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The Kavanaugh Debacle

Can we determine with finality whether or not he did it? And if he did, is it fair to hold a man responsible for something he did as a drunk teenager?
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I’m at the airport in Milan, and will be leaving soon for the US. I am beyond ready to see my family, but I dread coming back to the idiotic sh*tstorm that is American public life. This Kavanaugh thing is off the charts.

I have been abroad for the past nine days. What I know about the accusation is from this Washington Post interview with Christine Blasey Ford, the accuser. If it’s true, it’s obviously horrible what drunken teenager Brett Kavanaugh did to her. She believes it was attempted rape.

But how can we know if it really happened? Ford says she told no one until the disclosed it to a therapist in 2012 — 30 years after the alleged incident. Kavanaugh denies it happened. How can we determine the truth of the matter after all these years?

Even if it happened as she says, should that kind of thing — as vile as it was — disqualify Kavanaugh? Maybe so, but this is by no means obvious to me. I am only a couple of years younger than Kavanaugh, and I was part of a heavy teenage drinking culture. I am certain that I never did anything like that — though maybe I did, and was too drunk to recall — but when I think about how much my crowd (boys and girls both) drank, and how stupid we got with sexual behavior under the influence, I am ashamed.

I remember one girl in my social circles who became a different person when she drank. It was Jekyll-Hyde stuff. When drunk, she was incredibly aggressive, sexually — and boys took advantage of that. I remember once being in a movie theater with her. She got very aggressive with a stranger she had just met, and when a couple of us tried to rescue her from herself, she became incredibly angry with us, and made a scene.

She was a really good person, but she could not handle alcohol. Few, if any of us, could. We were learning how to drink, and used alcohol to help us get over our anxieties about social relationships, especially sex. In my own case, my public high school drunkenness did not involve sexual escapades — I tried, but the amount of liquor it took for me to overcome my shyness also knocked me out. When I look back on it, it’s almost a miracle that nothing bad happened. The drinking age back then was 18 in Louisiana, and it was very, very easy to get booze. Unhappy memories of my own high school and college drinking affected the way I raised, and am raising, my own kids to think about alcohol.

I think we should be reluctant to hold teenage behavior against adults 35 years after the fact. I thought yesterday about a time when I was 15 — same age as Ford at the time of her alleged attack — and a group of 17 year old boys held me down in a hotel room on a school beach trip, and tried to take my pants off. Nobody was drunk; they were trying to impress their girlfriends, who were looking on. The two adult chaperones stepped over me, lying on the floor, pinned by the boys, to escape the room. The boys eventually let me up without taking my pants off, and I ran out.

That event lasted maybe one minute, but it affected the rest of my life. I never thought of it as sexual assault, until a few years ago, when, recalling to a friend how much that event affected my outlook on life, she said, “That was sexual assault. It was sexualized. They tried to take your pants off to humiliate you sexually.” Well, I guess so. I can see that, though we can at least say that it was in a murky zone. Anyway, it changed the way I saw the world. It made me very hostile to bullies. It has as much to do with anything else about why the anger in me burned so hot during the 2002-06 Catholic sex abuse scandal that it consumed my Catholic faith. What those boys did was not innocent. They couldn’t even claim alcohol as a contributing factor.

And yet, if one of those boys were nominated for high public office, I wouldn’t say a word about it. They never apologized, but the truth is, they probably remember none of it. Had they raped me, or crossed a line into what would obviously be sexual assault, I would of course feel very differently. Certainly that room was full of witnesses, and I could name six of them right now. Still, I can’t see the justice in using that event when we were all teenagers and using it to destroy a man’s career. If some of you would like to help me see the justice in doing so, I’m all ears. Seriously, help me to see what you see in the Kavanaugh thing. Because I don’t see how a 17-year-old drunken idiot pawing at a teenage girl tells us anything determinative about the character of a 53-year-old man up for a judgeship.

The #MeToo predators did it more than once. Again, I’m not up on all the reporting, but I have not seen that Kavanaugh has had any more reports of this kind of behavior. In fact, a number of women who have known him as an adult for years report that he has behaved as a considerate gentleman. For all we know now, if he did what he is accused of doing, it was a one-off, done in a moment of extreme drunkenness, when he was 17 years old.

Again: maybe that is disqualifying. I don’t see it, but I could be wrong. What ticks me off is that, judging from the social media conversation, to question whether or not it is disqualifying makes you an abetter of rape.

Here in Italy, I’ve had a number of conversations about the priest sex abuse scandal in the US. My position has been that it’s a very, very big deal, and ought to be treated as such. Many (though by no means all) Italians think we Americans are being puritanical about it. It’s not that they approve of clerical sexual misbehavior, it’s that they are not as scandalized by it. I think they ought to be. (Unlike the Kavanaugh case, these events involve unambiguous sexual assault, committed by adult men.) We have had frank but civil exchanges. We can talk about it without either of us assuming the other side is a monster.

I dipped briefly into Twitter and saw that I had become Harvey Himmlerstein for suggesting that the way people behave in high school, especially under the influence of drugs or alcohol, should not be a determinative factor in taking public office decades later. Someone said, “I hope you don’t have a daughter.”

I do have a daughter, and any body who had treated her like that would have had hell to pay from me … if she had told me about it at the time. If Kavanaugh did it, he ought to have had his ass whipped. But Ford did not inform her folks. See, I also have sons, and I shudder to think what a teenage drunken encounter gone bad might do to their lives over three decades later, if somebody dredged it up. Or what a mere uncorroborated allegation of an unwanted sexual encounter might do to them. I had a bad breakup once in college with a girl who was unstable and manipulative. What if she came out today and said oh, by the way, back in the mid-1980s, Rod Dreher tried to rape me? After all this time, how would I prove my innocence?

That said, I find it difficult to imagine why Ford would make all of this up. To me, the more difficult question is to what extent we are fair to hold a 17 year old morally responsible for an act like the one alleged (which was not rape; at worst, it was attempted rape — and this is a distinction with a difference). I think Mona Charen makes sense here:

There is also the question of responsibility. Is 17 too young to be held accountable for such behavior? It’s a close call, but in the end, it’s a question of character. It’s possible to imagine a 17-year-old behaving like a lout and then regretting it deeply and becoming a pillar of society. And it’s possible that a teenaged abuser was just getting started on a career of assault.

Kavanaugh issued a blanket denial: “This is a completely false accusation. I have never done anything like what the accuser describes — to her or anyone.” If he’s innocent, that’s obviously right and necessary. If he were guilty, and reformed, the awful act itself might be forgivable, if he acknowledged guilt. And if, God forbid, he’s lying, his entire reputation as a man of integrity totters.

This is why it’s crucial to see whether this accusation is a one-off or part of a pattern. Everything we know about Kavanaugh — from his friends, colleagues, students, and community — suggests that he is not just a good guy, but an extraordinarily generous and upright person. He coaches girls’ basketball. He volunteers at homeless shelters. He’s a good husband. He tutors needy kids. He does minority outreach for law-school students. He attends church.

Maybe it’s all a charade, but we should be loath to draw that conclusion without at least one more woman stepping up to recount a similar experience. Absent that, his whole adult life tips the scales far more than one uncorroborated accusation.

Anyway, what I hate is that we can’t talk about this stuff without being called a HATER WHO LOVES RAPEYNESS. Europeans really cannot figure out what they hell is going on in US popular culture. I found myself at a bar the other night with an American academic who was in town. He talked with me and a couple of Italians about American academic culture, and how terrifying it had become because you were just one accusation away — no matter how bizarre — from losing your job. Cultural politics have made professional life unbearable. The stories he told made me loath to consider the possibility that my own children — especially my sons — might go into academic life. You can be utterly destroyed on the basis of an accusation — if, that is, you belong to a despised class, and your accuser belongs to a favored one.

I am glad that Ford will have a chance to speak her mind, and that Kavanaugh will have the opportunity to defend himself. But I think this will only make things worse for all of us. If Kavanaugh gets a Senate vote, and prevails, he will forever be tainted as a Supreme Court justice. If he is forced to withdraw (that is, without further evidence against him emerging), or is voted down, he will become a martyr to many, and will, as the Wall Street Journal editorial page said, legitimize “weaponizing every sexual assault allegation no matter the evidence.”

ON THE OTHER HAND, I think this piece by Caitlin Flanagan, who endured as a teenage girl what Ford says she endured, is provocative and challenging. It ends like this:

“It’s okay, it’s okay,” I kept saying to him. “I forgive you, don’t worry.” It was a weird ambush of intense guilt and apology, and it was the wrong place and time—but the thing was, I really did forgive him. My life had moved on, and things were better. It felt good to get the apology and—as it always does—even better to forgive him. He’d done a terrible thing, but he’d done what he could to make it right. I held nothing against him, and I still don’t.

But if Ford’s story is true, Brett Kavanaugh never apologized. He never tried to make amends, never took responsibility for what he did. In my case, the near-rape—as awful as it was at the time and in its immediate aftermath—didn’t cause any lasting damage. But by Ford’s account, Kavanaugh’s acts did cause lasting damage, and he has done nothing at all to try to make that right. And that is why the mistake of a 17-year-old kid still matters. The least we should do is put this confirmation on hold until we can learn more about what happened. If it’s not true, Kavanaugh should be confirmed without a cloud of suspicion. If it is true, we’ll have to decide whether you get to attack a girl, show no remorse, and eventually become a Supreme Court justice. My own inclination is: No.

I need to think about what she’s saying here — and whether or not it can be assumed that Kavanaugh even remembers what happened. When I was his age, it was fairly common for my friends — again, males and females — to drink to the point of not remembering what we did.  Dude, you were so wasted last night, do you remember that you …? I think it is possible that Brett Kavanaugh did it, and was enough of an asshole to know that he did it, and not to apologize. I think it is possible that he did it, and had no memory of it, because he was blind drunk.

I have supported here in this space the #MeToo movement, and longtime readers know that accountability for sexual abuse means a lot to me. I think Donald Trump is a pig for the way he treats women. Prior to this, I had no strong feelings about the Kavanaugh nomination one way or the other. For all that, and whatever the truth, nothing good will come out of this. We will all end up hating each other more intensely. You can count on it.

Finally, read Megan McArdle. Excerpts:

One way out of the dilemma is to say that whatever happened that night, a Supreme Court nomination should not be derailed by a teenage boy’s behavior some 35 years ago. This argument has real merit, not because sexual assault is all right if you’re 17, but because people do change, and a decent society recognizes that. In the case of minors, whose brains aren’t fully formed, I especially believe in radical forgiveness and radical redemption. Yes, even for terrible crimes — forgiving crimes “except the really bad ones” isn’t forgiveness, it’s an admission that you didn’t care that much in the first place. If you truly believe, as I do, that no one’s character should be summed up by the worst thing they ever did, then people who have atoned and lived honorably for decades should be readmitted to society in full good standing — including even admission to the highest court of the land.

And yet, if Kavanaugh did what he stands accused of, he hasn’t paid his debt. That insults both the suffering of his victim and the majesty of the law. And if he has truly forgotten doing a terrible thing, he’s no longer even capable of forming the sincere repentance necessary for redemption.

Moreover, my views on criminal justice are a micro-minority position, and the democratic legitimacy of this appointment matters. Installing Kavanaugh with the allegations unresolved would further corrode an already tattered civic fabric.

Unfortunately, with the midterms almost upon us, there is now no path to an outcome that both sides see as legitimate. Democrats can insist that the revelation of Ford’s story was not exquisitely timed to exactly the moment when it became impossible to confirm a different nominee before the elections. But they are in essentially the same position as Kavanaugh: Even if they are telling the truth, they have no way to provide convincing proof.

Let me know what you think. Help me make my mind up. Anybody who writes viciously, no matter which side you’re on, won’t get published. Let’s talk about this, not yell at each other.

UPDATE: Ross Douthat and Frank Bruni have an illuminating chat about it. 

I’m writing you from over the north Atlantic, having remembered that I’m on a Boeing Dreamliner, and can connect to the Internet. I can’t quit thinking about this Kavanaugh thing. As Douthat points out in his conversation with Bruni, if Kavanaugh had ‘fessed up to having made a sloppy, drunken pass, and said Ford mistook his intentions, and that he is very sorry, that would have been one thing. He said it didn’t happen at all (though of course he might not remember it). That raises the stakes.

Let’s have a thought experiment. I think we can all agree that if BK had raped Ford, even as an older teenager, that would be disqualifying. But that raises a question: what kinds of teenage crimes would be disqualifying for a SCOTUS nominee? What if BK had severely beaten another teenage boy in a fight, and put him in the hospital? What if BK had committed arson, or some other severe form of vandalism?


Are there some crimes short of murder in which age is a mitigating factor in how we judge the criminal years later? If BK stood credibly accused of having been a 17 year old child molester, there’s no way I’d be comfortable with him on the Supreme Court. So why is it less troubling to me to think of a credibly accused 17 year old boy who sexually assaulted a girl (though, crucially, no sex actually occurred) sitting on the Supreme Court at 53? Is it because I cannot imagine the kind of mind that would sexually desire a child, but having been a 17 year old who drank heavily at times, I can imagine being in a situation in which ordinary teenage lust, one’s normal restraints dissolved by booze, goes too far?

Again: help me think through this. If Kavanaugh ends up withdrawing, or is voted down, it’s not going to be the end of the world. But we should all be very concerned about the kind of precedent this sets for teenagers and their futures. If Kavanaugh treated Ford like this, he escaped justice at the time. But it is not clear to me that justice would be served by his nomination going down 35 years later over it.

I could be wrong.

UPDATE.2: A good comment by reader Joan:

Thanks for the thoughtful column. I am a liberal feminist and was molested at age 12. Nonetheless, this raises serious concerns for me about what I regard as a fundamental premise: that juvenile offenders get the chance to turn their lives around (assuming he did this). Granted he did not pay the price for this action, but the victim did not come forward. I did. My mother insisted that I do so to protect other kids. I was interrogated by the police (this is eons ago); I had to identify the man; I had to appear in court and be cross examined. If the victim had come forward, it is more than likely the case would have been settled down to a non-felony and the record sealed. There were no bruises (in all likelihood), no semen, no eyewitness who wasn’t drunk etc. I am now related to a kid, who because of one drinking incident (also sealed), is trying valiantly to turn his life around and that sealed record and his privacy are being threatened. And that is horrifying to me. This seems to put that principle in jeopardy. I want kids to have that chance. The statute of limitations is also important because of the vagaries of memory — hers is a recovered memory; his may be a wiped-by-alcohol memory. I don’t believe that we destroy an otherwise decent life (in so far as it can be judged) on a case that would never see a court at this point in time. Are there any circumstances in which this would be heard in a court of law today? Additionally, I will say that I support the me-too movement; I was one of the first women on Wall Street; I know the price that many of us have paid. But I am not comfortable – at all – with this. I may change my mind as this evolves. But thank you again for a thoughtful and thorough column.



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