The Master's Tools Will Never Dismantle the Master's House: Kavanaugh's Confirmation Hearing and the Perils of Progressive Punitivism

Abstract

On October 3, 2018, more than 2,400 law professors signed a letter addressed to the U.S. Senate, titled The Senate Should Not Confirm Kavanaugh. In the letter, the signatories argued that Brett Kavanaugh’s demeanor and tone during his confirmation hearing demonstrated a lack of judicial temperament and evinced his unfitness for high judicial office.

Like many of my colleagues, I was deeply discomfited by the hearings, which reduced fact-finding to a partisan context and echoed the cultural acceptability of disrespect of women’s bodily autonomy — an obviously infuriating state of affairs. And yet, the reaction to the hearings by Kavanaugh’s opponents left me wondering: What were we hoping to accomplish by mocking and reviling this man? By expecting him to apologize or take responsibility and then trumpeting the inadequacy of his response? Was this hearing, and our polarized reactions to it, making inroads for gender equality? Would this become a conversation starter, one that, as my progressive and feminist colleagues argued, would “spark a reckoning” with the system?

This essay argues that the strong sentiments against Kavanaugh, though understandable and keenly felt, might have been deployed in the wrong direction, and an example of a broader phenomenon that I refer to as progressive punitivism. Progressive punitivism is the reliance on weapons traditionally wielded by the conservative right — shaming, stigmatization, denial of rehabilitation, punitive approaches, and identity-driven divisions — in the service of social justice ideals. Progressive punitivism operates within the criminal justice system, in the context of holding violent police officers, hate criminals, sexual abusers, and lenient judges accountable for their actions, but it also operates throughout the realm of social media and public opinion, and these two realms often cross paths in complex ways.

The marshaling of much progressive energy in the direction of punishing powerful individuals for their misdeeds should be viewed with ambivalence. On one hand, the desire for accountability on the part of the powerful and socially advantaged is understandable; on the other, I am deeply skeptical as to the potential of progressive punitivism to effectuate change and bring about mutual understanding, let alone a reckoning. My concern is that the recurrence to punitive methods sows divisiveness and rancor, discredits efforts at rapprochement or apology at the outset and thus discourages them, and directs the movement’s energy in poisonous, and ultimately futile, directions. In short, I think that the effort to dismantle the master’s house of misogyny and racial domination with the master’s tools — a recurrence to punitivism, excoriation, and shaming — is doomed to fail.

This essay proceeds in four parts. In Part I I problematize the idea of the accused’s demeanor as evidence of guilt, remorse, or entitlement, arguing that we tend to overestimate our ability to deduce internal states of mind from people’s behavior and expressions. Part II assesses the potential (or lack thereof) of public performances of reckoning to produce a valuable expression of remorse, discussing the value of contingent apologies. Part III expands the framework to examine the way our politically fractured field responds to partisan efforts to excoriate culprits, arguing that “starting a national conversation” on the basis of excoriation and stigmatization is not a realistic expectation. In Part IV I situate the Kavanaugh incident in the overall context of progressive punitivism, offering an initial and generative sketch of the ideology and its mixed effects. The conclusion offers a modest proposal for a better way to start a bipartisan conversation about gender-based inequities and iniquities, as well as a future agenda for research on progressive punitivism in its other manifestations.