America has always had an unhealthy obsession with sex scandals, particularly ones that can take down powerful men. Too often this obsession has resulted in the public trauma and oppressive bullying of the woman involved. Once she’s been sufficiently dehumanized, the public inevitably moves on to a visceral conversation centered around how unfair such accusations are to the man, begging us to consider what is at stake for him, and not her.
The latest and now perhaps most famous example of this is now-Justice Brett Kavanaugh. Throughout his nomination process for the US Supreme Court, Kavanaugh faced a slew of sexual assault allegations stemming from his youth. All involved heavy drinking, forceful advances and unwanted touching. Each accusation seemed more brutal and damning than the last. Naturally, Kavanaugh’s critics, and especially women in the #MeToo movement, saw these allegations as serious red flags for one of the country’s most powerful positions.
Kavanaugh’s supporters, however, seemed solely focused on how to overcome the allegations, rather than determining whether there is any truth to them. Throughout his tumultuous nomination process, their favorite tactic was dragging “due process” into the debate. Generally, this strategy can be summarized by someone arguing “these allegations aren’t supported by any evidence! Innocent until proven guilty! Unless unquestionable, undeniable proof can be provided at our convenience, these accusations should be ignored; in fact, they should even her for speaking out!” It’s an effective technique, as it pulls the public’s attention away from considering the validity of Dr. Blasey Ford’s testimony and instead attempts to comport the defense of Kavanaugh with support for a poorly understood but highly valued legal concept.
Were you to have exclusively followed the unraveling scandals and hearings surrounding Kavanaugh through right-wing news, you’d think it was “due process” itself that was at stake. Kimberly Strassel of The Wall Street Journal equated Kavanaugh facing justice for alleged sexual assault to the threat of losing “your job, your life, your home” for no reason. According to Sean Hannity, giving a woman a fair chance to be heard presents a “clear and present danger to every American” that denies us all the “presumption of innocence.” Sen. John Kennedy of Louisiana, who sat on the committee that was expected to consider Dr. Ford’s testimony impartially, went straight to home base and said “This is no country for denying people due process.”
Kavanaugh is not entitled to due process. Not when it comes to the possibility that the allegations of sexual assault might deprive him of a Supreme Court appointment. “Due Process,” which is derived from the fifth and 14th Amendments of the US Constitution, is a legal concept that typically prevents anyone from being deprived of “life, liberty, or property” without receiving an impartial hearing and fair treatment by the law. It is a foundational basis of the American legal system. Even though Republicans, ironically, have been attacking the scope of due process for decades, neither political party truly wants it repealed.
To repeat, a key part of due process is deprivation of “life, liberty or property.” Kavanaugh, deservedly or not, goes onto the bench with a scarred reputation and terrible public image. He might go on to be one of the most reviled Justices in American history. This will likely cause him pain. Yet, at no point was Kavanaugh’s life, liberty or property threatened. He was not at risk of imprisonment. He would not have been required to pay Dr. Blasey Ford a large sum in damages. He was not being deprived of any basic right. If he had been, there might actually be a basis for all of this inflammatory rhetoric. There isn’t.
Kavanaugh was on a job interview. As any Republican will rush to tell you under any other set of circumstances, a job is a privilege, not a right. Any American can be deprived of a job, no matter how deeply they desire it, for the slightest whiff of scandalous behavior. The internet is rife with people losing employment over something as trivial as an awkward social media post. So why did we treat Kavanaugh differently? Why does it seem like he, alone, was entitled to a job just because he wanted it? Why did we actually reward him with a chance to go on unabridged temper tantrums about besmirched dignity?
We did this because American society deems the reputation of elite, wealthy white men to be a guaranteed right. To deprive a man like Kavanaugh of an illustrious job is, in society’s eyes, is a travesty worse than denying a woman her right to seek justice for sexual assault. And that is why the invocation of “due process” is so insidious: those who invoke it know that parts of the country will readily accept that Kavanaugh, a powerful white man, should not be deprived of what he wants unless the evidence against him is unimpeachable, beyond all doubt. We shouldn’t be shocked at this. This is a country where Brock Turner could molest an unconscious woman on the street and barely receive a slap on the wrist because a judge thought too much jail time would damage his future. This is a country in which private companies consider millions in damages to protect the public image of powerful men to be an acceptable cost of business.
Contrast that with how these same people treat a woman’s right to her body. We have a president who believes that, as a powerful man, he has the right to grab any woman’s genitals whenever he wants to. We have a Senate Majority leader who, in the past decade, repeatedly voted against legislation that allows women to recover civil damages against men who commit violent crimes against them, even if these men are not criminally prosecuted. Even the conservative argument against abortion, at its bare bones, is the argument that a woman’s body essentially becomes a state-owned baby factory from the moment she gets impregnated. America has a long history of treating any control that a woman has over her body just like a job: not a right, but a privilege.
In this sense, Kavanaugh’s entire nomination process was a reflecting glass for our rights and privileges, both men and women. If you’re a man, your reputation is linked to your right to life, liberty and property. If you’re a woman, the right to seek justice for violence to your body is a privilege. This is what “due process” now means to the other side. By applying it to Kavanaugh’s job interview, we’ve only confirmed once again that if a man wants something badly enough, he’ll assert the right to it, even if he doesn’t have one.