What criteria should we use to confirm a Supreme Court justice?

The Kavanaugh confirmation hearings and collective action in response have filled me with pain and pride. Watching protestors flood the Hart Senate Office Building atrium on Capitol Hill, seeing thousands of sexual assault survivors and allies walk out at coordinated times, and receiving petition after petition to sign to indicate to senators that their constituents are awake, engaged, and furious made me, for the first time since 2016, believe that civic engagement is truly alive and well. Amidst cynical insistence that liberals are content to stay home and Tweet rather than take action, witnessing the surge of acts of solidarity was both astonishing and encouraging as collective action is surely never a relic of the past — a point that Todd Gitlin made in the preface to his 2012 book Occupy Nation: The Roots, The Spirit, and the Promise of Occupy Wall Street.

Yet yesterday, Senator Susan Collins’ statement that she will vote in favor of confirming Kavanaugh to the Supreme Court has to make even the most idealistic wonder: why wasn’t the power of protest enough? Why didn’t it change the outcome? Why didn’t Dr. Christine Blasey Ford’s courageous and compelling testimony, and Kavanaugh’s display of utter unprofessionalism and lack of composure move the question of his confirmation off the table as an even fathomable question? Party affiliation alone can’t explain this: Republicans and Democrats alike have been known to value dignified professionalism — particularly in front of the Senate.

Reading Senator Collins’ statement on her decision to vote in favor of confirming contains at least one important answer to the questions above: the criteria Collins and other supporters of Kavanaugh are using to judge his fitness to be a Supreme Court Justice diverge from the criteria of people engaged in the fight against this confirmation.

For the #MeToo movement, the question of why sexual assault victims must be believed, and why Kavanaugh should not be confirmed rarely needs to be articulated. Among like-minded people, we’re all on the same page — of course, the lessons of Anita Hill, the tremendously sobering list of sexual assault victims who explained #WhyIDidntReport in response to President Trump’s callous skepticism, and Kavanaugh’s own performance at his committee appearance are proof positive that this person is not fit to serve in a lifelong appointment to the Supreme Court. Taken together, there’s no question and the conclusion is a rallying cry: “Kavanaugh has got to go,” shouted protestors as several were arrested this week.

Collins’ criteria, however, had little to do with sexual assault accusations. Her statement lays out her arguments, and like most detailed arguments, the lead and lion’s share of space goes to the points she makes most strongly. Her focus on Kavanaugh’s history as a jurist, and the ways he makes decisions on the bench as well as the accolades he’s received in that capacity are first and foremost, and a muddled, undeveloped discussion of Ford and sexual assault comes at the end of the statement and is quickly sidetracked into mulling over who may have leaked Ford’s letter. In her statement, Collins avoids dealing with the accusations and their implications for whether Kavanaugh can and should serve as a Supreme Court Justice in light of them.

For Collins, it seems, one has little to do with the other: in the absence of a criminal investigation, she notes, there’s only uncertainty and she — along with the evidence presented through an anemic FBI investigation — fails to find her way to conviction. Instead of trying to answer the question, then, Collins pivots to answer a different one: what is Kavanaugh’s record as a judge?

Defending her position, Collins quotes a judge who testified, “By any objective measure, Judge Kavanaugh is clearly qualified to serve on the Supreme Court.”

What is an “objective measure” for judging qualification? For the protestors who have worked tirelessly and their allies, the objective answer is that at a basic level, Kavanaugh’s credibility and trustworthiness have been shattered and require further investigation before consensus can form about whether he has the capacity to serve as a Supreme Court justice. Appealing to objective measures, however, is a longstanding strategy to avoid justifying one’s criteria and appealing instead to the authority of scientific truth. Silvio Waisbord’s recent article “Truth is What Happens to News” explains the folly of this approach well: “Truth is not inherent to an idea; rather, it is a dynamic process by which the truth is proved or disproved. Veracity results from a process of verification and validation” (p. 1872). Admitting this, which practitioners across knowledge-producing fields are often reluctant or completely unwilling to do, opens up risks — as well as possibilities.

Last night I watched a flurry of furious Twitter posts shouting at Senator Collins, arguing that she is a traitor, a disappointment, and unfit to serve as a senator. The question in my mind remained unanswered: how could she not be convinced?

One answer is simple cronyism. But an answer that depersonalizes from Collins alone and considers the broader swaths of people across the country who have been shouting “Confirm Kavanaugh Today” for weeks requires a broader lens.

The core problem is that people are talking past each other. If I want to convince you of something, and you’re unfamiliar with it, and I explain it to you in a language you’ve never heard before (or have heard but never learned) — there’s little possibility for comprehension. The terms of the debate are going to lead to dead-ends, because a debate can only happen if people understand the points being made. “How could they not understand?” people respond incredulously when I make this point. “This is basic, and even children understand the points I’m making.”

What any of us take for granted is difficult to put into words. Our strongest convictions are the ones that we are often the most resistant to articulating and defending — because doing so calls into question the truths that make our reality and make reality make sense to us. Continuing to talk past one another, however, leads to the kinds of impasses and unfathomably ridiculous outcomes that the country and international community have witnessed this week.

What language, then, would be better? First, the basic question that was presumed but never answered: what criteria should determine whether a person is confirmed to the Supreme Court of the United States? Latent criteria and leaving it up to each individual senator’s conscience is clearly a dissatisfying way for a representative democracy to operate. What is at stake, both pragmatically and symbolically, in confirming a person to the Supreme Court? What does the identity and background of a Supreme Court justice say about the country as a whole?

For many people who have been fighting for social justice for decades, these questions are tiresome at best and insulting at worst. “You would have to be living under a rock not to know the answers to these questions,” the weary reply comes.

Yet claiming that our work as social justice advocates is complete is not the same as completing the work. This week, the chasm and distance yet to go became terribly clear: President Trump ridiculing Dr. Christine Blasey Ford at a rally was unfortunately predictable. What left me stricken, and should give us pause, is how many people at the rally burst into peals of laughter and applause. As every public speaker can attest, making a joke doesn’t mean it will always land — the audience might not be with you. In this case, the audience was with him — and remained riveted through his solemn conclusion, “And a man’s life is in tatters, a man’s life is shattered.”

It’s always unfortunate to me when I see value in Trump’s rhetoric, but this is precisely the basis to argue upon. People’s lives are indeed at stake. A sexual assault survivor’s life is shattered, again and again, each time people deny the truth of their experience and insist that gaps in memory of a traumatic incident must mean it never happened. The term “insult to injury” does not begin to capture how outrageous such dismissal is. But even with strides and advances in popular understanding, there are huge swaths of — powerful, organized — people in this country who still do not understand. As an educator, I see this as a sign that there’s more teaching to be done.

Which is another place where people in social justice activism often get annoyed. “We don’t have time and we shouldn’t be expected to educate people who can’t be bothered to read a book or even a few tweets” is the response I hear and read regularly, and I understand the underlying exasperation with the suggestion.

At the same time, it is worth remembering that the person who preceded Dr. Ford was Professor Anita Hill, who has dedicated her life to teaching people around the world about the meaning of justice, and the importance of refusing to be silenced. “A society committed to equal justice under the law must demand a judiciary that embodies that belief,” Hill wrote in 2007. More recently, Hill has spoken out about the Kavanaugh hearing and reaffirmed, “Access to equal justice for all is what was at stake in 1991, and it’s what’s at stake now.”

Hill has surely fought the long fight, and continues to do so. She taught me, through her writing and testimony, what justice in a diverse society means. As many of us grow weary and disillusioned, it is worth remembering that change is what happens — often more slowly than we’d like — when people show up. Hill asked her audience last week, “Will you engage your own institutions in change? Will you engage politically? I can tell you that I will continue to use my voice.”

What, though, does it mean to engage and use our voices? Shouting at boulders that seem immovable in elevators and through ethereal Twitter hashtags surely can’t be where political discourse begins and ends.

The first step is to figure out how we can better convince each other of our convictions. What language can we speak to help people understand? And to understand their reticence and traps of denial? The second step is to radically reconsider how Supreme Court justices are confirmed. With no well-functioning mechanism for direct public input or requirement that senators consider marginalized voices in their decisions, the current system requires that citizens place a tremendous amount of trust in elected officials. These officials have let thousands of us down this week.

Instead of the current and longstanding confirmation procedures, how could Supreme Court justices be confirmed? One way would be to require deliberative consensus, rather than acquiescing to a “majority vote” of senators.

As political theorist Jürgen Habermas (1987) has asked,

“In which direction would the structures of the life-world have to vary if the undistorted reproduction of a concrete life form were to be less and less guaranteed by traditional, customary, time-tested, and consensual stocks of knowledge and had to be secured instead by a risky search for consensus, that is, by the cooperative achievements of those engaged in communication action themselves?" (p. 344).

For those protective of the current social and political order, the idea that people should deliberate and decide directly seems outlandish and ridiculous: opening up the question of who should serve as a Supreme Court justice to the public could lead to the dismantling of the whole system, where new and different criteria might supersede and completely smash the old order. For that matter, they add, what we’ve taken as given could be irreparably challenged and changed to serve vastly different ideals.

Exactly.