Berkeley Blog, Opinion

Judge Kavanaugh tries to cut the Gordian Knot

Alexander the Great cutting Gordion KnotIn the process of conquering the world, Alexander the Great came to the town of Gordium. In that town was a piece of rope entangled in an intricate knot. Whoever unraveled the knot, according to legend, would rule the world.

Many had tried, and all had failed. Nor had anyone ever ruled the world. Alexander contemplated the knot and his options. He fiddled with the knot but got nowhere. Then he drew his sword, sliced the knot apart, and went on to rule the world.

This legend is usually told as a justification of a bravura style of leadership. Wannabe leaders try conventional solutions to problems and fail. The natural leader scorns those, thinks outside the envelope, and rightly rules.

In his second hearing, on September 27, Brett Kavanaugh demonstrated Alexandrian leadership style, with considerable success. But just as Alexander’s impetuousness (and drinking habits) led to his early death, it may yet transpire that the bravura style may not work in Judge Kavanaugh’s long-term interests.

You might, as many have noted, see a hearing of this kind as a job interview. You could also see it as an audition, in which a candidate demonstrates his possession of the skills he would need to successfully perform the job for which he is applying. Then the employer has to ask: Does this candidate’s behavior demonstrate what I am looking for?

An associate justice of the Supreme Court needs a skill different from that of a world conqueror, the ability to handle something vastly more complex than swords: words. The position for which Kavanaugh was auditioning requires, first of all, the ability to know what kind of talk is required in that position and to use it appropriately.

What Kavanaugh demonstrated at the hearing was precisely the opposite.

The Supreme Court is a collaborative body. Success as a justice – getting your opinions to be part of our laws —  requires the ability to “get to five” – to persuade four of your colleagues to agree with you. Certainly intellectual acumen, the ability to understand the facts, grasp the relevant history and marshal cogent arguments is vital.

But probably a more important talent is the ability to behave collaboratively, to show respect for one’s colleagues and a willingness to subordinate one’s ego to the ethos of the group. To do so, it is necessary to employ the expected discourse style of the profession in a way that is most likely to make the organization run smoothly. Blustering, bullying, mockery and repeated untruthfulness are likely to achieve just the opposite.

The late Antonin Scalia may exemplify the dangers of getting it wrong. No one doubts his raw intelligence. But he was given to tantrums when crossed: scathing sarcasm, refusal to compromise and fits of pouting. As a result, he was most often unsuccessful in persuading his colleagues, and his personal opinions enjoyed little success. In contrast, Sandra Day O’Connor, perhaps less of an intellectual star, was able to act and speak collaboratively, and many considered her the most influential member of the court.

A hyper-macho audition

The genders of my examples are not irrelevant. In the Kavanaugh hearing, Christine Blasey Ford used something close to a typical and traditional feminine discursive style, while the nominee used a form of interaction best characterized as not so much masculine or manly, but hyper-macho – a gross exaggeration of what we think of as masculine. Blasey Ford drew her hearers – even her opponents – to her, while Kavanaugh scared them off. They responded as one responds to a schoolyard bully: by acknowledging their authority, but unhappily.

This is the style of his supporter, the president, who seems to win at times, but the victory is always clouded by the feeling that it is illegitimate. If confirmed, lack of influence will be Kavanaugh’s legacy, and during his tenure his behavior will interfere with the court’s smooth functioning and diminish its prestige. In fact, maybe Kavanaugh has given liberals a reason to take heart: if he is confirmed, his discursive style may drive some of the court’s more conservative members into taking more centrist positions just to maintain their self-respect.

What made Kavanaugh’s audition style a warning of the destructive role he might play on the court if confirmed was basically his hyper-machismo: the implicit white male entitlement he displayed through his petulant refusal to answer questions responsively, based on an implicit belief in his right to the position and his right not to have to answer for his treatment of inferiors (like women); his swings from braggadocio (the highest grades; the superlative athletic achievements; etc.) to self-pity, including even traditionally unmanly tears; his shouting and truculence; his inability to provide a coherent narrative, substituting threats, contempt for his questioners, and repetitions (and repetitions….) of his tale of his own wonderfulness; his overwrought facial expressions and expansive gestures (he’s larger than life); and his refusal or inability to abide by the discursive rules that have always governed hearings like these, in particular, any recognition of the options open to the various participants in this kind of talk.

From early childhood, humans learn to recognize and participate meaningfully in a range of discursive options with different rules, roles, and properties. From interactions with peers, we learn to navigate ordinary conversation: it is egalitarian and reciprocal: all participants have access to the same kinds of language (questions, demands, statements) and can expect to be understood in similar ways.

In our families it’s somewhat different: adults and older siblings have rights little ones do not: adults can demand the floor, they can ask questions that children can’t, they can be bossy. In school, children learn still more about non-reciprocity: the teacher can speak in one set of ways, the students in another. Children also learn, very early, that talk is gendered: girls and boys speak differently and are understood differently. So by young adulthood, we move competently among different discourse worlds, and by achieving these different forms of competence, we become flexible participants, able to learn and use the strategies of whatever occupation we find ourselves in. Ideally, that is, we do, but some of us do it better than others.

Those of us who have had to learn from early on that we are not equal – little girls, for instance – must become more flexible and adaptive, more willing to listen to others, and more adept at more kinds of talk. Those who are raised to be hyper-men, on the other hand, learn to close off their options: they’re the boss, they don’t have to adapt. Until very recently, this strategy (if such it can be called) has worked for them.
Brett Kavanaugh and Christine Blasey Ford
But once women get to participate more or less fully in public discourse, as at the hearing, there turns out to be another way to talk, another way to listen, and the familiar bullying tactics, if employed, fall flat. This is likely to be the case on the court.

She deferred; he swaggered

Kavanaugh proved unable to adapt his style of discourse to his situation: confronted with a strikingly successful presentation by his opponent, he resorted to adopting a style that was diametrically opposed to hers. She deferred; he swaggered. She spoke softly; he bellowed. She produced a coherent and relevant narrative; he managed only repetition and self-pity combined with self-promotion.

Along with his Republican supporters (Lindsey Graham and Orrin Hatch especially memorably), he pulled out all the hyper-macho stops: affecting a ludicrously combative style in order to demonstrate that only one gender was worthy of being taken seriously. By the time the day was over, both Kavanaugh and the Republican members of the Judiciary Committee had managed to offend, insult, and injure just about every relevant woman: female Democratic members of the Committee; Rachel Mitchell; and of course, Blasey Ford herself. They had turned into latency-age boys who, to preserve their inchoate male identity, have to think of girls as having cooties.

There were the Republicans’ repeated references to the accuser as “Mrs. Ford” – not allowing her to choose her own name, and ignoring her title and status (he was always “Judge Kavanaugh”); their casting aside of their “female assistant,” Rachel Mitchell, when she no longer served their purposes; the continual ranting against Dianne Feinstein for her perfectly reasonable decision to protect Blasey Ford’s privacy; and Kavanaugh’s reprehensible treatment of both Amy Klobuchar and Sheldon Whitehouse.

By turning  Klobuchar and Whitehouse into the job-seekers (the subordinate position), Kavanaugh managed to turn the discourse rules of hearings (or job interviews) on their head, the better to demonstrate that the macho man makes his own rules and forces his interlocutors to adhere to them, thereby cutting the Gordian knot.

Normal hearings discursively resemble courtroom cross-examinations (with which Kavanaugh must be familiar), in one important respect. Unlike informal conversation, hearing discourse is not reciprocal: one party asks questions, the other answers. That distinction arises out of the purpose of hearings, and underscores the power relationship between interrogator and responder: the former is, and must be, more powerful than the latter; the latter needs the good will of the former more than the reverse.

By turning the tables on two of his questioners, Kavanaugh demonstrated both contempt for established precedent and disdain for the people he mistreated: they became weaklings and incompetents, left uncertain what to do in a circumstance that had never happened to them before. That must have been especially pleasing to Trump and his supporters.

A bad boy of advanced age

Such violative behavior makes it probable that Kavanaugh will never follow normal expectations. That choice works circularly: his sense of privilege means he is above the rules, and his refusal to play by those rules signifies to others that he is indeed privileged. In his youth (as his calendar entries show) he gloried in his role of “bad boy.” Perhaps boys will be boys, but once they have grown up to be eligible for high-level positions, they cannot be boys any longer. But by his behavior at his hearing, Brett Kavanaugh showed that his favorite self-image was still, even at his advanced age, that of a “bad boy.”

So the argument that the event that Blasey Ford eloquently retold happened 36 years ago and so is no longer consequential, was proven false by Kavanaugh’s responses to Whitehouse and Klobuchar. In his mind, he is immune to the rules of normal behavior. The fact that he still makes this assumption tends to prove the truth of Blasey Ford’s claims. The fact that he still makes this assumption and acts accordingly means that, once appointed to the court, he will be as dangerous in that important role as his biggest fan is in his important role, for similar reasons. Social animals function best when there are expectations that they know will guide everyone’s behavior.

The testimony keeps being described as “he said/she said.” But it isn’t. It’s closer to “She said/he expostulated, bellowed, ranted, sniveled, grimaced, and whined.”  Hers was normal. His was something else. Surely he knew this; why did he persist?

I suspect that his hyper-machismo and hyper-emotionality were a means of calling all of us off the scent. Rather than listening to his (nonexistent) narrative, we were continually tempted to fall into the bathetic universe he was constructing. Moreover, he may have seen his task as looking as if he were telling the truth. Since he had no way of being truthful and getting the job, he had to construct a persona that listeners saw as truthful. But alas! Many of us were not fooled. On the other hand, quite a few of us wanted to be, and fell into the web.

Just as Kavanaugh’s audition offered observers a foretaste of his likely performance in the job he sought, so it fits neatly into an understanding of how his past, his present, and his future are of a piece. What he was in 1982 is what he is in 2018 and will be, if confirmed, in 2054. It’s all about dominance over women. In 1982 sexual assault was his weapon of choice, all he had available to him; today, he has words to use to harass Amy Klobuchar and the other women he embarrassed. Tomorrow, he will twist the law to empower men like him at women’s expense. The equation is simple:

Rape = Sexual and gender harassment = Denial of women’s control of their minds and bodies.

The =’s are not intended to mean that each of these is equally horrific for victims, but that all share what John Searle called the illocutionary point: what a speaker intends to convey by her speech act. All three are about the domination of women by privileged men: I can do what I want to you, because I am he and you are she.

The rules of discourse function as a kind of Gordian knot, complex but essential, enabling humans to function as social creatures. It is possible to make yourself a ruler by cutting that knot apart. But you cannot function as a competent leader in the role Brett Kavanaugh is seeking to play if that’s your modus operandi. You cannot be an associate justice of the Supreme Court and behave lawlessly. Or, if it turns out that you can, we are surely living in perilous times.