Kavanaugh’s Charity Case
September 18, 2018
Sep 18, 2018
11 Min read time
We already know how Brett Kavanaugh responds to human suffering.
One of the giants of twentieth-century anthropology, Clifford Geertz, once noted how difficult it is to tell the difference between a boy who is winking and a boy who is involuntarily blinking. Drawing fine distinctions about human behaviors and their motivations is, of course, not only of interest to anthropologists. When Supreme Court nominee Brett Kavanaugh testifies to the Senate Judiciary Committee about Christine Ford’s allegation that he sexually assaulted her thirty-six years ago, we will all obsess over what was done and what Kavanaugh's actions—then and now—mean. And yet, while these allegations are serious and deserve intense media scrutiny, I would argue that we have already seen, just two weeks ago, whether Kavanaugh winks or blinks at human suffering.
Kavanaugh’s response to a Parkland father betrays that he does not understand how abstract legal principles not just change lives, but immiserate and end them.
On September 4, Kavanaugh went from jocular ease to pinched displeasure when Fred Guttenberg, the father of a fourteen-year-old student killed in the Parkland school shooting earlier this year, strode toward him with an outstretched hand. To many viewers, the video clip that went viral seemed to show Kavanaugh’s support for gun rights outweighing his human compassion (Guttenberg has become a gun control activist). The White House, of course, offered a different spin, with Principal Deputy Press Secretary Raj Shah soon tweeting a pixilated clip from a distant wide-angle camera that he said showed security interceding, making it impossible for Kavanaugh to receive Guttenberg’s hand. Shah claimed that Kavanaugh did not intend to dis Guttenberg; he simply got whisked away. Kavanaugh later backed a version of this story, saying that he saw Guttenberg but did not recognize him, and in an instant was whisked away by security. So what really happened? In Geertzian terms, we are confronted with the challenge of establishing the intent of Kavanaugh’s actions: did Kavanaugh snub Guttenberg, winking to signal his support for Second Amendment hardliners, or did he simply blink and turn away from him?
Maybe Kavanaugh’s back-turning was an honest miscommunication. Of course it is possible that Kavanaugh did not hear Guttenberg, but I am persuaded that he did because I can hear Guttenberg’s introduction in the crummy audio. Regardless, here is what is clear: in the first video, one can see Kavanaugh looking relatively relaxed, ready for his break. He is laughing and chumming it up with Senator Chuck Grassley. When Kavanaugh rises, Guttenberg appears out of nowhere. He reaches Kavanaugh from behind, touches him on the arm, and when Kavanaugh turns to see who has tried to catch his attention, Kavanaugh instantly sours: his accoster is not someone who merits so much as a pause, a handshake, or anything more than silent and swift dismissal.
Maybe this is what Kavanaugh is like with people he does not recognize, his long years in the highly deferential setting of courtrooms having taught him to simply blink at infractions against the courtroom decorum that places all permission to speak or approach judges at the discretion of judges alone. Maybe Kavanaugh reflexively turned away even without the aid of security, because that is what he would do in his own courtroom, letting the bailiffs return order to a momentarily disorderly situation. Maybe it was not personal.
But Kavanaugh’s handlers were clearly anxious about how cold he appeared in that viral clip. Two days later, they packed the front row with high school girls from the basketball team that Kavanaugh volunteers with as the kindly “Coach K.” It was as if the dead teenager who represented the opposition to Kavanaugh had been trampled by a squad of Kavanaugh’s fans, outnumbering her by dozens to one.
Senator Lindsey Graham even used part of his time to try to redeem the apparent flash of cruelty, probing Kavanaugh on what he might like to say to all those present at the hearings. Graham began, “I want to give you a chance to say some things to the people that attended these hearings.” Then, as if he had not been briefed on the bajillion tweets about Guttenberg, he fumbled for words like a medium calling a spirit from the ether: “I think there’s a father who of, a, Parkland, student who was killed.” Again Graham paused, trying to conjure who else might be in the chambers: “I think there’s a mother of a child who has got terrible health care problems, and there are many other people here with personal situations. What would you like to say to them, if anything, about your job as a Supreme Court justice?”
Reading about this exchange on Fox News, I assumed this was a fully scripted moment, with Kavanaugh prepped in advance. But in the C-SPAN video, I witnessed, remarkably, Kavanaugh’s naked awkwardness in the face of Graham’s prompt. Kavanaugh’s failed attempt at an answer betrays that he does not really understand how abstract legal principles not just change lives, but immiserate them and end them.
Much of the stock of Kavanaugh’s quite long answer is no doubt drawn from a script he memorized decades ago growing up in the Catholic Church. He starts out by insisting that if you read his decisions, you can see that he really does understand the world. And he says, with a kind of sad defensiveness, that he knows that the law has consequences: “I want to reassure everyone that I base my decisions on the law, but I do so with an awareness of the facts and an awareness of the real world’s consequences. . . . I understand how passionately people feel . . . and I understand how personally people are affected by issues.” But after considerable abstraction along these lines, his answer eventually wends its way to here: “I understand, the, uh, difficulties, that people have in America. I understand, for example, uh, well to start, I understand the situation of homeless people, ’cause I see them on a regular basis when I’m serving meals.”
Kavanaugh is absent much curiosity about the interior lives of the suffering people he encounters or the potential that their suffering has structural origins.
Graham jumps in at this point to encourage Kavanaugh to run with this, to focus on human beings, bringing him down from legal abstraction to the flesh-and-blood particular (never mind that “homeless people” is also a pretty brutal abstraction): “So tell me about that. What interaction do you have with homeless people?”
It is worth remembering that Graham specifically asked Kavanaugh to speak to two aggrieved parents in the chamber. Yet Kavanaugh speaks not at all to them or even about them, but instead to his efforts to do charitable work: “Senator, I regularly serve meals at Catholic Charities at Tenth and G with Father John Ensler who’s the head of Catholic Charities D.C.—and I’ve known since I was nine years old—when I was an altar boy. He was at Little Flower Parish.”
Kavanaugh rushes out all this detail (the name of his priest, how long he has known him, and in what context). But then he does not appear to know what to say next. He undertakes several false starts:
And, what you learn when you’re at, uh yeah I said, I’m uh Matthew 25, try to follow the, the lesson of serving the least fortunate among us. You know when I was ‘hungry you gave me food, thirsty you gave me uh drink, stranger and you welcomed me, naked and you clothed me, sick and you cared for me, and prison and you visited me.’ Six, six groups. That, ah, that’s not exclusive but that’s a good place to start with your charitable works in your private time.
Graham interrupts him again, I think to get him back on something closer to his original prompt (speak to the people who came to the hearing!): “So describe the difference between Brett Kavanaugh the man and Brett Kavanaugh the judge.”
Kavanaugh’s answer reveals the poignant limits of his capacity to bridge his two controlling orthodoxies, his judicial conservativism and his conservative Catholicism:
Well as a, as a man, I’m trying to do what I can in community service as a dad, as a coach, as a volunteer, as a teacher, as a husband. And serving meals to the homeless. The one thing, Senator, you, you know we’re all God’s children, we’re all equal. People have gotten there because, ah, maybe they have a mental illness, maybe they had a terrible family situation, maybe they didn’t have anyone to care for them, maybe they lost a job, and had no family, but every person you serve a meal to, is, just as good as, as me, or better, frankly, because they’ve, ah, what they’ve had to go through on a daily basis just to get a meal, and you talk to them. That’s the other thing. When you’re walking by the street, you see people, and I understand, I’m sure I’ve done this, I’m not, I don’t want to sound better, ah, than someone, in describing this, but you don’t necessarily look and you don’t say, ‘how’s it going?’ But when you serve meals to them, y’ you talk to people who are homeless, and, they are, ah, just as human and just as good a people, as, as all of us, and they’re you know we’re all part of one community, and so, I think about uh that, and you know. I’m gonna, I don’t want sound like I’m, I can always do more and more and do better. I know I fall short. But Father John has been a big influence on that in thinking about others.
Kavanaugh continues for some time from there, but never returns to Graham’s invitation to speak to a grieving man whose hand he had rejected the day before. And in his answer, instead of speaking to that man, Kavanaugh confesses that he faces the same challenge when confronted with people’s misery on the street. But, he hastens to add, at least in the case of the homeless, when he serves them a meal (i.e., when they humble themselves before him in a setting that, like his courtroom, has an established hierarchy and clear rules), he can recognize, with conscious effort, that they are “just as human” and “just as good.”
Kavanaugh’s approach to tending to the least among us is one of privatized, at-will charity and hence woefully inadequate; it draws no connecting lines between Christian virtues and public goods.
This revelation is tense, following on Kavanaugh’s statement only sentences earlier that, as a tenet of his faith, he believes “we’re all equal” and “all God’s children.” Presumably he knows, then, going into the soup kitchen, that he will encounter “humans” who are “good.” And yet, it takes going there to find that homeless people are human and good and equal. It is not a terribly deep insight.
Kavanaugh’s abashed description of how he recoils from homeless people on the street whom he would happily feed in Father John’s shelter casts his turn away from Guttenberg in a different light. Kavanaugh’s answer is absent much curiosity about the interior lives of the suffering people he encounters (“maybe they have a mental illness”), or the potential that their suffering has structural, rather than familial or private, origins. He simply wants to proffer blessings and be assured that they fall on the deserving, on “good people.” I cannot help but suspect that, for Kavanaugh, a critical element of “goodness” is that the recipients of his charity never challenge him to consider the origins of their need, nor that the prosperous judge might play an important role in the system that manufactures their abjection. Would Kavanaugh turn away from a man who, accepting Kavanaugh’s soup, noted that it is harder for the rich to enter the kingdom of God than it is for a camel to squeeze through the eye of a needle? If such an encounter would paralyze Kavanaugh, how could he not flee from a Fred Guttenberg who approaches him, beseechingly, as a grieving father? Kavanaugh did not wink to conservatives; he flinched at the sight of Guttenberg.
I believe Kavanaugh is sincere in his efforts to live a principled life and abide by his judicial principles. But when asked to bridge the two, he demonstrated not only that he does not (perhaps on principle), but that he cannot. Despite his insistence to the contrary, he cannot meaningfully consider how judicial decisions create the very misery that he wants to salve with acts of charity.
For his supporters, this pained and clumsy testimony is a testament to his faith and fitness. Monday night, Sean Hannity asserted that Kavanaugh could never, as a teenager, have sexually assaulted a younger teen girl because “everything else you see about Judge Kavanaugh’s life, in his church, in his community, this is a guy that spends a lot of time feeding the homeless, I mean he actually is the real deal in terms of helping people in his life now and throughout his profession.”
Here is the real deal when it comes to Kavanaugh: if anyone showed up at Tenth and G, the good Judge Kavanaugh would hook them up with some meatloaf. But what if they asked for, say, affordable health care (“I was sick and you took care of me,” Matthew 25:36)? He did not tell us what his scripture advises him to offer them. Because taking care of an ill stranger for thirty minutes is far different from providing them with a system that ensures they can always find care, that they do not have to depend upon the largesse of Kavanaugh’s charity. His approach to tending to the least among us is one of privatized, at-will charity and hence woefully inadequate; it draws no connecting lines between Christian virtues and public goods. A sick population needs more than soup; it needs long-term care and resources to pay for catastrophic medical events. And the victims of sexual violence need judges who do not perpetrate abuse themselves and then hide behind their scripted good deeds as adults, cleansing their consciences and winking at our memories.
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September 18, 2018
11 Min read time