Even for our contentious times, Brett Kavanaugh’s nomination to the U.S. Supreme Court, come with unusually fierce opposition. At best, he might win appointment by just shy of Clarence Thomas’s record of 48 no votes. It’s conceivable Kavanaugh will require Vice President Mike Pence to break a 50-50 tie.
In addition to ideological differences, Kavanaugh faces his own past: allegations that, as a younger man, he exhibited troubling actions and attitudes toward women.
His situation—and response—are reminiscent of the justice who set the pre-Thomas record for opposition votes.
In the case of William Rehnquist, nominated to be associate justice by pre-Watergate Richard Nixon in 1971, and for Chief Justice by Ronald Reagan 15 years later, the concerns from his past were outdated views on race, rather than gender.
For both, the abundance of evidence suggests that, earlier in their lives, the men held attitudes that, while fairly commonplace at the time, looked bad from a later perspective.
Witness accounts and a paper trail showed that Rehnquist, in the 1950s and early 1960s, was a supporter of racial segregation policies; an opponent of public accommodation laws; and an active participant in a scheme to repress minority votes.
Racial attitudes had moved a long way in the meantime—just as society has become less tolerant of the “boys will be boys” behavior still common when Kavanaugh was in school 30 years ago.
Rehnquist, and Kavanaugh, could have dealt directly with their younger selves, and addressed those past attitudes and actions honestly—admitting some, denying or explaining others, and reflecting on how they, and the country, changed and grew since.
Instead, both chose to aggressively deny that the younger versions of themselves even existed.
Kavanaugh, in a FOX News interview (which he later agreed to have adopted into the Senate record) and testimony before a Senate committee, adamantly gainsaid not just the assault described by Christine Blasey Ford, but all other past aggressions or misbehavior toward women, including those printed in black-and-white in his high school yearbook. He even invented new definitions for clearly misogynistic terms in his yearbook profile, even positing one as a compliment.
Rehnquist—under oath in 1971 and again in 1986, when Kavanaugh was a senior at Yale—insisted that multiple witnesses to his polling-place actions were wrong. He also claimed that he never knew of a clause he agreed to barring his house from being sold to blacks, and that his written arguments in favor of the pro-segregation Plessy v Ferguson decision were exercises that did not reflect his own beliefs.
The tactic was successful for Rehnquist. He won confirmation in 1971, though the 26 votes against him were tied at the time for the most dissents for a Supreme Court nominee—until 33 Senators voted against his confirmation as Chief Justice 15 years later. That record was shattered by Thomas just five years later, after he similarly denied everything about the sexual harassment charges brought by Anita Hill.
Kavanaugh might similarly succeed, despite similar questions about the veracity of his answers. The Senate has delayed a vote for a week while the FBI conducts an additional background check.
But the obfuscations have deprived members of the Senate—and the nation watching—of an opportunity to grapple with a legitimate question: how should we account for past behavior in a society with rapidly-changing norms and expectations?
A history of pasts forgiven
Kavanaugh, Rehnquist, and Thomas are hardly the only ones to try fibbing their way through the confirmation process., They aren’t even unique among Supreme Court nominees.
In 1930 John J. Parker became the first Supreme Court nominee rejected—by a single Senate vote—largely due to accusations of past racist comments that he refused to confirm or deny. Hugo Black avoided verifying his alleged past Ku Klux Klan membership during his 1937 confirmation, finally admitting and addressing it later when more evidence surfaced.
In a way, these are signs of progress: the nominees, and the Senators who wished to confirm them, were tacitly acknowledging that the attitudes of the past were wrong.
But instead of openly debating the appropriate consequences for past racist and sexist behavior, they demonstrated instead that confessing to such behavior is the unforgivable sin.
That certainly included the respective Presidents who stuck by their nominees. Richard Nixon’s ugly racism has been revealed in his own White House audio recordings, and Donald Trump’s misogyny is well-documented.
Together, they all helped ease the transition to power for those among them caught on the wrong side of history.
This is nothing new. America has a long history, from well before it was America, of conveniently absolving those who participate in what later becomes seen as unacceptable behavior: treatment of Native Americans, Tory loyalty, slaveholding, siding with the Confederacy, Nazi sympathizing, and, quite recently, destroying the global economy.
That is, absolving some of those who participated. To wit: the privileged, white, Christian ones, with the right connections; the ones bred for inclusion in such elite echelons as, for example, the Supreme Court of the United States.
Indeed, Supreme Court nominees have typically been confirmed even when their past misdeeds have been undeniable. John Marshall Harland was confirmed in 1877 over objections by Republicans for his earlier support for slavery, and opposition to the Emancipation Proclamation and the 13th Amendment. Lucious Q.C. Lamar, who had resigned from the U.S. House of Representatives to fight with the Confederacy, was confirmed as a Justice in 1888—the first of several former Confederates to join the Court. Tom C. Clark was confirmed in 1949 despite previously leading controversial anti-Communist efforts, including the creation as Attorney General of the List of Subversive Organizations. Earl Warren’s support for, and implementation of, Japanese-American internment during World War II did not hinder his confirmation in 1953. John Marshall Harlan’s pre-WWII advocacy and investment in efforts to bring Nazi eugenics to the U.S. didn’t slow the Senate from confirming him in 1954.
(“Youthful indiscretions” have also been forgiven along the way to a Supreme Court seat: Samuel Chase was expelled from a debating society at age 21 for “extremely irregular and indecent” behavior; John Archibald Campbell barely escaped court-martial at West Point for his role in the so-called “Eggnog Riot.”)
Sexual violence and harassment against women have been so commonplace, it arguably joins collective sins such as racist segregation, or Native American dislocation in posing a conundrum for those elites as they judge one another in the American system of advancement. Distributing an appropriate share of that guilt on any one individual seems simultaneously too cruel and insufficient. Easier to just pretend it never happened, and move along.
Because that, after all, is the real obstacle to any fair accounting of the past: that it requires the privileged ones to halt or even cede back some of their gains. It would mean questioning whether any of them deserve the Supreme Court seat, or the corporate board position, or the vacated Native America land, or the promised 40 acres and a mule, for themselves.
To wrestle with whether their past actions should deprive Kavanaugh or Rehnquist of their appointments would necessitate a concession that part of the reason they were able to rise to that level is the caste system they perpetuated—the system that cowed, bullied, or simply banned entire segments of the population from competing for those positions. The system that, for example, kept black students out of Stanford Law School until a decade after Rehnquist graduated; or the one that was still keeping women out of Yale College when Kavanaugh was born.
If a few lies under oath are required to maintain the fiction of meritocracy for Rehnquist, Kavanaugh, Grassley, and Graham, that seems a small price to pay—though one they were not willing to afford Bill Clinton, 20 years ago. That’s when Graham voted to impeach in the House and Grassley voted to convict in the Senate, on charges of perjury brought by Kavanaugh as part of the special prosecutor’s team in front of Rehnquist presiding over the impeachment hearings.