Personalities Aside: Understanding The Kavanaugh Confirmation Battle

James A. Montanye

Abstract

This brief essay examines the Kavanaugh confirmation battle from the perspective of (i)
supply-side legislative politics, and (ii) demand side identity politics. The supply side was
dominated by the long-standing struggle between negative and positive conceptions of
freedom and constitutional interpretation. The demand side was dominated by feminist
entitlement-seeking through identity politics, as enabled by the Civil Rights Act of 1964.
Entitlement-seeking by feminist factions parallels that by African-Americans in that both
factions use “grievance and shame tactics,” as seen in time-series ngram data. The
principal grievance and shame vectors are shown to differ between the two factions.

Introduction

The supplemental Senate Judiciary Committee hearing considering Judge (now

Justice) Brett Kavanaugh’s nomination to the Supreme Court was a foreseeable tragedy
and farce waiting to unfold, and yet it was wholly unavoidable given both the numbers
involved and fractious political environment. Attention became riveted on personalities:
the nominee himself; those who initially accused the nominee of sexual impropriety;
those who subsequently accused the nominee of youthful inebriation; Committee
members who baited and provoked the nominee beyond the point of exasperation, then
accused him of lacking judicial temperament and of delivering perjured testimony before
the Committee; and finally, the disparate array of protestors clutching commercially-
prepared placards and chanting doggerel slogans in opposition to the nominee and in
praise of his antagonists, and condemning Republican senators for allegedly neglecting
their advise and consent responsibility. The upshot was weeks of highly-charged media
infotainment along with a fresh, if not new low point in the conduct of American
government. With alleged death threats flying, re-election concerns swirling, and the
cornerstones of future presidential campaigns being laid, the country’s view of its
political forest was obscured by the political trees.
The confirmation hearing’s deterioration occurred, not only because of the
personalities involved, but also because of the politics at issue. Justice Kavanaugh—like
Justice Clarence Thomas and Judge Robert Bork who also were subjected to character
assassination in the course of confirmation hearings—is a “conservative” judge and legal
scholar. He, along with most Republicans, represents a “negative freedom” tradition of
constitutional interpretation—a characterization first described by the philosopher Isaiah
Berlin in a classic exposition of “negative” and “positive” freedom concepts (Berlin
2006). Positive-freedom advocates (e.g., Democrats), by contrast, forcefully oppose the
negative-freedom constitutional paradigm, advocating instead looser interpretations that
permit “real freedom” (the historicist philosopher G.W.F. Hegel’s conception) to be
achieved through comprehensive legislation and pervasive social regulation. Positive-
freedom advocates vigorously assert that the Constitution is “not a static but rather a
living document, and must be read in the context of an ever-changing world. […]
According to this view, the Founding Fathers and original ratifiers told us how to think
but are no longer around to tell us what to think” (Obama 2006, 89–90). Negative
freedom advocates readily accept the sense of the second quoted sentence while flatly
rejecting the first. They cleave instead to historical accounts that show the Founding
Fathers following the developing trend of history when telling (and showing) us how to
think in negative-freedom terms.
The two principal issues underlying the Kavanaugh confirmation flow from the
differences between opposing conceptions of freedom. These differences manifest
themselves in the supply-side of legislative politics, and the demand side of identity
politics. The effects of these differences are addressed in the sections below. The essay
concludes with a brief comment.

Legislative Politics

Political and semantic drift regarding the American conception of freedom was
described several decades ago by the noted philosopher and economist Frank Knight.
Knight described the meaning of freedom (aka “classical liberalism”), both as it emerged
during the Eighteenth Century (and subsequently was defined by the political philosopher
John Stuart Mill [1859]), and as it came to be reinterpreted thereafter. Knight noted that
liberalism (Berlin’s “negative freedom”) originally denoted

[…] individual freedom from the control of government, law and tradition in all
fields of action, including religion, social relations and economic life. This
freedom was early associated with political liberty in the sense of free or
democratic government, through representative institutions. […] The later
nineteenth and twentieth centuries have seen the development of a school of
thought which has insisted on using the name of liberalism, but which advocates
to a large extent a reversal of the original liberal attitude toward government
regulation of economic activities and relationships. […] The more extreme
proponents of this new liberalism, or “neo-liberalism,” advocate a large measure
of collectivism—replacement of exchange transactions by direct administration of
economic affairs by political agencies. The argument of the neo-liberals is that
political action is capable of securing a much larger degree of “real” liberty or
freedom to the individual. (Knight and Merriam [1945] 1979, 6–7).

The meaning of “neo-liberalism” (Berlin’s “positive freedom”) subsequently become

reversed by a combination of semantic drift and political mischief. The term presently
connotes “neo-conservative” ideals and policies that once were associated with classical
(negative freedom) liberalism. The influential Canadian journalist Naomi Klein, for
example, freely characterizes the University of Chicago’s extreme laissez-faire brand of
political economy as “neoliberalism or, in the U.S., neoconservatism” (Klein 2007, 253;
see also 14–15 and passim). The meaning of “liberalism” and “conservatism” and their
cognate forms has become so thoroughly muddled that the terms must be interpreted
carefully and cautiously.
Positive freedom perforce requires suppressing the will and ambition of
individuals in the name of promoting normatively “real” freedom. It entails treating
individuals as social means rather than ends in themselves. It demands an Orwellian-style
surrender of the individual’s will to the imposed will of an authoritatively god-like
(omniscient and omnipotent) state that is governed by all too human philosopher-kings.
The state’s imposed will resembles the “general will” only by grand coincidence. Its
presumed reciprocal obligation is to provide an array of social entitlements that
constructively relieve individuals of such natural burdens as common sense
responsibility, productive cooperation, and courtesy, while simultaneously absolving
preferred individuals of accountability. Resistance to positive freedom politics constitutes
a secular heresy that justifies inquisitional tactics and methods of the sort displayed
during the Kavanaugh confirmation hearings.
The pattern of political and semantic drift is paradoxical in at least one
substantive respect. The trend of intellectual thinking for centuries was away from the
positive-freedom political form introduced by Plato, and the neo-Platonist theological
form subsequently promoted by St. Augustine. Variations on these forms were imposed
by Church and State authorities throughout the antiquarian and feudal eras. Pervasive
control over the lives of individuals was essential for maintaining status quo social
stability and wealth distribution. This level of control unsurprisingly benefitted
disproportionally those individuals who did the controlling. As private ambition came to
be viewed and accepted as a productive virtue instead of a disruptive vice, intellectual
attention turned to the importance of ambition as a natural force for controlling the state,
instead of vice-versa. This paradigmatic shift in political philosophy began with Francis
Bacon’s brief essay titled Of Ambition ([1625] 1901). Its full unfolding is documented
especially well in works by the economist Albert Hirschman ([1977] 2013), the historian
William King (2013), and the philosopher Karl Popper ([1945] 1963). The shift reached
an apex in a familiar passage by James Madison writing in The Federalist No. 51:
“Ambition must be made to counteract ambition. The interest of the man, must be
connected with the constitutional rights of the place. It may be a reflection on human
nature, that such devices should be necessary to control the abuses of government. But
what is government itself, but the greatest of all reflections on human nature? If men
were angels, no government would be necessary” (Hamilton, Madison, and Jay ([1787]
1961, 322).
Advocates of positive freedom have been at war against Madison and later
advocates of classical liberalism for more than a century. Positive freedom attempts to
reverse the trend of history while disingenuously claiming to be on the right side of it; its
advocates, who have failed to learn from history, seek to repeat it rather than follow its
trend. Efforts along this line gained ground over the past half century due to the weak
resistance and occasional complicity by nominally classical liberals. Progress has slowed
in recent years due to the conspicuous failure of positive-freedom policies to deliver on
their utopian promises. This failure has reinvigorated support for pragmatic negative-
freedom politics, while provoking frustration and anger on the political left. One upshot
is the present fiscally and morally bankrupt political age of entitlement whose principal
component is identity politics.
 Identity Politics

Writing in the late 1960s, the noted economist Albert Hirschman commented on
the tactics and methods by which disadvantaged individuals and groups act to improve
their situation. Hirschman observed that group action historically arose

at intermediate stages, and there is a special need for it when social cleavages
have been protracted and when economic disparities are reinforced by religious,
ethnic, or color barriers. In the United States, in fact, reality has often been
different from ideology: as is well recognized, ethic minorities have risen in
influence and status not only through the cumulative effect of individual success
stories, but also because they formed interest groups, turned into outright
majorities in some political subdivisions, and became pivotal in national politics.
Nevertheless, the black power doctrine represents a totally new approach to
upward mobility because of its open advocacy of the group process. It has
immense shock value because it spurned and castigated a supreme value of
American society—success via exit from one’s group. (Hirschman 1970, 111–
112).

Hirschman alludes to corroborating evidence given in an earlier book by the social

scientist Christopher Lasch (1969, 134–141). Both authors, if writing today, could cite
works by a growing number of biologists and evolutionists who argue, controversially,
perhaps disingenuously, and along positive-freedom lines, that Darwinian natural
selection at the group level is a natural phenomenon that needs to be reflected in our
political process (Montanye forthcoming).
The politics of disadvantaged individuals and groups dates to antiquity. Plato’s
Republic and Gorgias dialogues addressed a perennial social question raised by the
military historian Thucydities’ “Melian Dialog” (Thucydites ([431 BCE] 1876). The
author recounted the now-familiar episode of an Athenian general (perhaps conversant
with Pindar’s poetry) explaining to the hapless citizens of Melos that the strong do as
they please while the weak suffer what they must. In Republic (338c), Plato’s interlocutor
Thrasymachus voiced the opinion that “justice is nothing other than the advantage of the
stronger,” and so it is both natural and just for the strong to fashion laws to their own
advantage. In Gorgias (483b–c), the interlocutor Callicles accepted that “the people who
institute our laws […] assign praise and blame with themselves and their own advantage
in mind.” However, he also credited the evolution of just laws to “the weak and the
many” who ultimately prevail over the strong simply by decrying self-interested laws as
being “shameful” and “unjust.” This insight has the feel of nonsense upon stilts. And yet
the philosopher Friedrich Nietzsche, writing some twenty-three centuries later, lamented
the ability of the weak and the many to constrain the ambition of elite Übermenschen
(Nietzsche [1901] 1968).
The grievance and shame tactics described by Callicles no longer are exclusive to
the weak and the many. Nowadays they routinely are deployed successfully by the weak
and the few. Time-series macroeconomic (DeLong 1998) and ngram data available from
Google Books (ngrams are relative word frequencies, as described below) reveal African-
Americans’ use of historical slavery (grievance) and continuing racism (shame) to claim
a greater share of America’s post-war prosperity in the form of group-level entitlements
(Montanye 2016), as described by Hirschman and Lasch. This development marked the
beginning of large-scale entitlement seeking (a variety of rent seeking) by means of
identity politics.
The modern feminist entitlement-seeking movement, which was sparked
principally by Betty Friedan’s The Feminine Mystique ([1963] 2013), arose
contemporaneously with the African-American civil rights movement. Both movements
drew legislative support from the Civil Rights Act of 1964 (Pub.L. 88–352, 78 Stat. 241,
enacted July 2, 1964). That legislation sheltered disadvantaged individuals and groups
from social and economic discrimination attributable to their race, color, religion, sex, or
national origin. The word “sex” was introduced at the last minute by a Virginia Senator
who was accused of attempting to derail the legislation (he denied it). The legislation
survived intact, and so laid the foundation for present-day identity politics. Figure 1
below reveals that the timing and intensity of feminist identity politics paralleled that of
the African-American civil rights movement, although the intensity of feminism has been
more consistent. Casual observation richly suggests that feminism’s derivative “Me Too”
campaign presently is a more effective shaming instrument than the contemporaneous
“Black Lives Matter” campaign.
The feminist movement differs from the civil rights movement in one other
significant respect. Unlike the historical grievance (slavery) and continuing shame
(racism) vectors that underlying entitlement-seeking by African-Americans, feminism’s
modern grievance and shame vectors are combined in a single issue: rape. Rape
dominates, by a wide margin, all other feminist shame vectors, including sexual
harassment, sexual discrimination, and income inequality. It dominates in part because
other substantive issues—e.g., education, property rights, voting rights, equal pay, and
reproductive rights—already have been addressed either by legislation or constitutional
interpretation.
Entitlement-seeking efforts by African-Americans and feminists are compared in
Figure 1 below. The Figure was generated online using the Google Books Ngram Viewer
(2018). The Figure depicts the relative frequencies with which the words rape and racism
appeared in American English books published during each year between 1800 and 2000.
These measures are called ngrams, a term of art in the argot of computational linguistics;
note that ngrams are unrelated to engrams, the latter being hypothetical changes in brain
states that explain the process of memory. Ngram data chronicle the intellectual
significance of contemporaneous thinking and events. They also reflect systematic
attempts by authors to sway public opinion and to rally political factions. The Russian
Revolutionary Maxim Gorky characterized books as being “the most important and most
powerful weapons in socialist culture” (qtd. in Scammell 2014, 41). Books became
weapons of choice for neo-Hobbesian warfare with the rise of identity politics and
entitlement-seeking.
 Figure 1

The rise of entitlement-seeking depicted in Figure 1 corresponds not only with

post-war prosperity growth, but also with the rise of anti-discrimination and affirmative
action legislation, regulations, and administrative actions that rode the tsunami of rising
prosperity during the 1960s and early 1970s. The zeitgeist of equal opportunity ultimately
came to be regarded as a guarantee of equal outcome. President Lyndon Johnson struck
this note in his 1965 Commencement Address at Howard University, a traditionally
Black college in Washington, DC. Johnson told a receptive audience that his
administration sought “not just equality as a right and a theory but equality as a fact and
equality as a result” (Johnson 1965). Subsequent political action generated what became
a continuing flood of redistributive entitlements, which left-leaning intellectuals
systematically mischaracterized as “rights.” Entitlements flowed to those social factions
with the most compelling grievances and shame vectors and the will to pursue aggressive
legal action. Progress was enabled by positive-freedom constitutional interpretations.
Many of the women who protested Justice Kavanaugh’s nomination did so for
reasons that implicitly transcended his judicial qualifications. The pragmatic cash value
of organized opposition was expected to flow from reducing the nominee to the
exemplary status of a dead crow hanging in the cornfield of feminist entitlement-seeking.

Conclusion

Commentators note that the Kavanaugh nomination and its aftermath diminished
public regard for the Supreme Court, which remains the only arm of government that
Americans still hold in relatively high regard. This consequence tends to be dismissed as
collateral damage, and yet the damage appears to have been inflicted knowingly rather
than being merely a regrettable result of American democracy having run amok. Justice
Kavanaugh’s confirmation is likely to mean that Supreme Court opinions over the next
several years will tend toward negative-freedom constitutional interpretations. This will
disadvantage Democrats, who require favorable constitutional interpretations in order to
enact their vision of “real” positive freedom. Without the Court’s backing, Democrats can
foresee several years of legislative wilderness ahead. Their best hope for political
relevance now rests with the possibility that Chief Justice John Roberts will become the
Court’s “swing vote,” assuming the mantle once worn by retired Associate Justice
Anthony Kennedy. Otherwise, a likely Democratic strategy over the near term entails
disparaging the Court’s legitimacy to the extent it checks Congress’ power to enact
positive-freedom legislation. Disparaging the character of one Justice is insufficient for
this purpose. Disparagement must engulf the Court’s conservative majority, and perhaps
the Court as a whole. If this strategy plays out, then the country will suffer in both the
short and long runs.

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