One of the dubious advantages of a Supreme Court nomination battle is how it brings into the open some of the vicious, ideological arguments that are normally hidden by shame and discretion. That has certainly been true on the right, with some figures demonstrating a callousness toward the charge of attempted rape that would presumably change if their own children were even remotely threatened.
On different issues, this has been a revealing moment on the left as well. Asked this past weekend by CNN’s Jake Tapper if Supreme Court nominee Brett M. Kavanaugh deserves a presumption of innocence, Sen. Mazie Hirono (D-Hawaii) offered a curious response. She argued that Kavanaugh’s denial of sexual misconduct is less credible because “he has an ideological agenda that’s very outcome driven, and I can sit here and talk to you about some of the cases that exemplify his, in my view, inability to be fair in the cases that come before him.” Hirono added: “He very much is against women’s reproductive choice. . . . So there are so many indications of his own lack of credibility.”
It is not easy to unpack an argument that was packed so haphazardly. But Hirono appears to be contending that Kavanaugh is more prone to lie about sexual assault because his approach to judicial interpretation is extreme and deceptive, and because he is probably opposed to Roe v. Wade. These beliefs, she seems to be saying, are indications of bad character.
At one level, this is an indication of an outcome orientation that has seized partisans on both sides (including Hirono) in the Supreme Court/culture war/cage-match politics of our day. Given the stakes of the nomination battle, politicians and advocates are willing to wield any charge that comes to hand, from the very serious to the barely coherent.
But why this particular charge? Does Hirono actually believe that being pro-life (something Kavanaugh, by the way, has not acknowledged) and a judicial conservative makes someone more prone to lie about attempted rape? I guess it depends. The argument might go: Conservatives who talk about judicial restraint are really seeking the outcome of making abortion illegal. This is a form of deception. And because violating the autonomy of women (in this argument) is inherently misogynistic, therefore Kavanaugh is naturally an anti-woman liar.
Set aside for a moment the question of Kavanaugh’s guilt or innocence. That depends on the facts of the case (or cases), which should be carefully and fairly examined. The question I have for my liberal friends is different: Has Hirono let slip what you really think when people — people like me — call themselves judicial textualists who are also pro-life? Do you think this is not just mistaken thinking but a sign of absent integrity?
I also want to set aside the merits of the abortion issue itself. I only ask: Is it possible to believe, as a matter of principle, that rootless judicial activism is anti-democratic and dangerous? It is feasible that some people are genuinely disturbed by a medical procedure that begins with two genetically distinct human beings and ends with one? Is it reasonable to credit the good intentions of millions of men and women who want the circle of inclusion and protection to include every human life, at every stage of development?
There is, of course, a mirror-image problem of pro-life activists who regard pro-choice people as murderers. But that is precisely the point. There is a strong current of dehumanization running in our politics. The rival crew, it turns out, is not only wrong but evil. And how can mortal enemies embrace the give and take of a shared political project? Only the raw exercise of power can decide between them. The goal is no longer to win arguments but to crush opposition.
This is the moral risk of extreme political polarization: dehumanization. In our circumstance, it has emerged in the bipartisan dehumanization of political opponents and in the nativist dehumanization of certain groups: migrants, refugees and Muslims. This is not politics as usual; it is political pyromania. Our democracy is designed for disagreement. It is broken by mutual contempt.
Just like a five-alarm conflagration is probably the wrong time for a fire-safety class, I’m not sure how it is possible to teach the proper way to argue in a democracy during a nomination battle. But maybe the lesson should begin with members of the Senate, who are losing badly in a very different trial.