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Being Morally Serious About the Supreme Court

By Nils Gilman

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The debate we should be having on Brett Kavanaugh turns on a crucial question: What sorts of youthful transgressions are forgivable, and which are disqualifying, for which jobs?

If Americans constituted a morally serious nation—instead of one that seems to take perverse pleasure in tawdry spectacles of political sententiousness, hypocrisy, and bad faith—the debate we would be having over Supreme Court nominee Brett Kavanaugh would turn, at least in part, on the following question: What sorts of youthful transgressions are forgivable, and which are disqualifying, for which jobs?

On the one hand, there are youthful acts that any reasonable person would consider permanently disqualifying for later political office. Few would argue that a one-time, cold-blooded murderer should be admitted to the Federal bench or Congress. Conversely, there are teenage acts that most would agree we can shrug off as mere callowness—egging your neighbor’s house, say, or placing a whoopee cushion on a teacher’s chair.

But in between these two limits—high crimes on the one hand, youthful peccadillos on the other—lies a wide range of morally dubious acts about which reasonable people may feel differently. A few distinctions about this wide spectrum may help us better assess where the young Brett Kavanaugh’s alleged acts fall along that spectrum.

Though rarely publicly acknowledged, the goalposts on political morality move over time. Divorce, for example, was once considered disqualifying for a President. It certainly contributed to slowing Ronald Reagan’s runs at the White House in 1968 and even in 1976. By 1980, however, with divorce rates over the previous two decades having skyrocketed to the point where almost no family was left untouched, Reagan’s divorce from Jane Wyman 30 years earlier was no longer deemed disqualifying in the eyes of either Republican primary voters or the general electorate.

Or consider the question of substance use and abuse. For Bill Clinton, the admission that he had smoked pot in college—even if, as he infamously claimed, he “never inhaled”—was one of several youthful acts that nearly derailed his run in 1992. Likewise, George W. Bush’s youthful drinking, and rumors of cocaine use, was an issue for him as he pursued the presidency in 2000. By 2008, however, when Barack Obama saw a picture of himself smoking a giant reefer go viral on the internet, and even admitted in his book that he had used cocaine as a youth, it did little to dent his appeal.

Growing tolerances regarding acts formerly regarded as sins are relatively easy to deal with because they generally result in a more rather than less inclusive view of who is eligible for higher office. It’s much trickier when the opposite occurs: a norm evolving in a way that ends up condemning behaviors once considered relatively acceptable. This diminishes options for people who once behaved in ways now considered out of bounds, even though at the time the acts committed were considered, if not quite no big deal, then at least relatively minor deals.

This attends in particular to issues regarding gender and race politics, for which a whole set of new taboos have emerged over the past couple of generations. Prior to the civil rights movement, for example, white people referring to black people using the N-word would have been considered completely normal in many circles. Not that this was good—even among many unrepentant segregationists such language would have been considered vulgar and hence rude. But it would have been seen as more unbecoming than politically disqualifying.

Today, by contrast, being caught saying such a thing, even many years ago, is almost certainly career-ending. In 2006, for example, Senator George Allen (R-VA) used the term “macaca” to refer to S.R. Sidarth, a brown-skinned man who was filming his event. It turned out that this term was some obscure Francophone (or possibly Lusophone) racial slur derived from the word “macaque,” a species of monkey. The outcry was immediate; even members of his own party refused to support him. Allen lost a closely contested election to Democrat Jim Webb.

Of course, Allen’s slur took place not in the distant past, but was something happening live in the then-present moment of 2006. What really matters in the debate over Brett Kavanaugh is a narrower but perhaps more vexing question: What are we to make of transgressions committed in the relatively distant past, for which the norms have indubitably moved? (I note that many #MeToo leaders react with suspicion to any effort to historicize their activities. Activists tend to believe they are not so much changing norms as institutionalizing timeless ethical principles that were simply sidelined in the past by malignant and reactionary forces. Alas, that our own age has no monopoly on moral truths is a truth of a different sort that norm entrepreneurs tend to categorically reject.)

One challenge in the case of Kavanaugh is that he as an individual simultaneously occupies the present, in his campaign for a seat on the Supreme Court, and the past, some 35 years ago, when by all accounts—including his own—he engaged in behavior not necessarily of the best sort. He has conceded that sometimes he drank too much, but denied that he had ever drunk until he blacked out, and certainly that he had never, drunk or sober, made unwanted sexual advances on anyone. The burden of these distinctions was in part to parse out venial from mortal sins—occasionally drinking too much beer being not great but also not that big a deal, whereas blacking out and sexually molesting someone being certainly “over the line.” Little direct effort was made to argue that the line itself has moved over the past 40 years, since that was perceived—almost certainly correctly—as unlikely to be a political winner.

But the question of temporal distance is one that others have made explicitly. Preacher Franklin Graham enunciated the argument that, “It’s just a shame that a person like Judge Kavanaugh who has a stellar record—that somebody can bring up something he did when he was teenager close to 40 years ago.” Similar arguments were made by those who wished to defend Republican Alabama Senate candidate Roy Moore from charges that he had made sexual advances on underage women some 40 years ago. Part of the reason for letting actions from the past go is that we all recognize, in both ourselves and others, that people evolve morally over time. Is the moral person who committed a wrong act at age 17 or 20 even recognizably the same moral entity as the person sitting before us today?

In asking this question, we follow part of the logic that drives statutes of limitations in criminal cases. Lawyers primarily justify statutes of limitations on procedural grounds—that at some point it becomes impossible to adjudicate fairly given the passage of time. But there are also good moral reasons to support such statutes.

First, statutes of limitations implicitly account for the fact that social perceptions concerning the moral nature of the crimes in question themselves change over time. And second, statutes of limitations recognize that people’s moral characters change over time, too, and so punishing people in the present for crimes committed many years ago, when they may well have been very different people, somehow seems fundamentally unfair. This is why statutes of limitations are only suspended for the most monstrous sorts of crimes: because the assumption is that people who commit such crimes, even if they have morally evolved to a certain degree, are unlikely to have evolved so much that none of the malign impulses that motivated the original crimes are likely to remain. How much is a cold-blooded murderer likely to change? There is a moral theory of human nature at work here, if only implicitly.

As I perceive the moral case at hand with respect to Brett Kavanaugh, I make two fundamental moral observations—and as moral issues these stand separately from other relevant concerns, such as, for example, the fact that the Court has become gradually more politicized thanks to the incapacities of the Legislative Branch, and that fact that the Court has become far more important in American politics than the Framers ever imagined it would or should be.

The first moral observation is that almost all of us are inclined to be more forgiving of past misdeeds, particularly ones that occurred in the relatively distant past, but only if the perpetrator seems genuinely contrite over what he (or she) did. And a pre-condition of contrition is an admission of wrong-doing. One reason George Bush was forgiven his youthful drinking, or Obama his youthful cocaine use, is that both had admitted that this was a mistake and had clearly moved beyond such transgressive behavior. A lot of people drank sloppily in college; so long as this was the limit of their sins and they have successfully moved past it, most of us would be inclined to forgive.

The first challenge in trying to forgive Kavanaugh, politically speaking, for any of his possible wrong-doing, is that he has not actually admitted that he did anything wrong. Rather than appearing contrite, he is claiming he has nothing for which to apologize. If one believes he has committed misdeeds, therefore, this lack of contrition leads to the suspicion that that he has not changed. (His insistence that “he still likes beer” doesn’t help with this impression.) Of course, this could be because he is innocent; but it could also be because he is still guided by the moral compass that allowed him to commit the acts of which he stands accused by Christine Blasey Ford. In any event, in his testimony this past Thursday, Kavanaugh clearly bypassed the opportunity to seek forgiveness.

The second fundamental observation is that the job Kavanaugh seeks is not just any job. A lifetime appointment to the Supreme Court of the United States is a job of immense prestige and power, and one he would be likely to hold for 30 years or more. This is one of the hardest jobs in the world to get. Hundreds of people alive today either are or one day will be Senators or Governors; thousands of people are or one day will be CEOs of Fortune 500 companies; but at most a few dozen people alive today will ever be Supreme Court Justices. Is Brett Kavanaugh really worthy of this singular honor and power? Even the shadow of a doubt on this score should be enough to cause reasonable people to look elsewhere.

As Julius Caesar observed, in divorcing his wife even after the adultery case against her possible lover was dismissed, “Caesar’s wife must be above suspicion.” So it is with Supreme Court Justices: They must be above suspicion, at numerous levels. Politically, they must seem reasonable and neutral. Intellectually, they must be clear and open-minded. Morally, they must be above reproach. Indeed, the initial marketing of Kavavaugh as a wonderful family man and carpool driver was based on exactly this view: that the moral character of the man is a crucial part of the job application. Nor is such a view of the job requirements simply a question of sentimentality about what constitutes a “judicious disposition.” The legitimacy of the Supreme Court depends, crucially, on the perceived probity of the Justices who sit on it. Why should people respect controversial Supreme Court decisions if they are handed down by people of low moral character, of dubious intellect, or of manifestly partisan motive?

The requirements for this particular job—short of the presidency itself, the most prestigious and powerful of jobs available in the Federal government—are and should be far higher than simply beating a charge on the basis of criminal standards (“beyond a reasonable doubt”) or even the standards used in civil cases (“clear and convincing evidence” or “a preponderance of the evidence”). Indeed, Americans expect much higher standards for a Supreme Court Justice than they would for virtually any other job. Youthful lapses that might well be forgivable when applying to be a sales rep, a software engineer, a football player, or an architect are rightly more heavily scrutinized when it comes to a position as august as a lifetime appointment to the Supreme Court.

For this particular job, we must scrutinize a person’s entire life with a degree of thoroughness reserved for virtually no other position. Insofar as we find question marks in that past, the burden lies on the candidate to clear them up, either by definitely disproving the doubters (a hard charge) or by showing that he or she has engaged in a moral evolution away from the one that permitted him or her to commit misdeeds in the past.

Kavanaugh has not met this mark. If the polls are to be believed, some 150 million Americans doubt Kavanaugh told the truth under oath. Regardless of the truth or falsity of the charges raised against him, these numbers should themselves be disqualifying. Placing anyone with that kind of a credibility challenge on the Supreme Court will be immensely damaging to the institution’s integrity. Republican partisans can gnash their teeth all they want about Kavanaugh being the victim of a character assassination, but that changes nothing of essence. For the sake of the institutional integrity of the court, appointing another person, one truly above suspicion, would seem to be paramount. (Unless, that is, delegitimating the Court is actually an implicit goal of the President. I leave this speculative possibility for another column.)

This explains my dismay at Kavanaugh’s testimonial strategy. I went into this past Thursday’s hearing truly attempting an open mind. I expected Professor Blasey Ford to perform as she did—in a manner that induced empathy if not, of course, providing definitive proof of what may have occurred in that room in Maryland 36 summers ago. But what I had hoped Kavanaugh might have done would be to deliver opening remarks along these lines:


So forget about what may have happened 36 years ago: No one who behaves the way Kavanaugh did on that Thursday belongs on the Supreme Court.


Such a speech wouldn’t have gone as far as admitting wrong-doing and asking for forgiveness, but it would at least have suggested that, whatever Kavanaugh’s moral positions in the early 1980s, and whatever the truth about who assaulted Blasey Ford, he at least now has reached a morally defensible position.

But this was not the speech we got. Instead we were greeted by a man barely able to contain his emotions, claiming partisan victimhood, and all but explicitly vowing revenge. This show may have appealed to the Audience of One, but it was simply an unacceptable moral posture for anyone seeking a Supreme Court appointment, regardless of the underlying truth of the charges leveled against him. What Kavanaugh’s speech indicated—what it in fact performed—was a traducing of the moral values we expect a Supreme Court justice to embody: solemnity, equanimity, maturity, forbearance, and yes, sobriety (in the moral sense). Even if he was a man wronged, Kavanaugh’s conduct was, to use a moral concept often deployed in the military, “unbecoming” of a Supreme Court Justice. So forget about what may have happened 36 years ago: No one who behaves the way Kavanaugh did on that Thursday belongs on the Supreme Court.

This underscores the final, deepest issue: Kavanaugh’s apparent inability to recognize that the institutional integrity of the Supreme Court is bigger than justice for him as an individual. At the end of the day, like his fellow Republican partisans, Kavanaugh seems unable to see that his assassinated character, whether just or not, has disqualified him from the job; and that failure of recognition is itself disqualifying. This may seem like a Catch-22 for Kavanaugh himself, and it is. But the Court is bigger than the man, and everyone involved, if they care about the Court, should recognize this.

Nils Gilman is vice president of programs at the Berggruen Institute and a monthly columnist for The American Interest.