We have all heard about confirmation bias, the natural but generally unhelpful tendency that we all have that leads us to interpret new evidence with respect to any topic as confirmation of one’s existing beliefs or theories. Too often these days, confirmation bias is the principal driver of an increasingly polarized political culture.
The animus of confirmation bias undoubtedly had much to do with Brett Kavanaugh finding himself before the US Senate Judiciary Committee addressing events that had allegedly occurred 36 years ago when he was a seventeen-year-old high school student. With very few exceptions, those that believed Dr. Ford’s account of the events of that night so long ago were those who most feared the implications for the advancement of progressive issues in the context of a Supreme Court that included then Judge Kavanaugh. Those that were most willing to accept his denial of Dr. Ford’s account were those most buoyed by the prospect of a court that was more restrictive in their interpretation of the Constitution. In the absence of corroboration of the facts of the allegation, confirmation bias was really all that prevailed.
In applying their confirmation bias, commentators on both sides found much in the manner of Dr. Ford and Judge Kavanaugh’s testimony to buttress their support of one or to dismiss the other. Dr. Ford was too doe-eyed and vague; Judge Kavanaugh was too aggressive and indignant. But wouldn’t one be expected to be a little uncertain as to detail recounting events from so long ago, even, or perhaps especially, if they had been so traumatic? And in the case of Judge Kavanaugh, if he believed the allegations to be wholly untrue as he emphatically stated, the vehement tone of his denial of those allegations was understandable, and not without precedent.
In 1991, then Federal Court Judge Clarence Thomas was faced with allegations of sexual harassment by former aide Anita Hill during the confirmation proceedings for his own ultimately successful appointment to the Supreme Court. The facts in dispute between Justice Thomas and his accuser were similarly uncorroborated but related to interactions far more recent and related to Justice Thomas’ behaviour as an adult in a professional context. Justice Thomas was no less indignant than Justice Kavanaugh in his denial of the accusation, likening it to “a high-tech lynching” and clearly tying it to underlying racist opposition to his elevation to the Supreme Court.
However, what distinguishes Justice Thomas’ emotional retort to the accusation and Justice Kavanaugh’s equally intemperate utterances to his accusers lies in the substance of what each candidate alleged. Racism, Justice Thomas argued, was what underlay the effort to discredit him. For Justice Kavanaugh, it was “a political hit” motivated by “pent-up anger over the results of the 2016 election” and “revenge on behalf of the Clintons” and funded by “left-wing opposition groups”.
Interestingly, one could argue that Justice Kavanaugh’s analysis is likely more accurate not only in the context of his situation, but also that of Justice Thomas 27 years earlier. Racism, no doubt, was a factor of some people’s willingness to weigh in favour of Anita Hill’s recollection of her interactions with Justice Thomas, but it is certain that far more were swayed by their political affiliation. After all, in both cases, the final Senate vote count for confirmation fell almost entirely along party lines.
But Justice Thomas did not aim his angry rebuke of his opponents at political partisanship, although it is highly unlikely that the thought didn’t occur to him. Far more likely is that he recognized that if his candidacy was to be confirmed, he could not compromise his impartiality as a jurist in the highest court in the land. Little harm can be done to the concept of judicial impartiality if racists fear that they and their causes will face a biased adjudicator should they seek redress in the courts. But what of the Clintons, their friends and allies, or Democrats in general, appearing before a Supreme Court that includes Justice Kavanaugh on its panel?
Candidates nominated for elevation to the Supreme Court in both the US and Canada will inevitably reflect the ideological bent of the government that has advanced their nomination. It is always incumbent on those nominees to convince those confirming their nomination and the country itself that those inclinations are rooted in reason and knowledge and not pure partisanship. Whatever his failings, then Judge Clarence Thomas understood this requirement. Justice Kavanaugh did not. His response to confirmation bias was confirmation of bias, and for this reason alone, his candidacy should have failed.
