Can we just remember something here? We’re talking about an alleged sexual assault by Brett Kavanaugh, not boyish hijinks.
I feel like we need this reminder because over the weekend we started spinning into the phase where conservatives are saying liberals want to hang a guy for being a heavy boozer. Or for being impolite to women. Blazing this trail, unshockingly, is Mollie Hemingway of The Federalist, with tweets like this one:
But it’s not just her, and it’s not just Twitter. More credibly, Andrew Sullivan wrote in New York magazine after the Brett Kavanaugh-Christine Blasey Ford testimony last week that “when public life means the ransacking of people’s private lives even when they were in high school, we are circling a deeply illiberal drain.”
Sullivan has a point. He is right, too, that only authoritarian and theocratic regimes erect no wall between the public and the private, and that for the founders of this country, that wall was sacrosanct: “The family, the home, and the bedroom were, yes, safe places. If everything were fair game in public life, the logic ran, none of us would survive.”
All of this is correct as a broad statement of principle. But it forgets that we’re talking about sexual assault here (that was Blasey Ford’s phrase; to me and a lot of other people, it sure sounded like an attempted rape that didn’t happen only because she got away) Despite what conservatives want to believe, Democrats and liberals aren’t interested in Kavanaugh’s drinking habits in and of themselves. We don’t want to know what the FFFFFFourth of July Club was out of prurience.
We want to find out about these things for one reason only: because he is credibly accused of sexually assaulting a woman. His drinking habits 35 years ago wouldn’t keep him off the Supreme Court. I don’t think his drinking habits today would keep him (or anyone) off the Court. It does seem that his statements to the Senate about his drinking may do him in, if that’s what the FBI determines those were falsehoods, delivered under oath, not just absurd evasions. But that would be a lying problem, not a drinking problem.
And if he’d been one of those awful guys who sweet-talked or pressured women into bed and then ignored her while coarsely boasted to his buddies about his exploits, he’d be a cad and a creep. But he could still be a Supreme Court justice. If he were being persecuted for that, that would be exactly the kind of improper character judgment Sullivan wrote about and a completely inappropriate evisceration of the wall between public and private.
But the accusation is sexual assault. And it doesn’t matter that it was 36 years ago, which has become another favored right-wing talking point. If the FBI turns up evidence this week suggesting that Ford is telling the truth, that will in turn suggest he has been lying right now, before the Senate and under oath.
This is not about a misspent youth. It’s about an extremely serious criminal allegation. And, of course, there are two other allegations too. You may take them less seriously than Ford’s. It’s become conventional wisdom to dismiss Julie Swetnick’s charges as ludicrous, partly because they’re so disgusting and partly because Michael Avenatti is her lawyer. I obviously have no idea, but my sense of the male of the species is that if he is capable of doing what Ford says Kavanaugh did, then he’s probably also capable of doing what Swetnick says Kavanaugh did. Once you’ve reduced females in your mind to meat, a lot of terrible things are possible.
This investigation is not about tearing down the necessary wall between public and private. Sexual assault is not a private matter. It’s a matter society has an interest in preventing and punishing.
Third, this is also not about the presumption of innocence. If Kavanaugh were standing trial in a criminal court, obviously he would be entitled to the presumption of innocence. That’s one of our society’s most fundamental values.
But this isn’t a trial. It’s a political hearing for one of the most important offices a person in the United States can hold. I’m not saying this means we may presume his guilt. We may not.
I am saying, however, that what is at stake here is not a man’s ability to walk freely in society. It’s whether he will be granted one of the rarest and highest honors an American can have, one that only 113 people in 229 years have received. As far as I’m aware, not even the most rabid #MeToo-er is suggesting that Kavanaugh be charged based on the claims against him. Everyone is granting him the presumption of legal innocence.
But this is a credible allegation about a serious crime, and that’s the reason why all these 35-year-old rocks are being overturned. Remember that when you see someone on cable whelp about Kavanaugh being raked over the coals. Maybe he is. But he’s not accused of getting drunk and totaling his dad’s car. He’s accused of sexual assault. I’d have thought the “law and order party” might get that.
UPDATE: I wrote this column Monday afternoon, and in the precise time frame between then and now (Tuesday morning), the Kavanaugh debate took a turn. The Times posted that article about the focus now shifting to Kavanaugh’s “temperament and honesty,” and another about him maybe starting a bar fight in New Haven decades ago. In a Politico article, some liberal activists are quoted as saying that the issue is now Kavanaugh’s “pattern of flagrant dishonesty.”
In other words, my argument—that this is all about the sexual assault accusations—is now a little out of date. The narrative is starting to shift from “this is about sexual assault” to “this is about broader questions of character.”
This makes me a little uncomfortable. If he lied about how much he drank when he was young, then in one sense he lied and that's that; the word "character" makes for a large and very handy umbrella in such cases. On the other hand, a behavior like youthful drinking should not be disqualifying. If that becomes the new standard, that net will snare a lot of people, conservative and liberal alike.
It is true that Kavanaugh could have avoided all this, probably, by giving one of those euphemistic answers about his drinking past. And if he’s lying through his teeth about that, I suppose it does say something about the man’s present-day character. I just think we ought to be careful here. Sexual assault is one thing; no matter how old, that’s open and shut. The rest of this looks kind of gray to me, and I just would urge Democrats and liberals to think about the precedents they might be setting here that Republicans and conservatives can one day use against our side.