The Kavanaugh Debacle Requires More Reason, Less Empathy

The Kavanaugh Debacle Requires More Reason, Less Empathy

The Kavanaugh fight cannot and should not be solved by putting ourselves in others' shoes. Reason, not empathy, is what is needed.
Thomas Wheatley
By

Few events in modern American government can set the internet ablaze like a fight over a Supreme Court vacancy. This rule has certainly held true for Judge Brett Kavanaugh. Many expected Kavanaugh’s nomination to be controversial, but all hoped for more than the “highly partisan show” the televised hearings depicted.

Then came an unsubstantiated sexual assault allegation at the eleventh hour, which left the witch’s partisan brew bubbling and hissing with volatility. Add a touch of midterm speculation, a dash of outright lies, and a visit from Spartacus himself, and the cauldron froths over the rim and down the sides.

One solution to this unstable concoction, we are told, is to find our common humanity and better empathize with the “other side” (i.e., either with Kavanaugh or his accuser, depending on one’s politics). That’s a terrible idea. To be sure, empathy has its uses, but it is incapable of solving the controversy surrounding President Trump’s second Supreme Court nominee.

Most noticeably, excessive empathy clouds judgment. Although empathy is offered as a mechanism to increase awareness of others’ concerns, overindulging in empathy does the opposite–namely by inducing a fixation on one perspective at the exclusion of others.

Empathy’s acolytes tell us that when a person has been harmed or experienced an injustice, the moral imperative–at all costs–is to rectify that injustice and ameliorate the harm. One must not be distracted by any fallout from secondary and tertiary concerns, because the immediate harm, by virtue of its vividness, deserves our our unfettered emotional investment. Never mind, as Paul Bloom discusses in this excellent piece for The Guardian, empathy is “vulnerable to bias.” Writes Bloom: “Neuroscience provides many examples of how empathy picks favourites. Brain areas that correspond to the experience of empathy are sensitive to whether someone is a friend or a foe, part of one’s group or part of an opposing group.”

This is certainly true in Brett Kavanaugh’s case.

On the left, an orgy of empathy has swallowed any possibility that Kavanaugh just might be innocent of the allegations leveled against him. Instead, say his detractors, we must allow our attention and thinking to be absorbed entirely by the difficulties encumbering the alleged victim, Christine Blasey Ford. Merely suggesting Blasey (her preferred surname) should substantiate her allegations or face cross examination (as with any other criminal charge) is insisting she carry the intolerably cruel burden of explaining herself and permitting her alleged attacker to speak in his own defense. Concepts like “due process” and “right to confrontation” are but relics of high school civics; why can’t Blasey’s bare accusation be enough to convict Kavanaugh, if not in a court of law, then at least in the court of public opinion?

Shouldn’t her story by itself stir such moral indignation so as to compel our nation’s top federal law enforcement agency to forsake precedent, throw caution to the wind, and launch a full-blown investigation into a matter which, even if proven true, is well beyond its jurisdictional reach? Sure, we have a criminal justice system that routinely sneers at defendants’ rights (especially black defendants), but this has nothing to do with that. This is about justice, obviously.

Nor does the existence of the second accuser, Deborah Ramirez, lessen the transcending need for reason to prevail. The second accusation does not directly make the first accusation more likely to be true. For that to happen, an argument of propensity—that is, that Kavanaugh is a habitual sex predator—must be made. Such an argument is so reason-deficient that trial courts almost never permit it, namely because propensity arguments indulge generously in bootstrapping (i.e., the first accuser is credible because the second accuser exists, and the second accuser is credible because the first accuser exists). Indeed, were propensity arguments tolerated for such purposes in our criminal justice system, a person could be convicted of wrongdoing without any independent substantiating evidence—just ask the Scottsboro Boys.

In any case, if the argument is nonetheless one of propensity, then it’s directly relevant—more so than before—that scores of women, all of whom know Kavanaugh well, cannot recall a single incident in which Kavanaugh engaged in untoward behavior. Hardly the mark of a depraved monster; if Kavanaugh’s detractors wish to cast him in the mold of Harvey Weinstein and Bill Cosby, they’ve got a long ways to go.

Of course, one might argue each of these women supporting Kavanaugh has an ideological interest in staying silent (although it’s uncertain if even that much is true). But if we’re to be so unrestrained in declaring partisan bias, isn’t it at least possible that Kavanaugh’s accusers—each of whom are steeped in left-wing politics—either have manufactured, exaggerated, or are otherwise mistaken about their claim of sexual assault?

It’s worth remembering that an unsubstantiated claim of sexual assault is not necessarily made intentionally or knowingly. Nor does it mean a sexual assault didn’t occur. As David French wrote about in National Review, a decade-long study by researchers from the University of Massachusetts and Northeastern University found that while only 5.9 percent of reported sexual assaults were falsely reported, a whopping 44.9 percent did not proceed to any prosecution or disciplinary action. The latter category encompassed alleged assaults in which:

[T]he report of a sexual assault did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault).

In other words, the study revealed that more than half of all sexual assault allegations were either outright false or so lacking in evidence that no responsible prosecution could follow.

In fairness, the right has also fallen for empathy’s seductive siren song. Writing for CNN (and demonstrating empathy’s proclivity for bias) Noah Berlatsky said, “Many conservatives who support Kavanaugh have come forward to argue that men are supposed to see themselves in Kavanaugh, and that men are supposed to share the same interests as Kavanaugh.”

This call for male solidarity, according to philosopher Kate Manne in her book “Down Girl: The Logic of Misogyny,” is called “himpathy,” and it is apparently the opposite of misogyny. “Misogyny means that people react negatively or dismissively towards women,” writes Berlatsky, referring to Manne’s book. “[H]impathy means that they react positively or empathetically towards men. Men sympathize with alleged abusers because himpathy puts them in the shoes of the victimizers, rather than the victims.”

Cute naming conventions aside, there’s some truth to this. The reason many men tend to gravitate toward “himpathy,” especially in cases of sexual assault, is a topic for another essay, but the lengths to which some men will go in service to their empathetic bias can be absurd. George W. Bush’s press secretary Ari Fleischer, in an interview with Fox News, even suggested that teenage sexual assault of the supposed Kavanaugh variety should not be career-destroying. “Should that deny us chances later in life? Even for Supreme Court job, a presidency of the United States, or you name it?” he asked.

Um, yes. Unequivocally yes. If the accusations against Kavanaugh are true as Blasey describes them, then Kavanaugh didn’t just “act out” as a teenager. He committed a violent crime–indeed, one of the most terrifying intrusions on personal autonomy known to our legal system. No, not every male has an experience like the one Blasey describes in her accusation. Normal “boys will be boys” behavior is driving too fast and forgetting to put the toilet seat down, not forcibly restraining and undressing a woman while covering her screaming mouth.

The Kavanaugh fight cannot and should not be solved by putting ourselves in others’ shoes. Reason, not empathy, is what is needed. And reason says this: There is not enough evidence in the public domain at this time to clearly settle this issue. More information is needed. At the very least, that means Kavanaugh, Blasey, and any other material witnesses must testify openly, under oath, and subject to cross examination. Evidence must be introduced and scrutinized. Granted, not all will be satisfied with the outcome, but if done correctly, the process will have been as fair as we can make it.

Thomas Wheatley is an attorney and writer living in Arlington, Va. He is a regular contributor to the Washington Post’s “All Opinions Are Local” blog and was a 2016 Publius Fellow at the Claremont Institute. Follow him on Twitter @TNWheatley and email him at [email protected]

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