Brett Kavanaugh and Our Accountability Crisis

The judge is the perfect nominee for our era of elite impunity.

Kavanaugh and Trump in black and white against a full-color background
Brett Kavanaugh and Donald Trump. Photo illustration by Slate. Photo by Saul Loeb/AFP/Getty Images.

What’s striking about the many defenses of Supreme Court nominee Brett Kavanaugh in the face of a credible accusation of sexual assault when he was a teenager is how they put broad concerns over accountability and impunity into sharp relief. Calls for leniency and understanding for the judge before courts of power and opinion that may determine his career sit uncomfortably next to the treatment of young black Americans at the hands of police, or of unauthorized immigrants at the hands of border authorities.

Watching the machinery of elite power operate on behalf of Kavanaugh is both a lesson in who is entitled to second chances and absolution as well as an illustration of larger conflicts over the limits and boundaries of accountability. And read in that light, Kavanaugh is the perfect vessel for a view that puts the most privileged and powerful beyond the reach of public account.

The allegation is straightforward. Christine Blasey Ford says that at 15, while attending a house party, a 17-year-old Brett Kavanaugh pinned her down and tried to remove her clothing, stifling her screams with his hand while playing loud music to muffle the sounds. “I thought he might inadvertently kill me,” she told the Washington Post, giving full details in an interview after contacting the paper after Justice Anthony Kennedy announced his retirement from the Supreme Court and Kavanaugh was a potential nominee. Now a 51-year-old research psychologist at Palo Alto University, Ford says the incident burdened her teen years. “I think it derailed me substantially for four or five years,” she said.

Kavanaugh denies the allegation. “This is a completely false allegation. I have never done anything like what the accuser describes—to her or to anyone,” he said in a statement released Monday. The Senate Judiciary Committee has set a hearing for the accusation; according to the New York Times, Ford has yet to confirm her appearance.

Republican leaders have not budged from their support. On Tuesday, President Donald Trump told reporters that Kavanaugh is a “great gentleman” and “not a man who deserves this.” On Monday, Senate Judiciary Committee Chairman Chuck Grassley questioned the timing of the revelation in a statement to the press. “It raises a lot of questions about Democrats’ tactics and motives to bring this to the rest of the committee’s attention only now rather than during these many steps along the way,” the statement reads.

Conservative media also leapt to Kavanaugh’s defense. “A single sourced, uncorroborated accusation from 35 years ago never mentioned to anyone until the alleged perp is a public figure is not a credible accusation,” wrote conservative pundit Erick Erickson on Twitter, neglecting documentation that Ford told her therapist in 2012. Where Erickson denies the allegations, American Conservative writer Rod Dreher accepts them but characterizes the incident in benign terms. “I do not understand why the loutish drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge,” he said on Twitter. “By God’s grace (literally), I am not the same person I was at 17. This is a terrible standard to establish in public life.” On Fox News, former Bush administration press secretary Ari Fleischer asked, “How accountable are we for high school actions,” also asking whether incidents like the alleged assault should “deny us chances later in life?”

If Kavanaugh confirmed Ford’s account, or expressed contrition for any intoxicated behavior, then there would be legitimate questions of culpability—what is the responsibility of a middle-age man to the actions of his teenage self? But Kavanaugh denies the incident in full, from the assault itself to his presence at the party in question. Like Erickson’s brief in his favor, his defense is this never happened, which makes his accuser a liar. The stakes of a hearing then are not just about his past behavior, but about his present character. And if he’s not telling the truth, then we’ve learned Brett Kavanaugh will do or say anything to secure his political ascent.

But would Republicans and their conservative allies hold him to account? The best evidence says no.

What we’ve seen in the age of Trump is the complete collapse of standards for behavior and conduct among Republicans. The obvious example is the president himself, who in 2016 faced more than a dozen accusations of sexual assault after bragging, on camera, about kissing and groping women without their consent. Vocal disgust from Republican leaders eventually gave way to quiet acquiescence, as they rationalized Trump’s behavior as the necessary price of victory, and later, as the cost of achieving key goals—including a conservative majority on the Supreme Court.

From the vantage point of 2018, that bargain looks like the original sin of the Trump era, a moment of moral weakness heralding a cascade of moral failure. When Roy Moore faced credible accusations of child molestation, Republicans momentarily broke with his campaign before restoring support in the weeks before voting. Mitch McConnell could tolerate abuse of minors by a political fellow-traveler if it meant a vote for his Senate caucus. When Trump was accused of making potentially illegal payments to cover up a sexual relationship with an adult film actress, his supporters on the evangelical right simply shrugged. “We kind of gave him—‘All right, you get a mulligan. You get a do-over here,’ ” said Tony Perkins of the Family Research Council, a conservative activist group. And when former wrestlers at Ohio State University accused Rep. Jim Jordan of turning a blind eye to sexual abuse in the athletic program when he was assistant coach of the university’s wrestling team, prominent conservatives like Ginni Thomas—wife of Supreme Court Justice Clarence Thomas—came to his defense. “Jim Jordan is under attack, with false accusations, because he threatens the elite,” she wrote on her Facebook page.

The defense of Kavanaugh—including outright dismissal of claims against him—is of a piece with the pattern established when the Republican Party grafted itself to the Trump Organization. It’s not insignificant that Kavanaugh’s first statement as a Supreme Court nominee was a blatant falsehood in praise of the president: “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” he said, despite clear evidence that Trump picked his name from a pre-determined list of candidates.

There is a flip side to the endless extension of moral credit to powerful (white) men like Trump or Moore or even Kavanaugh. It is its denial to those born on a lower caste.

The same Rod Dreher who pleads sympathy for Kavanaugh had far less compassion for Michael Brown, killed in Ferguson, Missouri, during a confrontation with Officer Darren Wilson in 2014. In a piece titled “Tips for Not Getting Shot by Cops,” Dreher cautioned future young black men not to “be a lawbreaker or hang out with lawbreakers,” while raising the possibility that Brown’s death was justified.

Donald Trump’s willingness to look past Christine Blasey Ford’s accusations stands in stark contrast with his approach to the five black and Latino teenagers accused of assaulting a jogger in Central Park in 1989. While they were still just suspects, Trump called for their execution. Decades later, clear evidence of their innocence wasn’t enough to shake Trump of his belief in their guilt. “They admitted they were guilty,” said Trump just a few weeks before the 2016 presidential election. “The police doing the original investigation say they were guilty. The fact that that case was settled with so much evidence against them is outrageous.”

To look beyond individual pundits and politicians is to see a world where responsibility and culpability is structured by race, class, gender, and your overall proximity to disadvantage. In the existing framework, we cannot ask a prospective Supreme Court justice to account for the actions of his youth, but we can hold a 12-year-old black boy responsible for not heeding police commands fast enough, or a 17-year-old black teenager for not deferring to a neighborhood watchman. Some people escape punishment for the crimes of their youth, others lose their right to vote for life. Right-wing pundits who back deportation for young adults brought to the United States as children also think the accusations against Kavanaugh are a disgrace. Somewhere, a man Kavanaugh’s age is sitting in prison for a crime committed as a teenager.

Much of the past decade of American life has been marked by a crisis of accountability that transcends conventional divisions of party and ideology. The leaders who produced the catastrophic failures of the 2000s—from the Iraq war and an illegal torture regime to the financial crisis and the near-collapse of the global economy—remain elites in good standing, with leading roles in political and economic life. Police kill unarmed men and women—many of them from our most marginalized communities—with virtual impunity, immune to criminal punishment or legal sanction in all but the most egregious cases of misconduct. Even after exposing entrenched patterns of sexual abuse and misconduct, women still fight—with limited and provisional success—to hold men accountable for their actions.

In the immediate post-Trump era Americans will have to deal with the wreckage of his corruption, graft, and disdain for the public trust. They’ll have to grapple with the human consequences of this administration, from the irreparable damage done to migrant parents and children as a result of “family separation” at the border to those families broken and scarred as a result of indiscriminate deportation policies. They’ll have to consider the difference between ordinary politics and the moral transgressions that demand a public account from those responsible.

In other words, the crisis of accountability will continue. The only question is whether we’ll hold the relevant individuals and institutions as liable, or if we’ll again “look forward” and leave elite malfeasance in the past, allowing those responsible to launder their reputations and seek another chance in public life.

This isn’t an abstract concern. Gary Cohn was the No. 2 executive at Goldman Sachs, part of the machinery that caused the financial crisis. In 2017, he joined the White House as director of the National Economic Council, where he served as chief economic adviser to the president until April. Kirstjen Nielsen was special assistant to the president for prevention, preparedness, and response during Hurricane Katrina in 2005. Her team, notes the Washington Post, was “widely criticized for its passive and clumsy response.” She is now secretary of homeland security. As an intelligence officer, Gina Haspel urged destruction of tapes documenting the use of torture on U.S detainees. During her command of a secret base in Thailand, CIA interrogators used waterboarding and other brutal techniques against al-Qaida captives. Haspel is now CIA director.

Kavanaugh is part of this story too. He was associate White House counsel in the George W. Bush administration from 2001 to 2003, a time when other lawyers in the office were crafting memos to justify torture, mass surveillance, and indefinite detention. He then served as staff secretary until 2005. During confirmation hearings for a seat on the Court of Appeals for the District of Columbia, he told the Senate Judiciary Committee he had no knowledge of those memos or other documents relating to those programs. We now know this was misleading: “In 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration’s decision to deny lawyers to American enemy combatants,” reported NPR in 2007. More recently, emails released by Sen. Patrick Leahy of Vermont show Kavanaugh was part of the discussion around President Bush’s warrantless wiretap program as early as September 2001. In his 2006 testimony, Kavanaugh said he only learned of the program in 2005.

Brett Kavanaugh has little personally in common with Donald Trump. He has taken pains, at his nomination announcement and during his confirmation hearings, to assert his woman-friendly bona fides. Nonetheless, he is a perfect nominee for the moment. He embodies the driving themes of the Trump era, albeit in more genteel, traditional form than the president himself. Themes of elite impunity in the face of open transgression; of redemption without recompense for those in authority; and of a society that extends endless opportunity for some and deploys unyielding punishment for others. He is both the product of a political movement devoted to the protection of existing hierarchies of race, gender, and wealth, and a representative of the power structure that sits at the top of those hierarchies.

Most of this was apparent at the time of his nomination. But Christine Blasey Ford’s allegation—and the conservative response—makes it blindingly clear. The question of this age, the fight of this age, is whether people like Kavanaugh—people with wealth and authority, shielded by advantages of race and gender—are citizens to be held accountable, or members of a special caste unbound by rule of law.