Kavanaugh at 17 and Kavanaugh at 53: Questions of Psychological Connection

Even if you believe accounts of Judge Brett Kavanaugh’s bad behavior as a high school or college student (some coming in his own handwriting as well as his high school yearbook page), some of his supporters argue that this evidence should be discounted, ignored, or forgiven because the incidents happened long ago. The philosophical idea of psychological connection associated with philosophers such as the late Derek Parfit lends credence to this view. Judge Kavanaugh at age 53, the argument goes, is a much different person than Brett Kavanaugh as a 17-year-old scholar-athlete. A lesser standard of moral responsibility should apply.

           According to Parfit in his book Reasons and Persons, there is reason to doubt that we are the same person today as we were many years ago. Our physical bodies change completely at the molecular level periodically. We change our behavioral habits. (We may stop smoking or drinking, for example.) We constantly lose and gain memories. We commit to life projects and relationships – jobs, family, social affiliations – which in turn change and define us differently to ourselves and to others about “who we are.” The accumulation of new knowledge, experiences, and attitudes inscribe our internal lives as we change. As a society, we tend also to forgive people accused of bad behavior when they were young, especially if they give us a good reason to think “they have changed,” matured, or been rehabilitated. 

           For Derek Parfit and others advancing this argument, the “degrees of psychological connectedness” have implications for criminal and moral responsibility. Parfit gives the following example (Reasons and Persons, p. 325):

Suppose that, between some convict now, and himself when he committed the crime, there are only weak psychological connections. This will usually be true when someone is convicted many years after committing his crime. But it might be true when there is some great discontinuity, such as the conversion of a pleasure-seeking Italian youth into St. Francis.

Parfit then concludes: “When some convict is now less closely connected with himself at the time of his crime, he deserve less punishment. If the connections are very weak, he deserves none” (id., p. 326).

           A version of this argument is being made on behalf of Judge Kavanaugh. At a political rally in Mississippi yesterday, for example, President Trump praised Kavanaugh and argued that we should discount events that occurred “36 years ago.” For “the last 35 years,” said Trump, Kavanaugh has been a “highly respected person.” The implication is that even if Kavanaugh behaved very badly many years ago, he is a different person now. 

           It is true that we become different – maybe sometimes entirely different – “persons” over time as we age and (maybe) mature. However, this argument does not work to absolve Kavanaugh of responsibility for his actions as a much younger man for several reasons.

           First, if there is truth in the allegations of Kavanaugh’s excessive drinking and aggressive behavior as a younger man (perhaps including sexual assaults), we cannot forgive Kavanaugh without some indication that he has in fact changed and feels remorse. He should say – as he has not – that perhaps he had an excessive drinking problem and even blacked out or passed out on occasion when he was younger. Maybe he doesn’t have a memory of any sexual assault on any woman: Christine Blasey Ford, Deborah Ramirez, or anyone else. He might ask to be believed and forgiven. But Kavanaugh has admitted only to some vague “regrets” and “cringe”-worthy memories without any detailed elaboration. He has not signaled true or authentic grappling with the issues of a changed person with respect to these issues. He has shown no contrition. He is no St. Francis or Augustine.

           In addition, notice that those who argue that some of Kavanaugh’s bad behaviors should be discounted or forgiven still want to count his earlier achievements to his credit: a top-ranking academic performance in high school – and then college at Yale and, as Kavanaugh repeatedly boasted in his Senate confirmation testimony, its “number one” law school. But one cannot have it both ways: allowing for psychological connection to credit Kavanaugh for early achievements and then discounting his bad behavior within the same time frame. If we recognize long-term psychological connection, then both good and bad evidence of character and qualifications must count. Mounting evidence of immoderate drinking, aggressive behavior (including a bar fight), and credible claims of sexual assault must be taken into account in counterpoise to his academic achievements and professional career.

           Lastly, we should understand that what lawyer’s call the burden of proof is very much different for Supreme Court confirmations than in a criminal trial – or a decision to grant parole to someone who has shown rehabilitation after time in prison. The question regarding Judge Kavanaugh is not whether he committed sexual assault “beyond a reasonable doubt” and should therefore be criminally punished for it. He is not on trial. The question is also not whether he may be disposed now to commit sexual assault while drunk – or to conspire with others in this kind of a crime. The question is not whether Kavanaugh may currently have a problem with sexual misbehavior. The question instead is the following: If there is reason to believe that Kavanaugh as a 17-year old scholar-athlete in high school (or a slightly older student in college) committed one or more sexual assaults against women as a younger man, then we should worry about his character when acting as a Supreme Court Justice at age 53 and beyond. One obvious concern is that, if confirmed, a Justice Kavanaugh would not treat women and issues related to women fairly given the credible possibility that he committed or attempted to commit sexual assault against women in the past. (His relative lack of concern in a case involving a pregnant 17-year-old unaccompanied immigrant seeking an abortion offers a possible example.) Another very serious concern is that, if we believe Ford, Ramirez, and others testifying about his past in various respects, then Kavanaugh has told a string of falsehoods now – in the present – in an obvious, emotional, and unconvincing attempt to cover up the truth of his previous behavior. Careful analysis of his testimony shows rather conclusively that Kavanaugh is indeed lying about matters both large (such as some of work in the Bush Administration) and small (some of his activities in high school and college).

           For these reasons, the argument that a psychological disconnection between the scholar-athlete Kavanaugh at 17 and Judge Kavanaugh at 53 should absolve the current "person" of responsibility must fail. If there is good reason to believe one or more of the women stepping forward in public to tell their stories, the Senators should vote “no.” They should also vote “no” not only because of the significant wrongs that Kavanaugh committed as a young man but also because he has expressed no contrition or remorse for these acts and is today falsely trying to cover up the truth of his past behavior. As one of his former Yale classmates has said, “You can’t lie your way onto the Supreme Court. . . .  It’s about the integrity of that institution.”

           Perhaps the current FBI investigation, if not improperly impeded, will generate a better estimate of the probabilities of who is telling the truth about events that may or may not have occurred 36 years ago. Even if the investigation finds evidence that may tend to exonerate Kavanaugh at 17, however, the fact that Kavanaugh at 53 has chosen to lie about many aspects of his recent and distant past, including such seemingly innocuous facts such as mean-spirited high school yearbook entries that he wrote himself, disqualifies him. As with many crimes, it is the botched cover up rather than the long ago misdeeds that should seal the fate of this confirmation vote. 

           Judge Kavanaugh has misled Senators about aspects his past – and he has also treated Senators and the constitutional process of confirmation with partisan contempt (which has attracted the condemnation of more than a thousand law professors). Kavanaugh's angry and tearful reaction to the accusations more likely confirms the truth of these accusations rather than casting doubt on them. If he were innocent, we would expect a measured and judicious denial and, perhaps, a reasonable explanation (and not a conspiracy theory) of why people from his past would remember him to have drunk excessively and maybe committed sexual transgressions. Instead, Kavanaugh’s long list of evasions and lies make an assessment of the psychological connection unnecessary. He has demonstrated in the present that whatever Kavanaugh at 17 may have done, Kavanaugh at 53 is not fit or qualified to serve on the United States Supreme Court.

[I thank my colleague Amy Sepinwall for assistance on properly understanding some of the philosophical concepts employed here, but she bears no responsibility for the opinions or positions expressed in this post.]