. It’s hard to imagine that it’s not a positive thing. A world where we are as worried about how women will see us men as women have been about how we men see them doesn’t feel off to me.
-We’re mistaking the burden for public opinion for the burden of criminal proof. This is a job interview. I didn’t get a job once because someone on the interview panel was once told by someone with interest that they look better than I did, something unfair about my job performance. That wasn’t right. But it wasn’t a breakdown of the rule of law or habeas corpus.
-The idea that what I did in high school is now in play has made me think a bit about my past. As I’ve gone through just about every lousy thing that I’ve done, and I’ve done plenty, there is one thing conspicuously absent: indiscretions that involved physical aggression. I’m of the opinion that most men can say that. Unprovoked, violent acts of aggression against women or others may be common. But they aren’t normal.
-Whether or not Judge Kavanaugh did what he was alleged to have done, it’s extremely difficult to see how having him present and participating at the highest levels while the Supreme Court weighs women’s reproductive rights will be good in the near term for issues of social trust, division and hyper politicization of the courts. Which means that it’s possible that Brett Kavanaugh is an innocent casualty of our times. He could also be someone with disturbing views and past behavior towards women that’s about to hold the swing vote over women’s reproductive rights for the next 30 years. That which side of that debate one breaks down on is entirely political right now, is commentary for our times.