If we weren’t in the middle of a giant political war over Brett Kavanaugh and the future of the Supreme Court, we might be able to have an interesting conversation about the two things that have created so much uncertainty in this fight: the unreliability of memory and what does, and does not, go on your permanent record.
We can’t have that conversation, of course. Frankly, in 2018, we can’t have any nice things. But just for a moment, let’s pretend that Brett Kavanaugh and Christine Blasey Ford and Deborah Ramirez don’t exist and try to discuss the topics without any hostility. I’d like to start by telling you a story.
From the ages of 9 to 16, basketball was the most important thing in my life. My parents had split up and I had a hoop in my driveway and basketball was what I did, by myself, for hours on end. I did this for four years without ever being on a team, like some sort of emo, suburban Jimmy Chitwood. And I was a pretty decent ballplayer. Or so I thought.
In seventh grade I left my little Quaker school—number of organized sports teams: precisely zero—and enrolled in the local public school, where I promptly joined the basketball team and discovered how not very decent I was. I can tell you the number of minutes I logged that first season because it was also, precisely, zero. We didn’t lose a game, and we usually won by more than 20 points. I sat on the bench for every single second of it.
Eighth grade was only slightly better. But I worked harder. The next year my freshman team was downright lethal. (I was the only kid on the team who couldn’t dunk and three years later, after I’d moved and changed schools, this collection of guys would go on to win the state tournament.) And I had gotten so good that I was the starting power forward. So good that when we opened the season at Audubon High, on the very first play our point guard fed the ball to me on the left block. I faked baseline, spun to my left, and sunk the short jumper.
It is not possible to express how important that moment was for me. I had gone from being the new kid from another school who never played to being the starter on who rang up the first points of the season. That sequence was immediately seared into my memory and became part of my personal mythology.
I would be lying if I said that it wasn’t still part of the story I tell myself, about myself, today.
Except for one thing: I don’t know how much of it is true. I know I was the starter, but it’s possible I was playing center, not power forward, that day. I think I got the ball on the left block, but it’s possible that it was the right low-post. I think I faked baseline, but maybe I faked high-side. The truth is, I don’t even know for sure if we were playing Audubon, or Collingswood, or Haddon Heights.
All of which is to say that there’s a reasonable degree of ambiguity about one of the five or six most important moments of my life. So we should not unquestioningly accept either allegations (or denials) from people when it comes to decades-old events. Because these people could be completely honorable and well-intentioned—and still be presenting an account which isn’t perfectly accurate.
We can’t hold onto perfect memories of things that happened 30 years ago. But here’s the thing: I’m not even sure we should try to.
I said we were going to pretend that this conversation wasn’t about Brett Kavanaugh, but let me cheat for a minute and ask you a question: If Kavanaugh had been arrested for public intoxication as a minor, would we say that this disqualified him from sitting on the Supreme Court today? What if he was arrested for marijuana possession? Or driving drunk?
Now keep your answers in mind and ask yourself if they’d be different if Kavanaugh had been convicted of those crimes not as a minor, but 10 years ago.
There’s no right or wrong answer to this—I’m not setting a trap. But I am trying to illustrate that we assign different moral weights to different wrong-doings and that we think about juvenile behavior differently than we think about adult behavior.
And the lines we draw in these matters have very little consistency.
You can try to corral your intuitions here, but it’s like squeezing jello. Is marijuana possession just a victimless crime? Let’s ask the the small-time dealer who gets locked up and has his future ruined because of someone else’s “harmless” habit. Maybe you say that some crimes are more “serious” because people get hurt. Well, the only difference between a DUI and vehicular manslaughter is luck.
Other line-drawing is also hard. Consider the difference between assault and sexual assault. Let’s pretend that your perfect Supreme Court candidate had once been arrested for assault because he had too much to drink while tailgating at Big State and got into a fistfight. Would that be easier to overlook than if he’d once been arrested because he had too many drinks at a frat party and groped a woman? I bet it would be. But it’s awfully difficult to explain why, exactly, that is.
And matters only get more confusing when you add the offender’s age to the equation. Do we want to live in a world where kids really do have a permanent record? This isn’t a rhetorical question. Maybe we don’t. But maybe we do.
The whole point of the juvenile classification is that we decided, as a society, that it was not wise to hold children and adolescents to the same standards of moral culpability as adults. We decided that kids can’t be expected to know better and aren’t fully capable of understanding the consequences of their actions.
Again, it’s not easy. It would seem to be perfectly reasonable to argue that someone who committed premeditated murder, or rape, as a juvenile shouldn’t be president of a two-bit college, let alone sit on the high court. But after that, the zones get very gray, very fast. And at some point—if you’re interested in more than playing politics—you have to have a serious discussion about exactly how much culpability you’re willing to assign to minors.
And if we want to re-write those norms, then we ought to do so intentionally and in a way that everyone can understand—instead of making it up on the fly based on whether or not we like the politics of the person currently nominated for the Supreme Court.
Because no matter what you believe about Brett Kavanaugh, or Christine Blasey Ford, or Deborah Ramirez, at this point, your belief is more about you than it is any of them. Which is why, no matter which side you’re on, you ought to have some sympathy for the other.
