The national uproar that rose against Judge Brett Kavanaugh following Christine Blasey Ford’s allegations of sexual assault decades earlier was a travesty of justice—in large measure because justice was never really the issue. The uproar was not about righting a past wrong. It was designed to influence a political body that was in the middle of making a political decision. It was supposed to tip the scales against Kavanaugh in a process that Democrats, discomfited by their roles as mock criminal prosecutors, took to describing as a “job interview.”
From the start, the lack of hard evidence in the case presented a problem. How could anyone arbitrate the competing claims of Ford and Kavanaugh when claims were all there were? The solution seized by some of those who wanted the charge to stick was to use their own personal experiences as a peculiar form of supporting circumstantial evidence. In a powerful essay entitled “I Believe Her,” the Atlantic’s Caitlin Flanagan revealed the occasion on which she, too, had been assaulted as a young girl in high school. CNN political contributor Symone Sanders confessed that she had also been the victim of a sexual assault in college—and because of what had happened to her, she argued, “there is no debate” about Kavanaugh’s guilt.
Something snapped in the media psyche. A torrent of influential reporters, columnists, politicians, and celebrities began exposing their most cherished belief systems to the public. They turned a political melodrama into a morality play. Those who jeered at Kavanaugh were certain that he was guilty not because of Ford’s account; rather, they knew because of his physical, familial, and genetic features. He was “white,” “male,” “angry,” “rich,” or some combination of these characteristics.
They believed these traits undermined the legitimacy of his efforts to defend himself from career-killing accusations of violent misconduct. And they were shocked beyond measure when their certitude did not carry the day. When did it become acceptable for a critical mass of influential and respected figures to express the kind of unenlightened chauvinism we associate with prejudice as openly as the anti-Kavanaugh chorus did? How did the choristers know there would be no repercussions for them if they did so? At what point did a popular culture obsessed with stigmatizing monoculturalism adopt a form of it—against white males—to try to take down a Supreme Court nominee?
The answer can be found in the way modern social-justice activism works in tandem with the identity politics that forms its foundational ethos. In my forthcoming book on the subject, Unjust: Social Justice and the Un-Making of America, I explore the vindictive philosophy to which Brett Kavanaugh was served up as a sacrifice. Social justice is an ethos dedicated to subjective definitions of equality and egalitarianism as they relate to class, race, and sex, and it embraces collective retribution to achieve its goals. On its face, the definition of “social justice” is not antithetical to fundamentally American notions of fairness, recompense for the genuinely aggrieved, and societal reconciliation. Today, though, the doctrine’s adherents are less interested in rapprochement than revenge. The social-justice left has embraced concepts that an earlier generation of civil-rights activists fervently opposed: racial hierarchies and genetic determinism.
The redefinition of classical civil-rights issues has swept through the left like a twister. “The legal gains on which the ACLU rests its colorblind logic have never secured real freedom or even safety for all,” wrote UCLA Critical Race Studies Fellow K-Sue Park of the American Civil Liberties Union in the wake of the traumatic 2017 confrontation between white nationalists and counterdemonstrators in Charlottesville. Two years earlier, Park’s employer, the University of California system, defined the phrase “when I look at you, I don’t see color” as one of several “microaggressions” that perpetuate “the myth of meritocracy.”
In a Washington Post op-ed, Northwestern University president Morton Schapiro argued that resegregating his school’s lunch counters by race was a way of liberating his students from “uncomfortable learning.” Film and television productions are attacked for casting actors who “steal” the experiences of the characters they are playing if they don’t exhibit those character’s traits in real life. Literary institutions such as Kirkus Reviews have found themselves compelled to assign reviewers to works only if those reviewers share the protagonist’s identity. In the name of progress, benign ghettoization is making a comeback.
For the social-justice left, Brett Kavanaugh represented a dominant demographic group, and he was therefore due a comeuppance for that reason alone. To those for whom Kavanaugh’s guilt was a foregone conclusion, not only was the presumption of innocence an overly charitable dispensation; so, too, was the notion that he should be allowed to defend himself. At the very least, his most fervent critics appeared to suggest, Kavanaugh should have had the decency to let the allegations against him stand, as a courtesy to his accuser and those like her.
To Quartz’s Ephrat Livni, Kavanaugh wasn’t entitled to “any process” whatsoever. Benjamin Wittes of the Brookings Institution argued that “Kavanaugh cannot blame or attack or seek to discredit a woman who purports to have suffered a sexual-assault at his hands.” If he did, he’d be no better than Harvey Weinstein, smearing his victims in a final, flailing effort to save himself. Yahoo’s Matt Bai said Kavanaugh “makes a victim of [Ford] all over again by essentially calling her delusional.” As a service to the #MeToo moment’s reckoning with the abusive men hiding in plain sight, Bai suggested that Kavanaugh should at least allow for the possibility that he was guilty of a sex crime. Bai even drafted a confession for the judge.
This is a natural outgrowth of an idea popularized by the left’s social-justice enthusiasts even before the movement sparked by Weinstein’s outing: “the right to be believed.” According to this, those people who are part of a victimized class in America deserve to have their claims taken as a given because of the victimization that they and people like them have experienced. “To every survivor of sexual assault,” Hillary Clinton announced in 2016, “you have the right to be believed.” For example, Crystal Magnum, an African-American stripper who accused the members of Duke University’s lacrosse team of gang rape in 2006, enjoyed the right to be believed. The young men she falsely accused had their names and reputations permanently besmirched. Rolling Stone’s Sabrina Ruben Erdely manipulated adherents of this doctrine when she spun an implausible yarn involving ritualistic sexual violations at the University of Virginia in 2014. The tale cost her publication $1.65 million in damages and destroyed her career, but the ordeal that Erdely’s victims endured will never be fully known. And these were just the cases that made national headlines. How many more targets of this ideological crusade are unknown to us?
This is nothing less than an assault on the rule of law, which is based on the proposition that we judge allegations of malfeasance on a case-by-case basis according to the facts alone. To be sure, the alleged victims of sex-related offenses deserve sympathy, a fair hearing, and the understanding that coming forward is often a harrowing experience. They do not, however, have a right to the kind of reflexive deference that would deprive the accused of their rights.
The “right to be believed” is central to another tenet of the modern social-justice movement—the notion that the United States is culturally and institutionally ill-equipped to fairly adjudicate alleged sex crimes. They call it “rape culture.” Like many of the social-justice left’s core ideas, this one is rooted in something real. The #MeToo moment has revealed vile conduct in private American businesses and institutions in which an unspoken creed has shielded powerful men from the consequences of their abusive actions. But the long-overdue social, professional, and criminal penalties meted out amid this great social awakening were the result of overwhelming evidence implicating the guilty parties—not mere assertions.
The presumption that America not only overlooks but condones sexual violence against women has given rise to a set of assumptions that undermines the conduct of impartial justice. At the root of this idea is the belief that sexual-assault statistics are deceptively low because the behavior that constitutes an assault is too narrowly defined.
The due-process standards for prosecuting this type of violent criminal conduct places an undue burden on the accuser, the thinking goes, and therefore keeps victims from sharing their stories. The evidentiary thresholds to establish guilt are too high; the demand that a victim be made to confront her abuser is too traumatic. These foundational conceptions of what constitutes probity in the enforcement of law are a product of a time before feminist justice ethics. At a conceptual level, so the argument holds, justice needs a reboot.
These assumptions are embedded in the way that colleges transformed Title IX protections for students into a means by which social justice could be pursued outside of a courtroom for those claiming they had been sexually assaulted. But expanding the definition of what constitutes a victim of a crime did not result in more justice. It resulted in more victims. Investigators have found that the standards colleges applied to the adjudication of sexual-assault claims prevented both the accuser and the accused from taking full advantage of their Fifth and Sixth Amendment rights. The accused have been compelled to issue disingenuous confessions; accusers have been forced to issue Soviet-style denunciations of their peers. Accusers were deprived of counsel and have had to prosecute their own alleged abusers themselves. Consensual relationships were criminalized.
Colleges have spent hundreds of millions of dollars defending their conduct against students who have filed complaints with the Education Department’s Office for Civil Rights alleging that their cases were mishandled by their college tribunals. The journalist Emily Yoffe observed that, from 2006 to 2010, the higher-education insurance group United Educators paid out $36 million to students involved in the adjudication of sexual-assault claims. “The vast majority of the payouts, 72 percent, went to the accused,” she wrote, who were “young men who protested their treatment by universities.”
Worst of all, the relaxed standards have irreversibly set back the cause of true justice. Real victims of abuse and assault now must compete to have their claims heard amid the proliferation of fabulist tales involving gang-rape rituals performed by cultish fraternity bros. The experience of alleged victims whose cases find their way into a real courtroom is tainted by association with these ethically questionable extrajudicial institutions. No matter how you define it, this is not justice.
The social-justice movement has adopted a set of unfalsifiable assumptions. Its leaders believe, to some degree, that the United States is riddled with flawed institutions that are incapable of achieving justice because they are deliberately blind to the conditions that would yield justice. They believe that an immutable set of traits and experiences are associated with race, gender, and sexual identity. They believe in fairness and equality writ large, but also believe that these conditions can never be achieved without oppressive social leveling. Negative discrimination by class or birth no longer has a stink about it, so long as the discrimination targets hereditary “privileges” afforded to those of fortunate birth.
These assumptions give way to misandry and prejudice, and they have been internalized by some of America’s most prominent and influential figures. By the time Brett Kavanaugh found himself in the dock, the stigma associated with what in any other context we would call bigotry had been rebranded as a new species of enlightenment.
“A lot of white men don’t know what it’s like to feel threatened, powerless, and frustrated,” said Jennifer Palmieri, former communications director for Hillary Clinton’s campaign, presuming to know not just Kavanaugh’s personal history but also that of anyone else who looks like him. “As we go through the reckoning of this lopsided power balance, there’s going to be a lot more of this.”
“It’s not just that white men are allowed to be angry and women are not; it’s that white men’s anger can be used to their benefit,” the author and columnist Rebecca Traister wrote. “We reflexively understand the anger of white men, especially when used to convey how unfairly they’ve been treated, as righteous and correct.”
New York Times columnist Maureen Dowd described Kavanaugh’s emotional testimony in his own defense as a display typical of “entitled white men acting like the new minority, howling about things that are being taken away from them, aggrieved at anything that diminishes them or saps their power.”
For the Washington Post’s Jonathan Capehart, Kavanaugh’s affecting performance was a “galling” “display of white (male) entitlement.” To his colleague Jennifer Rubin, it was a “frightful episode of white male anger determined to prevent non-white-males from depriving them of their due.”
“He just looked like an entitled, privileged white male, whining because he’s unaccustomed to losing anything,” McClatchy columnist Erika Smith confessed, “much less a lifetime appointment to the nation’s highest court that he always expected to get.”
“Kavanaugh, by his words, actions, and demeanor right now is either a man who has been horribly wronged or a stunning personification of white, male privilege on display,” former CBS News anchor Dan Rather postulated. Though he declined to hazard a guess as to which condition he thought was accurate, you could probably take a successful guess.
“Kavanaugh Borrows from Trump’s Playbook on White Male Anger,” read the New York Times headline adorning ostensibly straight reporting on Kavanaugh’s testimony. According to Esquire’s Charles Pierce, “the Hour of Angry White Male Rage had come ’round at last.”
New York Times contributing writer Bryce Covert was awed by the privilege inherent in Kavanaugh’s attempt to defend himself against career-ending criminal allegations. “Such power, such prestige, is his birthright as a white man,” she wrote dismissively. “Not getting what he wants is the same as losing his very life.”
In an especially supplicative display, ABC News analyst Matthew Dowd offered up himself and his fellow white males as sacrifice to atone for the sins of Brett Kavanaugh and those who looked like him. “We as white male Christians should do what real leadership demands and practice a level of humility which demonstrates strength by stepping back from the center of the room and begin to give up our seats at the table,” he submitted.
In the middle of a segment that was billed by CNN’s Brian Stelter as an example of the kind of expertise we should see more of on cable television, the feminist writer Jessica Valenti attributed Republican support for Kavanaugh to bigotry. “I think the reason that so many on the right were really praising this sort of rageful diatribe that he went on was that he was epitomizing this moment of backlash that we’re in among privileged white men who are furious about being finally held to account,” she opined with what we must assume amounts to expertise.
“Guess who’s perpetuating all these kinds of actions? It’s the men in this country,” Senator Mazie Hirono asserted. “Just shut up and step up.”
“What we got last week was a view into the soul of Trumpism,” New York Times economics columnist Paul Krugman insisted. “It’s about the rage of white men, upper class as well as working class, who perceive a threat to their privileged position.”
Convinced of the entirely unsupported notion that Kavanaugh lied to Senate Judiciary Committee members about his high-school antics and the extent of his drinking as a teenager, Chicago Tribune columnist Rex Huppke suggested that Kavanaugh would never have receive the benefit of the doubt if it weren’t for his external features. “They’re called ‘little white-male-privilege lies,’” he wrote. “Lies about things a powerful white man deems small or unimportant, told to avoid hurting that same powerful white man’s ambitions.”
Though she insisted that she was not accusing Brett Kavanaugh of murder, Boston Globe columnist Renee Graham wrote that Kavanaugh’s “white male superiority complex” indicated the pathology that famously led Nathan Leopold and Richard Loeb to kidnap and murder a 14-year-old boy.
The essayist Rebecca Solnit raised the stakes of Kavanaugh’s confirmation fight to nearly existential heights. “This is a battle over whether this will be a country for all of us, a democracy in which everyone matters and all are equal, or a citadel of white male privilege,” she wrote.
After calling Kavanaugh a “closed mind,” without a hint of irony, the novelist Stephen King postulated that “if ‘white male entitlement’ was in the dictionary, it could be illustrated by Brett Kavanaugh’s photograph.”
In the end, only Georgetown University associate professor Christine Fair pushed the bounds of propriety too far by advocating “miserable deaths” and posthumous castration for the “entitled white men” who reserved judgement on Kavanaugh. For these sentiments, she was suspended temporarily from the classroom.
Some Republicans began to take notice of all these attacks on the demographic to which many of them belonged, and they took offense. And when they dared do so, their anger was taken as evidence of how old white men are guilty of false consciousness.
When Donald Trump said that accusations against his Supreme Court nominee had been traumatic, New York Times reporter John Harwood clarified that Kavanaugh’s signs of stress “more accurately” signaled “trauma for white men unaccustomed to trauma.”
Senator Lindsey Graham’s display of genuine and uncharacteristic outrage over Kavanaugh’s treatment was deemed by Vox’s Zack Beauchamp a dog whistle designed to communicate “that white men in power are not going anywhere.”
And when Senator Susan Collins delivered a 43-minute speech in which she observed that the allegations against Kavanaugh couldn’t even pass the “more likely than not standard” she had invented for this occasion, even she suffered the wrath once reserved for her male counterparts. Collins, according to Alexis Grenell’s New York Times op-ed, was a representative of her type: white women who place their “racial privilege ahead of their second-class gender status” by acting to “uphold a system that values only their whiteness.”
“White women,” Grenell continued, “are expected to support the patriarchy by marrying within their racial group, reproducing whiteness and even minimizing violence against their own bodies.” Collins was a “gender traitor,” betraying her sex only to maintain her standing within her race.
If this chauvinism had been applied to women and minorities, more would see it for what it is: rank bigotry. But because of the pseudo-academic cachet of negative discrimination based on accidents of birth, the misanthropy that masquerades as social justice gets a pass. It shouldn’t.
When identity forms the basis of ideology, it robs individuals of agency, legitimizes collectivism, and necessitates dehumanization. Those who would have condemned Kavanaugh were not convinced of their own righteousness following a judicious survey of the evidence before them. Rather, they believed in their own rectitude because they believed in the group guilt for which Kavanaugh could and should pay. White, male, and of a privileged socioeconomic upbringing, Kavanaugh was supposed to be the object of the retribution that was due members of his class. That is social justice in practice. It is the antithesis of objective, blind justice. And despite the fact that Brett Kavanaugh now sits on the Supreme Court, it is becoming more popular—and more dangerous—by the day.