[This commentary is being published directly to Dwight Murphey’s collected writings website because, as an essay, it doesn’t quite fit the sort of thing the Journal of Social, Political and Economic Studies, for whom he usually writes, publishes.]

 

Outrage and Reason: Comments on the Kavanaugh Confirmation Travesty

Dwight D. Murphey

October, 2018

               The two seem diametrically at odds, but the recent travesty that preceded the confirmation of Brett Kavanaugh to the U. S. Supreme Court shows how appropriate it sometimes is for reason to be accompanied by outrage.  We should be outraged by the dredging up of a 36-year-old charge.  I’ll stop the sentence right there, because in order to find the whole affair offensive it should not be necessary to add that the charge was uncorroborated, had not been brought to light by the accuser for many years, and was part of a pre-announced intention to make a strident opposition to any Trump nominee to the Supreme Court part of the now two-year-old campaign to destroy Trump’s presidency.  No, the age of the charge should itself be enough to make people fiercely indignant, as something that doesn’t pass the smell test.

          The American people should be angry.  There’s certainly a need for that.  But the thrust of this commentary won’t be to express that rage.  It will be to shine as much light on the travesty as possible, and to place it in a broader context than appears simply from the episode itself.

Why is it preposterous to lend a respectful ear to a 36-year-old charge?

          Before we consider why time should matter, let’s consider the hypocrisy of those who advance the charge.  It is conventional wisdom today, among those who don’t bother to know better, that Senator Joseph McCarthy was viciously unjust when in 1950 he referred back to several State Department employees’ Communist activities in the 1930s (including the late ’30s).  “That’s ancient history” was a piously voiced truism of the day.  That, of course, was ridiculous; but it sufficed as convincing to those who are always ready to accept any argument that serves their purposes.  In 2018, such a dismissal of events years ago no longer served the purposes of those of the same mentality when it came to the Kavanaugh hearings.

          But the hypocrisy of the Left doesn’t go to the heart of the matter.  There are reasons why a substantial lapse of time can bear on the justice of making a claim.  Perhaps the foremost of these is that the lapse may reduce immensely the possibility of giving due process to the accused.  Memories fade or become warped; witnesses die, can no longer be located, or can no longer be identified; alibis become unsusceptible to proof; contexts can be lost sight of.  When we realize that the hearing of a case is never a direct perception of what happened, but is instead an attempt at reconstruction of an earlier reality, we see how tenuous justice is even in the most current of cases.  The outcome is often so uncertain that everyone waits with bated breath for the return of a jury verdict.  To think that even such clarity as is possible remains untainted after a lapse of several years is to ignore the difficulties of accurately reconstructing reality and of judging it when it is attempted.

          This is not to say that there are not instances where a dependable reconstruction can occur even long after an event.  The best example I know of is where DNA evidence establishes a link between a crime and an accused (or, as the case may be, proves the absence of a link).  That, however, was not what was involved in the allegations against Judge Kavanaugh.

          There is a question of the relevance of the earlier event and the matter under consideration.  One of the easiest ways for the hearing of a case to get off track and produce an unwarranted result is for a specific to be accepted, without more, as proof of a generality.  I call this “snap-shot justice.”  In the film Kraemer vs. Kraemer, Dustin Hoffman played a father who was as devoted to his son as any father could be.  When the son fell and was hurt at a playground while with the father, the fall was used as a dramatic point against the father in the court case between the father and his ex-wife.  The fall loomed large and suggested (but ought not to have been taken as having proved) an uncaring or negligent father; in other words, the specific was used to prove a generality, but without additional evidence as to the generality itself.  What was really relevant was not the snap-shot of the fall, but its place in the flow of the larger reality relating to the type of father he was.  In the Kavanaugh case, we are asked to believe that an event many years ago tells us a lot about the total flow of Kavanaugh’s life (which in so many ways was shown to be exemplary).  

There may be some events that are so heinous that they outweigh all else, but unless we are careful we run the risk of losing perspective.  In recent years, feminism has been extrapolated by its more radical elements into a form of ideological hysteria akin to the mentality that we are used to thinking of in connection with the Salem witch trials.  We need not accept every hyper-exaggerated sensibility, every claim of never-abating injury, that comes out of it.  In the context of a complicit media that hammers the exaggerations home, it requires a commendable detachment and mental independence not to be taken in.  Quite apart from the Kavanaugh case, the American public has been required in recent years to believe that emotional traumas can “never be gotten over,” producing psychic scars that permanently deform a person’s life.  While that may fit some instances, it is obvious that as a generalization it is an ideological over-reach.[1]  There are many things in life that we need to, and do, “get over.”  We do not stay in ashes and mourning forever even after the loss of a loved one.  Eventually, we smile and laugh again; and, though never forgetting the one we loved, go on with life.  Any semblance of mental health demands it.

There is a further reason time lapses are important.  I think it was the philosopher David Hume who made a point I felt meaningful several years ago.  It was that it is essential to the peace of mankind that conflicts eventually be put to rest.  Unless generations move on, forgiving and forgetting, there can be no end to the hatreds and blood-lettings from centuries-old wars.  Anyone conversant with history knows how many layers of conflict lie underneath the soil of even the most placid civilization. 

Not that moving on comes easily.  There are countless old wrongs that are still festering in the world today, such as Spain’s claim to Gibraltar, which it lost to the British under the Treaty of Utrecht in 1713.  This is compounded by the claims made today in the fevered ideological context of our time.  Attacks, for example, are made on our Founding Fathers because they lived at a time when slavery, accepted from time immemorial before them, still existed; and the restoration of good feeling that was encouraged between the North and the South at the end of the nineteenth century, pointing toward healing the wounds of the Civil War, has been repudiated by the agitation for tearing down Confederate statues throughout the South.  Whether painful memories should be kept alive, or allowed to fade, is something that has to be judged on a case-by-case basis, and will vary depending upon point of view and intensity of feeling.  But in the midst of it all, the desirability of putting things to rest should be considered a value.

Hume’s admonition applies to domestic grievances as much as to conflicts between peoples.  It is one of the important reasons for Statutes of Limitation that bar prosecutions after so many years.  The difficulties with due process are one reason, but Hume’s point is another.  The idea is that there should not be a perpetual resuscitation of every wrong – and there are plenty of wrongs done over the long haul of people’s lives.  Let’s say that Kavanaugh did in fact do, 36 years ago when in high school, the drunken effort Ms. Ford says he did.  Should that be a point of conflict almost four decades later?  (If someone answers, “yes, it should; he was up for a lifetime appointment to the nation’s highest court,” I would remind that person of my earlier discussion of relevance.)

Exaggerated ideology has led the American opinion-elite to a confused and contradictory perception of women

          There is an odd contradiction in the way women are perceived in the United States today (perceived, that is, by those who form and insist upon what they consider acceptable opinion).  On the one hand, women are seen as perky, alert, smart, motivated, capable – and as plenty tough, indeed “combat ready.”  This is the way they have been portrayed in television commercials for many years, opposite bumbling men and boys.  No doubt, that’s been propaganda, drumming home a point of view.  But it is also pretty accurate (obviously with the exceptions that would apply to generalizations about any group of people).  Women with those characteristics are plentiful around us (and at the same time there are a good many bumbling men, though as a generalization the description is sufficiently unfounded as to be stereotyping and bigotry, much indulged in in this context even though there is a constant complaint against ostensible stereotyping and bigotry as unacceptable in almost everything else).

          On the other hand, women are presented as frail, emotionally vulnerable, easily (and often) victimized, and overall in need of an overweening solicitude, lest their feelings be hurt and their defenselessness laid bare.  Nowhere did we see this more than in the way Ms. Ford’s accusation and she herself were treated in the Kavanaugh matter.  The ideological warping vis a vis women was the key factor in her 36-year-old allegation’s being met with respect rather than either spurned with contempt or laughed at as true comedy.  “She deserves to be heard” was the Democrats’ mantra, and was acquiesced in by the Judiciary Committee’s Republican majority because in today’s America only the rare fighter would dare challenge the orthodoxy.

          And then, the Committee having brought her on to testify, she gave her long and to many believable account with a crack in her voice, a tear never far below the tremor of her speech.  She was frailty personified as she recounted the pain she continued to feel from that never-to-be-forgotten-or-forgiven event of 36 years ago.  By mixing this frailty with “the courage to come forward,” she embodied both poles of the contradiction.

          Most tellingly, the solicitude given to her extended to the questioning by the attorney for the Committee’s Republican majority, a woman chosen intentionally for her sex so as not to give the impression that a frail woman was being pounced upon by a man.  The very choice of a woman for that purpose reflects obeisance to the ideology.  The obeisance continued in the type of questioning that was done.  Much of the time, it seemed the attorney was befriending the witness, bending over backwards not to confront her, since that would be taken as bullying.  A number of very telling subjects that would normally have been part of the examination weren’t even broached.  Rather than being subjected to a vigorous cross-examination, which is generally considered the most truth-revealing part of a hearing, Ms. Ford was tickled with a feather-duster.  An experienced trial attorney, if given the normal latitude for an aggressive cross-examination, would have left her in shreds, and totally discredited.

          There was much argument among the Senators about “burden of proof,” which some argued should not apply to the accuser in a hearing that is akin “to a job interview.”  Indeed, it was asserted passionately that “victims of sexual assault are to be believed,” a maxim that does away with the need for any proof whatsoever.  The ideology shows itself here to have little or no regard for the rights of the accused.  To call somebody a “victim,” or to make someone face an accusation without any substantiation, pre-determines the truth of the accusation; and once the perception of victimhood sinks in, the case is tantamount to decided. 

It isn’t even quite enough to say, evoking the formalities of adjudication, that “the burden of proof has shifted to the accused to show he’s not guilty.”  It’s a worse scenario than the mere verbalization of this suggests.  A defense in such an ideologically-affected case is made virtually impossible; the contortion involved is like making the accused climb a greased pole.  It’s odd how little comprehension of this is shown by someone who says  Kavanaugh’s defense was unbecoming; he should have shown the dignity of a Supreme Court judge, not anger.”  Such an assessment comes, of course, from someone who has never tried to climb a greased pole.

          One last point about the ideological skewing.  The imbalance that has come to exist regarding men and women was evident in the sympathy for Ms. Ford’s pain (however genuine) and, at the same time, a total lack of empathy toward Kavanaugh’s anguish.  One was a sensate human being, the other not.  As a man, Kavanaugh was presumed unfeeling.  If Ms. Ford ever showed any remorse over bringing up a decades-old accusation, I missed it.

The spectacle centered around Kavanaugh’s nomination, but that was a mere incident to the Left’s, and the Democrats’, determination to oppose any nominee Trump put forward.

          The determination to fight tooth-and-claw against any Trump nominee was made clear well in advance of Kavanaugh’s nomination.  In light of that announced intent, it is not surprising that delays, road-blocks and spurious claims were thrown into the mix, or that the Democrats would stay true to their lock-step voting (just as they did in the Clinton impeachment trial, where they voted unanimously for acquittal despite the irrefutable DNA evidence from the shoulder of Monica Lewinsky’s dress).

          Two reflections about this are especially pertinent.  One is that it was a mistake for the country to think the real issue was the Ford vs. Kavanaugh face-off.  The spectacle was a distraction; and the more fascinating it was, the more it took everyone’s mind off the larger issue.  Indeed, it wasn’t just a matter of obscuring that the fight was really over any nominee, not just Kavanaugh.  Beyond that, there were serious, even existentially important, national issues at stake, which weren’t the subjects of the confirmation hearings but which lay behind the adamant opposition to any nominee and the equally adamant support for it.  The people of the United States today are locked in acrimony over vitally important issues, such as the immigration invasion that threatens a demographic obliteration of America as we have known it, the hollowing-out of American manufacturing, the suppression of any idea that does not conform to the demands of what is called “political correctness,” the encouragement of “identity politics,” the Left’s insistent remaking of American norms and mores – and many more.   The fight over Kavanaugh, and the unending drumbeat of “gotcha” accounts to produce a “smoking gun” against Trump and his administration, are surface phenomena, the outer crust of a much deeper conflict.

          The obstruct-by-any-means-necessary syndrome (the word “tactic” is too limited to describe what was done) used against the Kavanaugh nomination far exceeded what is acceptable even in the rough-and-tumble politics of the Senate (at one time described as “the world’s greatest deliberative body”).  This leads to the second reflection, which is that when considered in the context of the long-continued, unabated effort to destroy the Trump presidency by the combined forces that dominate American culture, the syndrome should be recognized as anti-democratic.  It has sought to overturn the result of the 2016 election, not by persuasion and winning future elections, but by “the politics of personal destruction.”

          This inconsistency with democracy is rooted in the chasm that has been opened up within American life, separating the American people into what are in effect two nations. The beginnings of this separation can be traced back a long way.  I have often stressed in my writing the “alienation of the intellectual” that began in the early nineteenth century.  The dominant artistic-literary-academic culture has for almost two centuries thought poorly of – even excoriated – virtually all segments of the American people.[2]  (That this is so is no doubt hard for anyone to accept who has not studied the long flow of American intellectual history.  Almost nobody has the time or inclination to make such a study.  Those who want to dig deeper into it are invited to read my book Liberalism in Contemporary America, which is on my collected-writings website.)  The alienation has been especially divisive since the Left shifted gears after World War II into an emphasis on ethnic identity politics.  There is, of course, even more to it than that (such as the attack in America’s educational institutions on the country’s past, which recent generations have been drilled into thinking was morally reprehensible).  In any event, we find ourselves with a country divided between the cognoscenti (with the millions who share their worldview and crave the acceptance that comes from holding fast to the ever-changing demands of social virtue[3]) and the “deplorables” as described by Hillary Clinton.  The “deplorables” are the millions of people of middle America. 

          Almost all of the aggression arising from this chasm comes from the Left.  At least for now, the deplorables are relatively passive.  If they are to remain so, they will have to count on government to do its job of protecting people and property, and maintaining order.  This dependence is misplaced to the extent there is a paralysis of will to restrain the agitations, such as we see in the “sanctuary cities” whose leaders thumb their noses at enforcement of immigration law.  There is great pressure by the cognoscenti for precisely such a paralysis.

          The crisis of democracy comes when the Left, the Democratic Party, and self-serving commercial and agricultural interests succeed in flooding the country with non-citizens (all the while complaining that “Republicans want to block people’s right to vote”) and keep up their drumbeat to overturn Trump’s presidency.  If over time this moderates, the “crisis” will be temporary and hopefully soon forgotten.  If it does not, then indeed it is a crisis.

A civilized society sometimes has a “weak underbelly.”  This happens when the passion of fanatics erases the moral strength of the average person, turning normally-held values and convictions into jelly.

          I first noticed it in the late 1960s.  American society was rife with angry declamations accompanied by acts, often extreme and sometimes obscene, of social defiance.  Was this met by a stalwart defense from those whose patriotism was challenged?  It would be too much to say that there was no defense, but what was noticeable among the students at the mid-western university where I taught was a moral, intellectual loss of nerve.   As the attacks came pouring in, they were met by weakness and condonation.  The Irish poet W. B. Yeats’ post-World War I poem came to mind: “Things fall apart; the centre cannot hold; mere anarchy is loosed upon the world… The best lack all conviction, while the worst are full of passionate intensity.”  What Yeats saw was the soft underbelly of civilization, a condition not unique to his time.  There is an unfortunate weakness in the moral architecture that binds a society together.

          What has held Trump, and eventually Kavanaugh, hostage has not been so much the assault from the Left and the bloc-loyalty of the Democrats as it has been the equivocations of a small margin of the Republicans themselves.  Ostensibly, the Republicans have had the majority in both the House and the Senate – a majority that has not been able to act like a majority.  The condonation extended to the outrage at the Kavanaugh hearings was made necessary by a constant concern over whether one or two Republican votes could be depended upon.  This means, in effect, that the balance of power has been with those so aptly called “Republicans in name only.”  Generally, it is good to give people of every persuasion credit for honest conviction.  That is harder to do with those who embrace one party label and then most often harbor sympathies for the other side.  It smacks of political dishonesty.  Whatever it is, it is not a forthright affirmation against those who come on “with passionate intensity.”

The United States Supreme Court has long-since become a panel of philosopher kings, so that only part of its role is the traditional one of being the final arbiter of legal questions.  This puts the confirmation hearings on a fictional basis – in effect, a charade.

          It is a fiction that the U. S. Supreme Court is any longer an exclusively or even primarily a judicial body.  For many years, it has taken on top-tier legislative functions, becoming a super-legislature to steer the law and the culture in whatever directions the evolving Zeitgeist among the opinion-makers calls for. 

          This has been a long time in coming.  An intellectual attack on “mechanical jurisprudence” (the attackers’ derogatory label for adherence to existing law) was made by the American Left early in the twentieth century, and was reflected in such schools of thought as “sociological jurisprudence” and “legal realism.”  The thinking can be found in the writings of Roscoe Pound and Jerome Frank, among many others.  The deviation from law as an established body of legal doctrine did not start with the Supreme Court, as egregious as its inventions have been.  Rather, the Court followed what had become the dominant outlook among what we have referred to here as America’s cognoscenti.

          The reason Supreme Court confirmation hearings are now a charade is that everyone pretends the concern is about judicial qualifications, not ideology.  No doubt, a new justice will, along with colleagues on the Court, need to deal capably with a number of complex legal cases, and in doing so will be performing the traditional legal function.  But the “elephant in the room,” which everybody realizes but no one will acknowledge, is ideology.  The adherence to the traditional role of law and the Court is a form of “the tribute that vice pays to virtue.”  Since “conservative” judges do not want the Court to continue as a cultural legislator, the fictional premise for confirmation hearings suits their purposes.  They would just as soon the legislative function disappeared altogether.

Some thoughts not directly related to the Kavanaugh conflict: the much-over-simplified complexity of male-female relationships.

          Because it isn’t established that Kavanaugh and Ford had any relationship whatsoever, it wouldn’t be fitting to talk, as though they applied to the case at hand, about the warpings that are produced today by the reductionism that radical feminist ideology imposes on male-female relationships.  A discussion of them is called for not because they bear directly on the Ford accusation, but because so much of what we have discussed relates to closely-associated issues of ideology.  This is a good time to think about how far off-course the widely accepted warping has taken us.

          A part of the plot in a medical drama on television recently involved a teenage girl who was said to have been raped.  When the girl objected to having a “rape kit” examination done and said “I feel so guilty,” her mother told her categorically “you aren’t guilty; you were raped.”  With that categorical assurance, viewers were in effect invited to accept one of the standard shibboleths of radical feminist ideology that has come to be uncritically accepted.  What the shibboleth would have people ignore is that there is often an intricate context of human interaction that precedes and accompanies the intimacies of sex.  Of course, the word “rape” is strong enough to preclude any consideration of that complexity.  But if we do not let the word overpower us, we are able to see that only a small fraction of sexual contact takes the form of a pristine girl being seized and overcome by a muscular man.  In all other cases, the situation isn’t that simple.  Instead, there is a vast spectrum of interaction that is possible.  Along that spectrum, there are all degrees of possible feminine involvement, everywhere from passive to robust, even raunchy.  Everyone not wearing today’s blinders knows that women can be, and often are, provocative.  In fact, we are hit over the head with a sexualized culture in the United States today.  We see it in our apparel, in our language, in the readiness of unmarried couples to move in together or of women to go to men’s hotel rooms with them, in our movies, on television, in our computerized world.   It doesn’t take an oversensitive prig to point this out.  It takes an ideologue to ignore it.

          Nor are we to assume that all male-female contacts are the one-time contacts that lend themselves to simplification (although even then not justifying over-simplification).  There is often a period of interaction, sometimes long, sometimes short.  This brings in all of the nuances that a continuing relationship can have.  And that’s the sort of thing that can hardly be captured in a nutshell.  Outsiders sometimes find it necessary to judge them, but they do so at the peril of injustice.  A “know it all attitude” is sorely misplaced.  

          Further, the current ideology insists that men are not to be human beings, but blocks of granite, in their intimate relationships with women.  They are commanded to turn their emotions around in an instant, becoming desexualized no matter what the sexual context is.  This is, of course, to dehumanize them.  It is a view that can only come from someone within an ivory tower, not from somebody who has been out in the world as it exists.

Conclusion

          Much more could be said on each aspect of the above discussion.  In a way, this commentary is an invitation to further study.  However, here’s a final admonition: Do not, if you can, cause reason and deeper understanding to “sickly o’er” your outrage over the Kavanaugh fiasco with what Hamlet spoke of in his speech to the players as “the pale cast of thought.”  We should be outraged.

ENDNOTES

[1]   I have written a great deal on comparative social philosophy and have repeatedly made the point that human beings find it necessary to formulate mental constructs to put together the multiple facets of reality.   Although  it is true of reality in the largest sense, for which entire religions and cosmologies are formed, it is true, too, with regard to understanding society, history and human affairs in general.  In this context, I have stressed the necessity of “ideology.”  It may seem strange for me, then, to use the word “ideology,” as I so often do, in a pejorative sense.   A negative use of the word is justified, however, whenever a system of thought serves as a mental straight-jacket, seeing some things and turning a blind eye to others.  (It seems certain that all systems of thought do this to some degree.)  We are steeped in that kind of abuse today, and it is well that we take a dim view of it.

2.   An excellent example of this alienation, written by thirty highly literate American intellectuals, can be found in the 1922 book Civilization in the United States, edited by Harold E. Stearns.  The authors reviewed a number of aspects of American life, and found it spiritually and intellectually soulless.   The alienation of the intelligentsia raises many subtle and difficult issues, well worth considering seriously but necessarily beyond  the scope of this essay.  It isn’t too much to say that the alienation has at times reached a crescendo of hate, such as we see in our current period.

3.   In this commentary, I am choosing not to use the fanciful word I have coined to describe this blanket of conformed opinion – “PeeWOCs” – which stands for “the People Whose Opinions Count,” since I think it may distract readers here.  Nevertheless, it speaks to a major reality in American life, which needs to be taken into account if our society is to be understood.  Here’s an explanation I have given that shows its vast extent: “The ‘PeeWOCs’ are led by academia, the media, the entertainment industry, the legal profession and the major corporations (among others).  To these elements are to be added the millions of ‘college educated’ Americans who find it both virtuous and wise to adhere to whatever at the moment is ‘politically correct.’  When we consider that the Left has predominated in American schools of arts and science (as well as colleges of education) for at least the past century, it can’t be surprising that its worldview permeates this ‘educated’ population.”  The word I have coined has the advantage of being much broader than the words “cognoscenti” and “opinion elite” I’m using here.

 

 

 

 



[1]   I have written a great deal on comparative social philosophy and have repeatedly made the point that human beings find it necessary to formulate mental constructs to put together the multiple facets of reality.   Although  it is true of reality in the largest sense, for which entire religions and cosmologies are formed, it is true, too, with regard to understanding society, history and human affairs in general.  In this context, I have stressed the necessity of “ideology.”  It may seem strange for me, then, to use the word “ideology,” as I so often do, in a pejorative sense.   A negative use of the word is justified, however, whenever a system of thought serves as a mental straight-jacket, seeing some things and turning a blind eye to others.  (It seems certain that all systems of thought do this to some degree.)  We are steeped in that kind of abuse today, and it is well that we take a dim view of it.

[2]   An excellent example of this alienation, written by thirty highly literate American intellectuals, can be found in the 1922 book Civilization in the United States, edited by Harold E. Stearns.  The authors reviewed a number of aspects of American life, and found it spiritually and intellectually soulless.   The alienation of the intelligentsia raises many subtle and difficult issues, well worth considering seriously but necessarily beyond  the scope of this essay.  It isn’t too much to say that the alienation has at times reached a crescendo of hate, such as we see in our current period.

[3]   In this commentary, I am choosing not to use the fanciful word I have coined to describe this blanket of conformed opinion – “PeeWOCs” – which stands for “the People Whose Opinions Count,” since I think it may distract readers here.  Nevertheless, it speaks to a major reality in American life, which needs to be taken into account if our society is to be understood.  Here’s an explanation I have given that shows its vast extent: “The ‘PeeWOCs’ are led by academia, the media, the entertainment industry, the legal profession and the major corporations (among others).  To these elements are to be added the millions of ‘college educated’ Americans who find it both virtuous and wise to adhere to whatever at the moment is ‘politically correct.’  When we consider that the Left has predominated in American schools of arts and science (as well as colleges of education) for at least the past century, it can’t be surprising that its worldview permeates this ‘educated’ population.”  The word I have coined has the advantage of being much broader than the words “cognoscenti” and “opinion elite” I’m using here.