Kavanaugh’s Trial by Ordeal: Burning Truth in Effigy

The smearing of US Supreme Court nominee Brett Kavanaugh was hardball politics at its most disingenuous. The stakes were unambiguous. The Democrats and their supporters wanted to delay and derail his nomination. The tactic was to wait till the end of the regular nomination hearing and then leak an accusation that the judge was guilty of sexual misconduct. Base politics for sure, but Democrats had tried twice before to derail a Supreme Court nomination with confected allegations. So the ploy was not surprising. Republicans kept their nerve. They patiently navigated three weeks of brutal character assassination of a major public figure with a spotless track record.[1] In the course of those days the Democrats attempted to turn the supplementary Senate Judiciary Committee hearing into a show trial. As that unfolded, the very nature of “Brett Kavanaugh” changed. He was transformed from a nominee for America’s highest court into a symbol of America’s political division. 

A part of Kavanaugh’s trial by ordeal was simple political payback. Kavanaugh had worked under Ken Starr at the Office of Independent Counsel investigating legal matters related to Bill Clinton’s sexual conduct. Kavanaugh’s appointment as a Circuit Judge to the US Court of Appeals for the District of Columbia was blocked by Democrats for three years during the George W. Bush presidency.[2] The Kavanaugh imbroglio, though, turned out to be much more than just opportunistic payback. The two weeks of attempted trashing of Kavanaugh’s life and reputation tapped a much deeper vein in American life. A tsunami of protest, pressure, intimidation, bluster, stunts, grandstanding, demagoguery, defamation and table-thumping erupted across much of left-leaning America, leaving moderates and conservatives shocked.

This essay appears in December’s Quadrant.
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At a certain point the Kavanaugh hearing stopped being about him. Instead it become a reckoning of the broader America society with itself, in particular a reckoning about the nature of truth. The Democrats put truth on trial. The result was disturbing. The Kavanaugh ordeal revealed that long-observed and once keenly-held notions of evidentiary truth have been rejected by a substantial minority of Americans, many of them in the vocal professional-managerial elite.[3] Evidentiary truth means that an allegation or claim that we make about serious matters needs to be backed up with compelling facts and independent observations before it can be accepted.

Some of the hysteria surrounding Kavanaugh was cynical politics. If the nomination hearing could be delayed past the 2018 mid-term elections, maybe the Democrats could gain a majority in the Senate—and then vote down Kavanaugh. Or perhaps they could peel off some Republican support for the judge, forcing his withdrawal from the process, also pushing the hearing past the Congressional mid-term elections. In any event the tactics failed. Much of the credit for this was due to Senate Republican majority leader Mitch McConnell. For three years he had doggedly shepherded through a procession of conservative appointments to US federal courts. To a degree the effect of this has been to shift the balance of the courts away from their decades-long domination by liberal jurists, many of whom have displayed a strong social-engineering streak. Through an uncertain and turbulent 2016, the uncharismatic but unflappable McConnell kept his nerve. Against the odds he began to coax a historic jurisprudential shift. Few politicians ever achieve that kind of legacy.

The appointment of Kavanaugh to the Supreme Court was the climax of McConnell’s judicial re-gearing. This was not because Kavanaugh was a razor-sharp conservative. He is not the kind of high-definition conservative that Robert Bork and Clarence Thomas were when they were nominated. Like Kavanaugh, Bork and Thomas were subject to aggressively-organised partisan campaigns that included false, baseless or tendentious allegations. Kavanaugh is not a Reagan conservative (or at least he wasn’t before his traducing by the Democrats). Rather he is a Bush conservative. His judicial record suggests he is a little to the right of the Supreme Court’s Chief Justice John Roberts but to the left of Justice Samuel Alito. In other words Kavanaugh is not an earth-shaking nominee. And yet the earth shook. Why?

The simple explanation is fear on the part of liberal Democrats that Kavanaugh represents a shift of the Court to a more consistent five-to-four conservative majority replacing the four-to-four matrix plus the swing vote of the retiring Supreme Court judge Anthony Kennedy. Kennedy was a Reagan-era appointment. He was a mild libertarian whose judgments at different times concurred with the Left and the Right. His swing character is evident from his judicial opinions.[4] At various times, he opined that there was no legal limit on detaining illegal immigrants and no automatic deportation for aliens convicted of crimes. Imprisoned terrorists had habeas rights. Obamacare was not allowable under the Commerce Clause of the constitution but was valid as a tax. Obamacare’s individual mandate was unconstitutional. States cannot ban cigarette ads near schools. Corporate political spending is free speech. Flag burning can’t be outlawed. There is a presumption in favour of state rights. Admissions preferences are unconstitutional racial balancing. School vouchers are generally constitutional. The Clean Water Act is restricted to navigable waters. States can request that the Environmental Protection Agency regulate greenhouse gases. The court’s Roe ruling definitively resolved the contentious abortion law issue. States are permitted to outlaw late termination of pregnancy. There is a constitutional right to gay marriage. Sociological analysis is insufficient to demonstrate gender bias. And so on. Something for the Left and something for the Right.

Liberals fear the loss of Kennedy’s swing vote, which favoured a number of their pet moral causes. Kavanaugh’s record does suggest a legal outlook less defined by libertarian moral issues.[5] He appears sympathetic to national security surveillance, open to social security privatisation, inclined to a modestly more strict interpretation of immigration rights, disinclined to gun control and supportive of taxpayer subsidies for religious schools. In other words, Kavanaugh is a pretty conventional Bush-era conservative. That means he is an anathema to liberals.

The fears of liberals focus particularly on the fate of Roe v Wade. The Supreme Court’s 1973 ruling had the effect of nationalising abortion law in the United States. To a distant observer, the hysteria of American liberals about Roe is odd. Even if a hypothetical conservative majority on the Court decided that Roe was no longer settled law, all that would mean is that abortion law would go back to being a state government responsibility. Some states would opt for tougher limits on abortion; others would liberalise the rules. Overall little net change would occur. However, remember that the battle over the composition of the Supreme Court is as much about symbolism as it is about the nature of the law. 

“Kavanaugh” is now and forever no longer a flesh and blood judge. He has turned into a symbol. To American liberals he signifies their deepest suspicions and anxieties. Among conservatives and moderates “Kavanaugh” stands for “abuse of due process by liberals”. In a more general sense he symbolises the face-off between social hysteria and calm. Deeper still, the battle over his nomination has touched a raw nerve in American society. In doing so it raised profound questions about the nature of truth. It did this in a way that called upon everyday Americans to ask themselves: How would I behave in this situation? What if I was the accused or the accuser? What would I regard as sufficient to establish the truth of the matter? Americans watching the blanket coverage of the Senate hearings and related goings-on could not but ask themselves some weighty questions about the nature of truth. A society rarely asks itself “What is truth?” When it does, the question points to an underlying schism in society.


Jacobin accusation

In the Kavanaugh hearings, four theories of truth were presented: truth based on evidence, truth as accusation, truth as emotional power, and truth as a narrative of suffering. Each theory had its protagonists. These are not classroom theories. They are theories that are operative in human behaviour.

Throughout the Kavanaugh controversy most Republicans repeatedly and calmly insisted that an allegation of misconduct had to be corroborated and supported by evidence. A person, including a person of high public standing, is innocent until proven guilty, even in the mischievous court of public opinion. Innocence is assumed and any guilt has to be demonstrated. This is based on an evidentiary theory of truth. It requires the marshalling of evidence and a rational demonstration that the available evidence supports or doesn’t support a conclusion of guilt. What is striking about the Kavanaugh nomination is how his political opponents rejected the notion that facts are crucial in determining the truth of a claim. They relied instead on not one but three other entirely different theories of truth.

The first of these alternative theories is the idea that truth is a matter of accusation. That theory was pushed by Democratic activists and operatives. According to this idea an accusation of a certain type does not need to be proved but is inherently true. This may sound strange to anyone brought up in the tradition of Anglo-American law. But the equation of accusation and truth has many modern expressions. These range from moral panics to despotic politics. Of the latter, some of the better-known examples are the Jacobins in the French Revolution and the Stalinists in the Soviet Union. In circumstances where political fright or moral scare dominates the social atmosphere, merely making an accusation is sufficient to establish a person’s guilt.

In Kavanaugh’s case the accusation was made by a Californian academic, Christine Blasey Ford. She alleged that when Kavanaugh was a seventeen-year-old he had attempted to rape her. Armed with the accusation, Democrats tried to hijack the Senate process to confirm Kavanaugh’s nomination. Their clear intent was to turn the process into a show trial. However, they weren’t entirely successful. They did insist on the classic show-trial presumption that the accused is guilty. Kavanaugh was not only guilty till proven innocent, but nothing could prove his innocence. However, Republicans pushed back. They quietly but firmly insisted that the accusation made by Blasey Ford had to be supported by evidence.

When we ask for evidence we imply that an allegation needs substantiation, corroboration and confirmation. That is, it must be supported. If not, then it’s not true. Initially Democrats promised corroboration and confirmation. But the evidence provided didn’t stand up to scrutiny. Three persons were supposed to have either witnessed the alleged event or been at the party where the attempted rape was supposed to have occurred.[6] All denied having been at the party or having witnessed anything of the kind. One of the witnesses who rejected the claim was a long-time female friend of the accuser.

Other evidence offered was of a pseudo-scientific kind. To prove her bona fides, Blasey Ford took a polygraph test. Polygraphs are junk science. They don’t do what they claim—namely, demonstrate that a person is being truthful. The physiological reactions they measure can be equally produced by a person telling the truth, telling a lie or believing honestly in a falsehood. In any event “telling the truth” (as one believes it to be) is not the same as establishing “the truth of what happened”.

Much of what the Democrats presented had nothing to do with objective truth. It was not a substantiation that “this is what happened”. Rather it was a claim of subjective truth. The contention was that the accuser was an authentic person. She was telling the truth as she saw it. A number of Republican commentators also took this view, arguing that Blasey Ford presented as a “credible” person. They thought she appeared to be sincere, convincing, plausible and believable.

After the Blasey Ford allegation was made public, the Democrats and their many vocal supporters took a series of steps. These were designed to direct public opinion away from the theory that truth is something that is tested by offering evidence and evaluating that evidence. The first step was to introduce the idea that the truth of a certain privileged kind of allegation does not require evidence. Rather, an accusation of this type is sufficient and valid in itself. To underscore the point, in the two weeks of high national melodrama, the Blasey Ford allegation was followed by a series of other, ever more preposterous accusations.[7] The second step was to insist that the accuser’s “credibility” was key to the outcome of the hearing. This idea was retailed by Democrats and some Republicans alike.


Romantic authenticity

Like the show-trial theory of truth that equates truth with accusation, the equating of truth with authenticity has deep historical roots. These lie in Romanticism, the literary and political movement that emerged in Europe in the late eighteenth century.[8] Romanticism coined the idea of an “authentic” person. The Romantic theory of truth says that an accusation can be sufficient and valid in itself if the accuser is authentic or “believable”. If you are a certain kind of accuser then your accusation should be “believed”. The accuser who needs to be “believed” is one who is “credible”, “sincere” and “authentic”. The measure of sincerity is strong emotion. The accuser who states their accusation with emotional intensity is one who has a strong claim to be believed. 

The Jacobins in the French Revolution fashioned the idea that nothing more than an accusation was needed to have someone imprisoned or sent to the guillotine. The Romantic model of truth held that emotional intensity is sufficient to establish that a person is “telling the truth”. If an accuser emotes with conviction, a truth claim thereby acquires credibility. Truth in effect rests on the emphatic emotion of the accuser. When faced with an accuser who is “credible” or “believable”, the seeming principal way out for the accused under these circumstances is to show that the accuser is a liar. But in the Kavanaugh case this placed Republicans between the horns of a dilemma. For how does someone show that a “believable” person is lying when there is almost no evidence for or against the accusation, and many people are arguing that the accusation is valid in itself or made valid by virtue of the authenticity of the accuser?

One of the things this points to is that truthfulness (that is, not lying) is an over-rated indicator of truth. Though an admirable human trait, truthfulness is not the same as truth. Truth is a deeper, more strenuous quality than truthfulness, even though the two are often confused. 

To illustrate the point, let’s ask the question: Did Blasey Ford lie? At least two of the claims she testified to were untrue. She does not have a fear of flying, nor is she claustrophobic.[9] These were the kinds of fears that could have been the result of a teenage trauma. So did she lie? Or were these claims part of a consoling story about an event the memory of which was added to, subtracted from, compounded, embossed, embroidered or embellished over the years? We’ll never know. What we do know is that human memory is not especially reliable. Nor is uncorroborated eyewitness testimony. The number of wrongful convictions based on eyewitness testimony that much later have been overturned by DNA evidence is striking. Accounts provided by human beings are fallible. Humans don’t need to lie in order to get things wrong. Falsehood is not just intentional deception. People believe all sorts of things that are simply wrong.

At the same time, out of necessity, we have to trust others even though their view of things may be unreliable. A society of systemic suspicion is just as destructive as a society of liars. This is also why we have public methods of testing beliefs. We accept a vast amount of the accounts that are provided by our fellows. But we reserve the right to test beliefs if we think that something important might not have been accurately described. This is time-consuming, which is why we don’t do it routinely. An all-consuming scepticism is a form of madness. This is also why legal justice is an inherently expensive business. Gathering evidence and cross-referencing accounts is laborious. So is the meta-testing of that evidence for reliability. So also is the process of examining the underlying claims to see if they are consistent, plausible, and whether they fit the facts.

We do something much less rigorous yet roughly the same in the court of public opinion. Or at least we do so in societies that ask sceptical questions and value finding evidence for and against claims. The historic effect of Romanticism has been to partially replace that scepticism with enthusiasm. Romantic culture places emphasis on passionate beliefs. It invites us to display passionate convictions. By this measure, truth is a quality that is rooted in self-certainty. If I am absolutely convinced that “this happened to me”, and I express this self-certainty in a forceful manner, then my belief is “true”. This theory has had a big effect on modern societies. Our contemporaries, including juries, are more disposed to believe accounts that are expressed with emotional power.[10] Persons who express things stoically, in a matter-of-fact manner, are less likely to be believed.

That is what 250 years of Romanticism has done to our concept of truth. The subjective and expressive side of things increasingly has replaced the objective and factual. This is why the turning point in the Kavanaugh hearing occurred when Kavanaugh got angry. To that point Blasey Ford was “credible”. Even many Republican commentators thought so. The White House counsel Don McGahn saved the Kavanaugh nomination when he advised Kavanaugh to come out fighting. Kavanaugh did so, impressively. What people wanted to hear was not the facts but Kavanaugh’s deep sense of outrage at being accused of a horrible act he did not commit. In short, he turned the Romantic knife-edge of the larger culture against itself. He waged war against emotion and authenticity with emotion and authenticity. He won the day. 

This did not please everyone. In a show trial, if individuals defend themselves, that defence is proof of their guilt or their wicked nature. So it was in Kavanaugh’s case. When he defended himself vigorously in the spirit of Romantic emotivism, Kavanaugh’s detractors then argued he did not have the right “judicial temperament” and so was not qualified for office. Coming from the Romantic Left, which continually engages in high-pitched screeching and emotive demonisation, that was laughable.

Yet while one can match Romantic pique with Romantic pique, the battle of emotions still leaves unanswered the question of the truth of the matter. For strength of emotion is not a criterion of truth. It is not even a sure indicator of honesty or truthfulness even if it is now often taken for such. The underlying culture of authenticity that equates truthfulness and truth is deeply flawed. It contends that it is not facts that establish truth or reality but rather authentic personalities. These personalities are “true” because they present matters with passionate conviction. Intensity signals to an audience that a speaker is “real” or “genuine”. This is a trick of rhetoric, yet it is one that is deeply ingrained in modern culture. Unfortunately this trick is also deeply misleading. For human beings often lie and these lies are difficult to detect.[11] Humans also regularly convince themselves that fiction is fact.  

Authenticity is a cue. It is not only liars or dissemblers who use the cue. So do the self-deceived, the delusional and the sophistic. Self-delusion is even more difficult to detect than lies are. All lie-detecting techniques—such as reading “body language” or conducting polygraph tests—are pseudoscientific nonsense. They assume that the body can’t lie. So when you cross your arms you are being defensive (and not just huddling your body against the cold). You inadvertently reveal what your words are hiding. Except that you may be completely convinced of what you are saying—and not hiding anything at all even though what you are saying is inaccurate, unreliable, wrong or just plain ridiculous. People believe the silliest of things. Our bodies are no less capable of conveying false conviction, deception and self-deception than our speech is.

Human beings are double beings. This condition is distinct from the rest of creation. The human “I” is different from the human “me”. How the “I” represents the “me” to others is variable. This is not just a question of whether we are truthful or whether we lie. For there are many shades of grey. We all communicate using half-truths, omissions and exaggerations.[12] Everyday politics and social life are inconceivable without these. The accounts of what we witness are frequently unreliable, as are the accounts of our own lives. As a rule, memoirs and autobiographies are not very trustworthy or even very revealing. The number of persons who have been falsely imprisoned because of mistaken eyewitness testimony should give us pause for thought. Even so, we can believe deeply and adamantly—passionately—in the accounts that we provide. “This,” emphatically, “is what happened.” Yet often it didn’t happen that way. In fact, it could not have happened that way.

Try remembering some significant event from the distant past. Then compare it with the documentary evidence from that time. Yes, you misremembered it, invented it or revised it. We all do that. One of the reasons the human species has been such an evolutionary success (relatively speaking) is that it has learnt to “objectivate”. That is, it has learnt to store knowledge in external documents rather than in the human memory. It has also learnt to be “objective” in the sense of testing human belief against other people’s accounts, physical evidence and documentary evidence. And also by testing the evidence. This is necessary because what we observe and what we remember is very selective (our mind has to economise) and when we recall things our mind just fills in the details (inaccurately).

There is also the propensity of the human imagination to compress images of events and experiences into imaginative fictions. Dreams are the universal example of this. These fictions may have their own kind of truth. This is the sort of truth, for example, that we find in stories. But it is not factual truth; creative perhaps, but not objective. In some cases the fiction is simply fantasy. It’s a concoction of the way we wish things were. Sometimes it’s consolation or explanation or compensation for painful things that happen to us. Sometimes these fictions prove to be an interesting way of viewing the world. But they are not very useful in telling us what happened at a specific time and place to this person or that person. For that we need physical evidence, documentary evidence and corroboration from multiple other people’s accounts.


Postmodern narrative

A crucial aspect of what we call truth relies on objectivity. It requires impartial, independent and detached verification. We have to test claims about “what happened” with evidence that is separate from our personal recollection and observation. For this we need facts. This might seem a straightforward proposition. Yet we live in a society that’s been semi-Romanticised. This has caused objectivity to be partly replaced by emotivism. And over the top of emotivism has been spread yet another distorting layer. This is the idea of truth as a narrative of suffering.

Like emotivism, this idea also has roots in modern Romantic culture, specifically in the elevation of the literary imagination as a source of cultural truth. In the past half-century this thread has gained greater traction with the rise of postmodernism. It is difficult to overestimate how much the seeming obscurities of postmodern literary theory have quietly entered into the mainstream of social thinking. In part this was a function of the rise of the mass university which, often unconsciously, has imparted the pieties of postmodernism to the broader culture. Even many of the most prosaic and scientific disciplines in the universities have casually picked up the core nostrums of postmodern thinking. 

One of the key tenets of postmodernism is that truth is a narrative. Richard Rorty, the leading American postmodernist, expressed this in varying ways. He depicted truth as a function of metaphoric description, poetic contingency, transient theory and idiosyncratic storytelling. Traditionally understood, truth is a mirror or re-presentation of reality. It supposes that we can distinguish between reality and our interpretation of reality. It focuses on finding the truth. Postmodernism, Rorty argued, focuses on making the truth. It replaces evidentiary truth with narrative meaning. The discovery of facts is replaced by evocative storytelling in particular about cruel and humiliating acts. Truth becomes a specific way that we interpret and narrate the world. This narration has no connection with reality. It is not a mirror of reality. It doesn’t claim to correspond with reality.[13] Rather it is a function of the vocabularies we use. Those vocabularies are contingent. They change. People who use old vocabularies are justly liable to be humiliated by those who use the latest vocabularies. All vocabularies are temporary.

Postmodernism derives from the views of the nineteenth-century German philosopher Friedrich Nietzsche. In the second half of the twentieth century Nietzsche’s outlook became as influential on the political Left as Marx’s had been in the first half of the twentieth century. For Nietzsche, truth was a mobile army of metaphors, metonymies and anthropomorphisms. These are human relations that have been “poetically and rhetorically intensified, transferred, and embellished”.[14] Human relations “rhetorically intensified” perfectly describes postmodern truth. Under its wing, Rorty mused, metaphors of self-creation (“idiosyncratic narratives”) replace traditional realist ideas of truth, rationality and moral obligation.[15] Seeing ourselves against the backdrop of something “out there” is replaced by seeing ourselves “in our own terms”.[16] Self-creation replaces discovery. In self-creation we describe a “past that the past did not know”.[17] What matters are the self-overcoming stories we tell. There is no standpoint outside of these from which we can judge these narratives. They don’t have to match facts. The difference between perversity and genius, Rorty suggested, is that in the case of genius other people adopt the metaphors that we use to describe our obsessions. That way private obsession intertwines with public need.[18]

Rorty first came to public prominence in 1980 when he published Philosophy and the Mirror of Nature, where he argued for a new kind of theory of theories. Rorty’s view was anchored in a still more famous book, Thomas Kuhn’s The Structure of Scientific Revolutions, which appeared in 1962. Kuhn argued that science advances by moving from one conceptual paradigm or framework to another. Kuhn’s thesis was incredibly influential in universities for decades. It became an intellectual cliché. Rorty carried it (and a number of associated ideas) a couple of steps further. In doing so he sought to sever the traditional relationship between theories and the world.

Theories, Rorty thought, are essentially imaginative stories.[19] Conversely, reality is not independent of theories. To the extent that they exist, hard facts are just narrated descriptions of experiences. Such experiences are often cruel, brutal, painful and humiliating. We should not ask questions about the relation between such experiences and a purportedly independent reality because, Rorty argued, there is no reality independent of theory or story.[20] Our descriptions are essentially extensions of the stories we tell. Those stories or theories have no reference to the real world.[21] They refer not to an objective reality but rather to “what we believe now”.[22] Consequently we cannot expect theory-stories to fit the facts. If our stories define reality then no facts about that reality can prove or disprove our stories. Facts are experiences and if our story matches our experience it is true.[23] The corollary of this is that truth makes no sense except as an “intra-theoretic notion”, that is as part of a web of theory-stories.[24]

The view that narratives replace facts is commonplace in contemporary media culture and the universities. Many news outlets now retail narratives rather than facts. Events are reported by being inserted into the latest fashionable narrative line. The same is true of universities. It’s easy to hoax academic journals in the social sciences and humanities because so many articles in those journals today are indistinguishable from fictions. Their point is not to discover something significant about the way the world works but rather to tell a story that, as long as it follows a couple of basic precepts, is immune from criticism. The most basic precept is that the author must invoke a story-line that is dark in nature. I mean this in the sense that the story must have as its pivot or spine a description of trauma, oppression or suffering. It is not enough, as in the Romantic account of truth, that a person states a claim with “conviction”. Rather, in the postmodern version, the person’s story must be of the kind that invites “solidarity”.[25]

A successful hardworking white prep-school boy from an affluent conservative Maryland suburb, like Kavanaugh, does not merit and cannot elicit such solidarity. The opposite applies to a successful prep-educated white female academic from an affluent hyper-liberal California suburb who works in a university psychology department that focuses on trauma, suffering and victim narratives. Blasey Ford’s Palo Alto University program says that it teaches its students to be “science minded while appreciating the larger role of psychology in alleviating suffering in the world”.[26] It offsets traditional “evidence-based clinical models” with its mission to produce “culturally competent clinical psychologists”. The postmodern subsuming of “evidence” by “cultural competence” is deeply embedded in its intellectual agenda.

In Palo Alto the Anglo-American tradition of scientific and professional scepticism finds itself overtaken by claims of narrative-driven “cultural competence”. Science is outweighed by stories of suffering. The initiators of the Kavanaugh drama sought to replicate this on a national stage. Defenders of the conservative prep-school boy and the liberal prep-school girl confronted each other with different standards of truth. For Kavanaugh supporters, truth is traditional evidentiary truth. For Blasey Ford defenders, truth is the truth of a narrative that tells a story of suffering. Believe the accuser, they insist. Nothing more is required. No evidence is needed. The narrative alone is sufficient. It is self-validating. It has no reference to anything outside of itself except other narratives of suffering and cruelty.

Rorty began his intellectual career in postmodernism arguing that we are in no position to offer reasons for choosing one set of descriptions over another. Then he claimed that “new” narratives were better than “old” narratives,[27] but added that narratives which expose pain, suffering and cruelty have a special status.[28] In the past four decades as postmodern culture has spread, society has been engulfed by a roiling procession of narrative lines, each more bleak than the previous ones. These tell tales of unhappiness, discomfort, insecurity, bleakness, disappointment, thwarted aspiration, and on and on. Each outbids the other to be dark and forbidding.

In 1985 Rorty published an essay titled “Solidarity or Objectivity?”[29] In it lie the intellectual roots of the rage against Kavanaugh. Rorty argued that the old cognitive virtue of objectivity had to be replaced by the moral imperative of solidarity. This is exactly what the American political Left insisted throughout the dispute over Kavanaugh. Empathy with claims of assault over-rules any objective evaluation of whether an assault has taken place. This is the core of the outlook of American postmodernism. It is an attitude that emerged in the universities in the 1980s and has now propagated itself widely outside the universities. It assumes that warm sympathy outweighs cold detachment. Accordingly, stoic impassivity is a sign of viciousness, and scepticism is a form of heartless depravity. Empathic belief is all-important. One is obliged to “believe the victim” without any evidence or verification. It is not necessary to ask if an accusation is true or false, because objectivity is no longer a relevant criterion. Solidarity, compassion and pity have replaced it.


Reality check

Facts, though, are stubborn things. They are not so easy to brush away. They defy waves of anxiety and attacks of panic. They soldier on stoically, through torrents of rage and anger, in order to make their point. Their role is pivotal, not least when allegations are made about supposed criminal conduct.

Modern liberal societies are founded on two precepts. These are the basis of civil society. One is “minimise violence”. The other is “minimise fraud”. In cases of alleged rape the two have a complex relationship. A mark of a good society is that sexual violence is reduced to close to zero but that in punishing violators no one is wrongly accused or convicted. These dual imperatives often have a tense relationship. On the one hand sexual assault is often difficult to prove as it occurs principally in private between two parties known to each other. Relatively few reported rape cases proceed to court. As with physical assault generally, there is a fairly low level of reporting of sexual assaults.[30] On the other hand, the incidence of false reporting and baseless allegations of rape is high compared with other serious crimes such as murder.[31]

The profound tension between “overcoming force” and “overcoming fraud” forms the background not just of the Kavanaugh hearing but of the entire contemporary social response to rape. This is a volatile, even explosive background. Decent persons find themselves torn between empathy with those reporting an assault and a scepticism that asks for objective proof of an assault and not just an allegation. This is almost an impossible dilemma. It throws any civil society debating the question into tortured knots.    

To be detached when weighing an allegation of sexual assault is difficult. This is because in almost all cases rape is the act of a man assaulting a woman.[32] The act brutally evokes that impossibly complex question: What is the proper relationship between the sexes? The sensitivities, subtleties and ambiguities of the sometimes unfathomable relationship between men and women make sexual assault a topic that in so many ways resists analytic scrutiny. Yet needs must. For human beings have a strong propensity to make things up—both innocently and maliciously. This is not just that some of them, men and women, are liars. They are also poor witnesses with faulty memories. Some are fantasists and fabulists. Their imagination over-determines reality. Then there are those who tell themselves stories they find satisfying or consoling but that have no correlation with reality.

Postmodern culture exacerbates this normal human proclivity. It defines us as story-tellers. It says that these stories can’t be rationally scrutinised and that they are indifferent to reality. They have no objective correlative. As Rorty put it, they are just part of a web of belief.[33] They don’t refer to reality but rather to other stories. What is important are the words we use. These words change over time. We acquire new—and invariably bleaker ways—of talking about ourselves. These narratives have no firm or mimetic connection with the world.

But we all need a reality check. From time to time it is crucial to ask whether what happened really did happen. None of us are very accurate when we report what happened to us—irrespective of whether the event was in the distant past or just recently. We make up details and we omit others. Mostly we get by when we do this, and no harm occurs. But in some cases it matters greatly that our accounts of what happened to us are scrupulously accurate and can be verified with compelling evidence and reliable independent corroboration. In the handful of things that really matter in life, we need to be able to provide reasons why someone else should believe us. In all serious practical matters, our stories have to correspond with the facts.   

Peter Murphy is the author of The Collective Imagination: The Creative Spirit of Free Societies and Universities and Innovation Economies: The Creative Wasteland of Post-Industrial Society.



[1]              Christine Blasey Ford’s allegation of sexual assault was made public on September 12, 2018. A supplementary hearing of the Senate Judiciary Committee was held on September 27 to which both Blasey Ford and Kavanaugh testified. The FBI conducted a further background investigation on Kavanaugh, revealing nothing more than Kavanaugh’s six previous background checks for high office had revealed. The full Senate voted on October 6 to confirm Kavanaugh’s nomination. He was sworn in as an Associate Justice of the US Supreme Court on October 7, 26 days after his trial by ordeal had begun.

[2]              Kavanaugh was nominated in 2003 and finally appointed in 2006.

[3]              Postmodernism, the dominant ethos of American universities over the past four decades, has rotted much of the inner fibre of America’s university-educated professional-managerial elite. Episodes like Kavanaugh’s trial by ordeal suggest that time is getting closer for another historic circulation and replacement of the American elite. The theory of the circulation of elites was developed by the Italian economist and sociologist Vilfredo Pareto.

[4]              For the following see Texas v  Johnson 1989, Planned Parenthood v Casey 1992, Alden v Maine 1999, Solid Waste Agency of Northern Cook County (SWANCC) v U.S. Army Corps of Engineers 2001, Lorillard v Reilly 2001, Zadvydas v Davis 2001, Immigration and Naturalization Service v. St. Cyr 2001, Zelman v Simmons-Harris 2002, Rasul v Bush 2004, Grutter v Bollinger 2003, Gonzales v Carhart 2007, Massachusetts v Environmental Protection Agency 2007, Citizens United v Federal Election Commission 2010, Wal-Mart v Dukes 2011, National Federation of Independent Business v Sebelius 2012, Obergefell v Hodges 2015.

[5]              See In re Navy Chaplaincy 2008, Seven-Sky v Holder 2011, Heller v D.C. 2011, Klayman v Obama 2015, Garza v Hargan 2017.

[6]              Mark Judge, Patrick ‘PJ’ Smyth, and Leland Keyser.

[7]              Accusations by Deborah Ramirez and Julie Swetnick.

[8]              Richard Sennett in The Fall of Public Man (Cambridge, Cambridge University Press, 1977) gave a good account of how the tenor of public life changed, beginning in the nineteenth century, when “personality” began to enter the public domain in a major way. The effect of this was to shift focus from the substance of what was being said or done to the emotional tone of a word and a deed—its loudness or softness, its capacity to enthuse audiences by shocking them while keeping those shocks at a safe distance managing thereby to stimulate an audience without challenging it. Part of the art of being a “personality” is to convey a sense of emotion being wrung out of a tortured soul. Publics that are attracted to “personalities” like the feelings of being overpowered by something that is immense or awesome. “Personality” presents its palette of emotions as an outcome of internal struggle and stress. Emphasis is placed on feelings as an act of disclosure—the revelation of an authentic self. The fact or substance of an action is less important than the inner psychology of the person and the outward “genuine” expression of that inward psychology. Authentic emotion is revealed through dress, fashion, and body language. These provide clues to an inward true private self. Yet all this of revelation, shock, stress, struggle and sublimity occurs in a safe mode. For the social drama that is triggered by “personalities” ends up being not much more than a kind of melodrama.

[9]              “She maintains that she suffers from anxiety, claustrophobia, and post-traumatic stress disorder (PTSD). The date of the hearing was delayed because the Committee was informed that her symptoms prevent her from flying. But she agreed during her testimony that she flies ‘fairly frequently for [her] hobbies and … work.’ She flies to the mid-Atlantic at least once a year to visit her family. She has flown to Hawaii, French Polynesia, and Costa Rica. She also flew to Washington, D.C. for the hearing.” (Rachel Mitchell, Nominations Investigative Counsel United States Senate Committee on the Judiciary, Memo to Republican Senators, September 30, 2018.) In testimony to the Senate Judiciary Committee Blasey Ford cited trauma as the reason for an extensive remodelling of her home and the installation of a second front door—implying a psychological release from traumatic claustrophobia. In a letter to the Senate Judiciary Committee a former boyfriend of Blasey Ford recounted that, during the period he had known her (six years in the mid-1990s), she had lived for a time in a micro 45 square-metre apartment and had “never expressed a fear of closed quarters, tight spaces, or places with only one exit”.

[10]             Mares and Turvey call this cognitive bias “the affect heuristic”. It means that we decide what is true or false, real or fake based on the emotional content of what or how others communicate. We tend to be overwhelmed by emotional displays and emotional stories tend to be inherently “believed”. However, belief (that is, being inwardly certain of something) is not the same as truth. We can be firmly convinced of something without it being true. Mares and Turvey observe a subtle misleading equation that occurs. Intense emotions are equated to genuineness. The more that emotional intensity is present, the more “real” we conclude something must be. The un-emotive stoic person testifying is less likely to be regarded as genuine, and so less likely to be believed. One reason for this is that strong emotion pressures an observer to make a “choice”. Once this initial “choice” is made under emotional pressure, subsequently we are disposed to double down on and reinforce the “choice” that we have made. Aurelio Coronado Mares and Brent E. Truvey, “The Psychology of Lying” in B. Truvey, J.O. Savino and A. Mares (eds) False Allegations: Investigative and Forensic Issues in Fraudulent Reports of Crime, London, Elsevier, 2018, pp. 24-26.

[11]             Aurelio Coronado Mares and Brent E. Truvey, “The Psychology of Lying” ibid, pp. 21-36.

[12]             Aurelio Coronado Mares and Brent E. Truvey, “The Psychology of Lying” ibid, pp. 27-28.

[13]             According to an Ngram search on the Google book database, the term “correspondence theory of truth” (namely the traditional theory of truth) peaked in usage in 2000 and declined sharply in the two decades after that. This directly reflects the rise of postmodernism.

[14]             Nietzsche, On Truth and Lies in a Nonmoral Sense, 1896 [1873].

[15]             Richard Rorty, Contingency, irony and solidarity, Cambridge, Cambridge University Press, 1989, pp. 33, 44, 48.

[16]             Rorty, Contingency, Irony and Solidarity, pp. 4, 40; Philosophy and the Mirror of Nature, Oxford, Blackwell, 1980, pp. 292-293.

[17]             Rorty, Contingency, Irony and Solidarity, p. 29.

[18]             Rorty, Contingency, Irony and Solidarity, p. 37. Rorty denied some of the social and political implications of postmodern self-creation or self-overcoming. He contended that a “liberal society” was nothing more than a mechanism for forging compromises between different idiosyncratic selves and ends, no matter how perverse these might be. (See Rorty, “Moral Identity and Private Autonomy: The Case of Foucault” [1989], Essays on Heidegger and Others, Cambridge, Cambridge University Press, 1991, pp. 196-197.) That is, he was blind to the political implications of the idea of postmodern self-creation. Since the 1970s this idea has gradually morphed into despotic attempts to have a person’s “cultural competency” in self-overcoming crush public reason and evidentiary truth. Lobbies for postmodern moral “identity” politics along with a proliferating array of self-overcoming self-descriptions have combined to now present totalitarian demands to silence sceptics and critics and impose these proliferating and frequently unrealistic self-conceptions on the law. Going along with postmodern self-mythologizing has turned into a political imperative, which Rorty did not expect but also failed to anticipate.

[19]             Rorty himself moved from philosophy to teach in humanities programs. This was a pointedly symbol shift. He moved from being the Stuart Professor of Philosophy at Princeton University to become Kenan Professor of Humanities at the University of Virginia and then Professor of Comparative Literature at Stanford University.

[20]             Rorty, Philosophy and the Mirror of Nature, pp. 277.

[21]             Rorty, Philosophy and the Mirror of Nature, pp. 276-281; “Philosophy as science, metaphor, politics” [1989], Essays on Heidegger and Others, Cambridge, Cambridge University Press, 1991, pp. 23-24.

[22]             Rorty, Philosophy and the Mirror of Nature, p. 276.

[23]             Rorty, Philosophy and the Mirror of Nature, p. 277.

[24]             Rorty, Philosophy and the Mirror of Nature, p. 278.

[25]             Rorty, “Science as Solidarity” [1987] in Objectivity, Relativism and Truth, Cambridge, Cambridge University Press, 1991, pp. 35-45.


[27]             Rorty, Contingency, Irony and Solidarity, pp. 29, 39.

[28]             Rorty, Contingency, Irony and Solidarity, pp. xv, 92-93. Rorty (p. 92) thought that what we share in common with others is susceptibility to pain, and that special sort of pain that we do not share with animals, humiliation. However different the self-creation of each individual might be, what he hoped, perhaps expected, was that there was enough overlap between each person’s self-overcoming that they would at least be mutually aware of the possibility of suffering. As the American cultural left adopted these ideas it also translated them into more reductive terms, so that truth became redescriptions of suffering, a conflation of what Rorty himself thought were incommensurable qualities, namely self-creation and justice (xv). That might explain why Rorty in his later year saw fit to make jibs at the expense of the cultural left, yet in truth the cultural left did nothing more than pursue the logical implications of Rorty’s theory. 

[29]             Richard Rorty, “Solidarity or Objectivity” [1985] in Objectivity, Relativism and Truth, Cambridge, Cambridge University Press, 1991, pp. 21-34.

[30]             In 2016-17, 2.4 percent of Australians experienced a physical assault, 0.4 percent experienced a sexual assault. Of those, 53.8 percent reported the physical assault and 39 percent reported the sexual assault. In comparison 75.4 percent of break-ins that occurred were reported and 90.1 percent of motor vehicle thefts. Though the data estimates by state are not especially reliable, the data nonetheless suggests that those Australian jurisdictions with the lowest level of reporting of sexual assault are also Australia’s most politically “progressive” jurisdictions, Victoria and the ACT. Australian Bureau of Statistics 2016-17 national Crime Victimisation Survey. Tables 1 and 2.             

[31]             Analysing the FBI’s Uniform Crime Reporting (UCR) program statistics for 2006-2010, De Zutter, Horselenberg and van Koppen calculated that 5.5 percent of rape allegations made to police in the US were determined by the police to be false or baseless. This is distinct from allegations that proceed to court and are found by a court to be without merit. The 5.5 percent of police-classified false or baseless rape allegations compares with 3.3 percent of murder allegations, 1.35 percent of manslaughter accusations and 1.16 percent of all crime allegations. Only the number of unfounded allegations of robbery (5.78 percent) is comparable with the sexual assault figure. André De Zutter, Robert Horselenberg and Peter J van Koppen, “The Prevalence of False Allegations of Rape in the United States from 2006-2010”, Journal of Forensic Psychology, 2017, 2:2, Table 1.

[32]             0.7 percent of women over the age of 18 in Australia were subject to sexual assault compared with 0.1 percent of males in 2016-17. The cohorts most affected by sexual assault were persons aged 18-24, unmarried, and employed part-time in the labour force. Level of education was not a differentiating factor. Australian Bureau of Statistics, Crime Victimisation, Australia, 2016-17 based on 28,207 respondents to the ABS 2016-17 Multipurpose Household Survey, Table 17.  

[33]             Richard Rorty, “Inquiry as Recontextualization” [1988] in Objectivity, Relativism and Truth, Cambridge, Cambridge University Press, 1991, pp. 93-112.

7 thoughts on “Kavanaugh’s Trial by Ordeal: Burning Truth in Effigy

  • johanna says:

    Excellent article, Peter.

    Your comments about the unreliability of memory and the validation of passionate belief made me think of the Stolen Generation mythology.

    No amount of factual repudiation shifts the firm belief of its advocates (both indigenous and not) in these stories. To even question these beliefs is portrayed as equivalent to supporting genocide.

    Just as supporters of Kavanaugh’s right to due process were excoriated as rape apologists, supporters of dispassionate analysis of what actually happened to Aboriginal children in the period under discussion are regarded as monstrous, murderous racists by believers.

    I suppose it is part and parcel of being human, and a reminder of what a thin, often broken, veneer of rationality sits atop our culture.

  • Damien Richardson says:

    Unfortunately, there is no will in our society to hold false accusers to account. We are so cowed by the fear of the accusation of misogyny that we would prefer innocent men go to jail than a false accuser stand trial. There is a deficit in empathy for the plight of men vis a vis women. A deficit that doesn’t suit the victim narrative of post modern feminist “analysis.” If Blasey Ford is held to account for her treachery it will be as a matter of conscience not judicial consequence. Banking on a institutionalised empathy gap is a tactic long used by lawyers in Australia’s corrupt family court system. I’m sure it accounts, at least in part, for the high male suicide rate which also falls foul of the empathy gap. The proceedings surrounding Justice Kavanaugh’s inauguration should come as little surprise in a nation like ours long acculturated to feminist indoctrination. If false accusers faced legal consequence for their actions the system would either bend further in maintaining the pretence of their innocence or the accusations would stop.

  • ianl says:

    > “If false accusers faced legal consequence for their actions the system would either bend further in maintaining the pretence of their innocence or the accusations would stop”

    Guess which …

    Truth by accusation ? Where are our intrepid lawyers, intoning the “innocent until proven guilty” mantra from rooftops with righteous indignation, quivering with outraged honesty ? “Banking on an institutionalised empathy gap”, one suspects.

  • en passant says:

    In 2012 I researched and wrote a family history. I filled in gaps of recent times (right back to my childhood) from memory. It will be updated in 2020 to remove 37 errors!
    Readers comments:
    “No, it could not have been 1972 because …”
    “No, It was not A, it was B, because …”
    “That’s not what happened, because …”
    “That’s not a photo of X, that is Y …”
    Blasey Ford’s pretend childish voice while giving false testimony will probably get her a special Oscar. Hollyweird loves that sort of thing.
    I have paid to watch movies only 4x in 2018. One film was Korean (Battleship Island – highly recommended) and three from Hollyweird, all of which were a waste of money).
    Kavanaugh was not guilty.
    Lindy Chamberlain was not guilty
    The HillBillary Foundation is guilty of dozens of crimes, but as they are part of the American Royalty will not be brought to trial. Of course, we have our own Royal Elite in Oz who are never prosecuted either, so we are right up there with the corrupt best.
    Go Trump!

  • Jody says:

    “A blameless man” is a bit of a stretch. Where there’s smoke there’s fire; I’m sure Kavanaugh got up to all those shenanigans BUT the presumption of innocence exists until PROVEN otherwise – except in politics and in the Australian Family Court system.

  • says:

    Oh, for goodness sake Jody, there is no smoke and certainly nothing resembling a fire. These lying, trained hate advocates must go to gaol. Two are under investigation and Ford should brought to justice for her very obvious dishonesty.

  • Andrewurban says:

    “Our contemporaries, including juries, are more disposed to believe accounts that are expressed with emotional power. Persons who express things stoically, in a matter-of-fact manner, are less likely to be believed,” Exactly why Lindy Chamberlain and Sue Neill-Fraser were wrongfully convicted of murder.

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