I am reasonably certain that most people at Bowdoin were disappointed at Brett Kavanaugh’s confirmation as an associate justice of the United States Supreme Court. Most were probably not only disappointed, but angry, at the role Senator Susan Collins (R-Maine) played in his confirmation.
Nonetheless, I urge you to both watch and read the speech she gave on the floor of the United States Senate. Not because it will change your mind, but because it is a model of how to make and win a policy argument. The lesson is not ideology, but in how to present one’s beliefs in a manner that is most likely to produce results.
First, Collins put the entire debate in context. She noted that the moment his name was announced interest groups were instantly ready with their condemnation statements. One news group even forgot to delete the XXX they had as a placeholder for the name of the nominee. The point was that the issue never was Kavanaugh; it was always about raw political power.
Second, Collins methodically went through the complaints about Kavanaugh’s judicial philosophy. Abortion rights. Gay rights. Health care. The rule of law and the President. On and on. In each case she did not tackle the complaint by counter-assertion but by citing chapter and verse from the opinions Kavanaugh has written. The case against Kavanaugh was built by labeling him an “extremist” and, as Collins noted, those charges were repeated time and again without supporting evidence until they became conventional wisdom. This process has become known in social psychology as The Big Lie.
Third, she turned to the behavior of Dr. Christine Blasey Ford’s supposed supporters to show how they effectively threw her under the bus (my words, not hers). Ford’s overriding wish was for confidentiality. Standard operating procedure in the case of the letter Ford sent would have been to forward it to the FBI as Kavanaugh’s background check was being conducted with strict instructions regarding confidentiality. As Ranking Member with oversight over the FBI, Senator Diane Feinstein’s wishes in this regard should have been heeded scrupulously. But her office did not follow standard procedure. They held onto the letter, saving it for the right moment.
That right moment came when someone on Feinstein’s staff leaked the letter to the Washington Post. This exposed Ford’s name to the public and by doing so virtually required that she would have to appear in public. Worse, Ford herself testified under oath that she was never informed either by her counsel (who had been recommended by Feinstein’s staff) or by Feinstein’s staff of Chairman Chuck Grassley’s offer to have all of her testimony done confidentially, behind closed doors. Grassley literally left it up to Ford how she wanted to proceed, but Ford was kept in the dark about that offer. Again, Collins’s purpose was to highlight that despite the assertions of Kavanaugh’s opponents, their behavior was not pro-women or pro-victim but power driven.
Fourth, she turned to Ford’s claims with which she expressed strong sympathy. But there was a lack of corroborating evidence. All of the people that Ford herself had named as attending the party denied that they were there. No one came forward to say that they offered Ford a ride home, despite the party being 10 miles from her house. There were lots of pieces in Ford’s testimony that did not make sense, even though she presented a compelling story that was easy to empathize with. The issue, in Collins’s argument, is one of threshold. She argued that all victims needed to be heard, but that did not mean that with an absence of corroborating evidence that a claim was enough. She also rejected the standard advanced by many Republicans that the standard should be “beyond a reasonable doubt.” That was appropriate for a criminal trial, but this was not one. Her standard was “more likely than not” and she concluded with extensive documentation why she came down on the side of “not.”
Had any of the Kavanaugh’s opponents presented such a comprehensive and fact-based analysis and done so in such a calm manner, he would never have been confirmed. But none did. Moreover, none even tried. This left an impression, rightly or wrongly, that they did not because they could not. This should be an important lesson to any student seeking to go into the policy making process.
Collins reminded those of us with a sense of history of another female Senator from Maine: Margaret Chase Smith. Like Collins, Smith was a liberal Republican. And like Collins she was well known as a very independent minded individual. In 1950 Smith gave a speech called “A Declaration of Conscience.” It called out Senator Joe McCarthy and his supporters for smearing individuals simply through accusation, without corroborating evidence. That speech is often marked as the beginning of the end for McCarthy. And given that this was the height of the Cold War, it took great courage to deliver it.
There is no question that today there are sexual predators, some in positions of power in politics, sports, academia and the entertainment industry. There is also no question that in 1950 there were Communists in similar positions of power. That issue was put to rest both by the Verona papers and by access to the Kremlin archives after the collapse of the Soviet Union. But, just because there were Communists around didn’t mean that everyone who was accused of being a Communist was one. And just because there are sexual predators around doesn’t mean that everyone who is accused of being one actually is. Judgments must be made on an individual-by-individual basis based on evidence.
Smith and Collins both expressed one other important point: the need for civility. Washington has been under siege during this confirmation battle. Mobs of people formed outside Senators’ houses, hounded them out of restaurants and accosted them in the halls of the Senate office buildings. The volume was loud and the attempts at physical intimidation were transparent. Collins critiqued this tactic.
But her critique is also applicable to the question of how to make and win an argument. Loud volume, chanting, name-calling and physical intimidation are merely suggestive of a lack of rational argument. If rational argument existed, why the emotion? Of course, intimidation tactics have succeeded at points in world history in shutting down one’s opponents. But whenever that happened, the end game for society was invariably tragic. In this case, the mob tactics backfired, unifying the Republican Conference to unite against the intimidation, for as Benjamin Franklin said, if we don’t hang together we most assuredly will all hang separately.
I commend Collins as an example not because of what side she was on but for very practical reasons: she exemplified how arguments should be presented. Not loudly or physically and not emotionally or by deception. But, by comprehensive and logical reasoning backed up by facts. That is a lesson for individuals of any political persuasion.
Larry Lindsey is a member of the class of 1976 and an honorary member of the class of 1993.