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Kavanaugh isn’t entitled to a Supreme Court seat, just as men aren’t entitled to sex

Trump saying the judge is “born” for the high court is part of the air of male entitlement embedded in this debate.

President Trump introduces his Supreme Court nominee, Brett M. Kavanaugh, at the White House on July 9. (Leah Millis/Reuters)

Last week, columnist Dennis Prager made the disgusting suggestion that Brett Kavanaugh belongs on the Supreme Court, even if Christine Blasey Ford’s accusation that Kavanaugh sexually assaulted her in high school is true. Evangelist Franklin Graham called her charge “not relevant.”

Sen. Orrin Hatch (R-Utah), a longtime Senate Judiciary Committee member, also implied Ford’s allegation was irrelevant, saying that even if what she says is true, “I think it would be hard for senators to not consider who the judge is today. That’s the issue: Is this judge a really good man? And he is. And by any measure, he is.”

At the Values Voter Summit on Friday, Senate Majority Leader Mitch McConnell (R-Ky.), the man who, more than anyone, will determine whether Kavanaugh is confirmed to the high court, said, “In the very near future, Judge Kavanaugh will be on the United States Supreme Court,” adding, of Ford’s anticipated hearing, “We’re going to plow right through it and do our job.”

Then, Friday night at a campaign rally in Springfield, Mo., President Trump called Kavanaugh a “fantastic man” and said “he was born — you talk about central casting — he was born, they were saying it 10 years ago about him, he was born for the U.S. Supreme Court. He was born for it. And it’s going to happen,” adding, “We have to fight for him, not worry about the other side, and, by the way, women are for that more than anybody would understand.”

It’s as if they feel Kavanaugh is owed a lifetime seat on the highest court in our nation, allegations be damned.

We don’t know what, if anything, happened in the early 1980s between Kavanaugh and Ford, who told The Washington Post that Kavanaugh drunkenly held her down, with another teenager present, covered her mouth and tried to take off her clothes. We don’t know what, if anything, happened between him and Deborah Ramirez, who told the New Yorker that at a drunken party during their Yale undergrad days, he thrust his exposed genitals at her face in front of other classmates. I’m uncomfortable with any suggestion that we should automatically believe either Ford or Ramirez. I support them coming forward and calling for thorough investigations.

But what we certainly know is that Kavanaugh doesn’t have a right to a Supreme Court appointment, any more than men have the right to do what they want with women’s bodies. Yet when we talk about Kavanaugh as not only qualified for a seat on the high court but also as though he’s entitled to it, the discussion, unintentionally or not, replicates our debates about sexual assault in general.

Kavanaugh’s Senate hearing isn’t a trial. The standard isn’t ‘reasonable doubt.’

Let’s step back: Of course, some sexual assaults are committed by psychopaths, but the fact that sexual assault is such a widespread phenomenon (1 in 3 women in the United States will experience some form of sexual violence in their lifetime) reflects the reality that sexual assault is a product of widespread social and cultural beliefs and assumptions. Once upon a time, under the backward legal concept of “coverture,” women were legally the property of men; during slavery in the United States, rape of black women by white men was appallingly common and accepted; marital rape wasn’t codified on the books as a crime in all 50 states until 1993.

Thankfully, over time, laws and norms have changed. And in some ways, we’ve moved forward as a society — but not nearly as much as we like to think. It’s only recently that mainstream culture started embracing the idea of “affirmative consent,” that a woman doesn’t consent to sex simply by being present, or merely by not uttering the word “no,” or because of what she’s wearing, or by being flirtatious — that she alone gets to say whether she consents to sexual contact, subject to reconsideration at any stage of an interpersonal interaction.

But to some Kavanaugh defenders, consent almost seems irrelevant. Even if Kavanaugh assaulted Ford in the way she says, the attack she describes could be categorized, according to Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, as “boorishness” or “horseplay.” Chalk it up as “stupid, bad or drunken behavior,” tweeted former GOP congressman Joe Walsh. As the saying goes, it’s “boys being boys”: to get not only what they want but also what they think they deserve. Which, according to this logic, isn’t sexual assault at all, but typical, red-blooded behavior by rightfully dominant men. “If somebody can be brought down by accusations like this,” a lawyer close to the White House told Politico, “then you, me, every man certainly should be worried. We can all be accused of something.”

But what Ford alleges isn’t horseplay. It isn’t — at least, for heaven’s sake, shouldn’t be — typical. It’s illegal. It’s immoral. It’s cruel. And if true, what Ford and Ramirez have alleged reflects a mind-set that what men want is all that counts. And on one level, those waving the accusations away as mere obstacles on the way to Kavanaugh’s inevitable coronation reflect the same.

No matter how much it appeared, until last week, that he was cruising toward confirmation, the process isn’t over. This isn’t a criminal trial, it’s a Supreme Court confirmation. Both before and after these allegations surfaced, it was on Kavanaugh to demonstrate to Americans, via our elected representatives, that he’s worthy of lifetime tenure on the highest court in the land. Not the other way around.

If Kavanaugh attacked Ford, what he’s done since doesn’t wipe the slate clean

On Monday, though, Kavanaugh wrote to the chairman and ranking member of the Judiciary Committee, affirming his intention to come before the committee this week, “to defend my integrity and my name” against what he calls “smears.” Which he should — defending himself in an impartial hearing is something he is entitled to do. But his description of the allegations against him as a “frenzy” to “block this process and a vote on my confirmation,” and his characterization that they “debase our public discourse,” is getting too far ahead of where we are. Hearing Ford’s account isn’t a block on the process; it’s an essential part of the process. And what she and Ramirez have said doesn’t debase public discourse; it’s exactly the discourse we should be having.

To see it otherwise is to ratify male entitlement, the notion that what men want and what they’re entitled to are the same thing. That is how much of our society operates: Men can keep bulldozing through life, misogyny fueling inevitability while evading accountability. But this situation is different. Kavanaugh isn’t owed a lifetime position on the most powerful court just because Trump or McConnell say so, because he’s already a federal appeals court judge, he “went to Yale Law School” or is a swell “carpool dad” and already seemed likely to be confirmed. It’s not yes, yes, yes until someone says no. Just as at any drunken dorm party, it’s no until everyone involved affirmatively says yes.

Last week, Trump complained to Fox News’s Sean Hannity: “I don’t think you can delay it any longer. They’ve delayed it a week already.” Apparently, the guy who once gleefully said he can “grab ‘em by the p----” feels entitled to have his nominee sail through. But the Senate still hasn’t given its consent. No matter how preordained that once seemed, the answer can still be no.