This post isn’t primarily about Kavanaugh and Ford, although obviously that’s the jumping-off spot. It’s about the larger issues that the controversy reflects, which have to do with the nature of justice.
Robert Frost (yes, that Robert Frost) had this to say on the subject (from a talk he gave at Bread Loaf in 1960):
Naturally there’s a constant natural conflict between justice and mercy. The big joke is that somebody on earth ought to balance them up. Probably God does. It could be assumed. That is the most Godlike thing: to balance them—mercy for justice or a just mercy. But there’s something there that’s almost too hard for a mortal man to get.
When I was a child I was very taken with these questions. That may sound unusual, but I don’t really think it is. Children (many children, at least) naturally want the world to be a just place. They want the guilty punished and the innocent rewarded. They want it to be easy to tell the difference. And they don’t want to wait decades to see it happen.
In fact, many children are so into the idea of justice that if bad things happen to them they imagine they must indeed be bad people. But that’s another topic for another time.
Justice and mercy are not usually easily balanced for most people, even children. Most people tend to fall either into what I would call the prosecutor mentality, bent on punishing the perps, or the defense attorney mentality, bent on making sure the accused has the benefit of the doubt and is not railroaded into jail.
I was much more the victim in my life as a child. I was small, young, and a girl, surrounded by adults who were not necessarily all that kind and by older boys who were intent on teasing me and even hitting me quite often, and I was not strong enough to defend myself successfully although I certainly tried on a daily basis. Now, that’s not the worst thing a child ever faced, but it wasn’t an easy situation either.
Based on that history, one might think I would have grown up with the prosecutor mentality. But for some reason I grew up with the defense attorney mentality. I had an absolute horror of false accusations. In fact, one of my early heroes was Clarence Darrow (I wrote about him in this lengthy post), and when I went off to law school years later it was with the idea of becoming a defense attorney. Although Criminal Law and Evidence were indeed two of my favorite courses, I realized early on that I didn’t have the temperament (read: cojones) to become a defense attorney or even a trial attorney of any sort.
But I’ve never lost my feeling of outrage when people rush to judgment on the basis of flimsy evidence. I think I am quite consistent as well, not just favoring those whose politics match mine but applying the same rules to all.
The Kavanaugh hearings have been a terrible manifestation and demonstration of the fact that so many people are only too happy to rush to attack someone whose politics they don’t like and to defend a person whose politics they do like, the latter mouthing pious and yet pernicious stupidities like “believe the women” or “believe the victims.” That way lies the end of our system of justice, which though flawed is one of the best, if not the best, ever developed by humankind.
In that same 1960 speech, Frost also said this:
The Democratic Party and the Republican Party are having quite a time about it right now. They both want to sound merciful enough, and they both want to sound just enough. They’re going to outdo each other in getting that right. The nice way is to choose the Democrats for being too merciful. Somebody calculated that the mercies that they promised the world were going to cost us about fifty billion dollars a year—if they did all they had in their program. The Republicans have got to sort of match that somewhere if they don’t get broke.
Frost correctly predicted that, in the effort to seem “nice” and counter the Democrats’ seeming niceness, the GOP would move to the left and end its own fiscal austerity. That’s indeed what happened.
Frost also says that both parties were attempting to sound both merciful and just. That was probably true back then, but it’s not true anymore—or rather, it’s my observation that the Democrats have completely abandoned the “mercy” part of the equation where their political opponents are concerned. Or you might say that they’ve redefined “justice” and “mercy” as being whatever they see as benefiting one of their protected classes/groups of people: women, minorities, everyone but white men.
Needless to say, that’s not justice. But it’s the new kind of “justice”—so-called “social justice.” See, they’ve even co-opted the word “justice.”
[Neo is a writer with degrees in law and family therapy, who blogs at the new neo.]
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