Some Pitfalls to Avoid on Thursday in the Senate

Two notions from contemporary philosophy illustrate what not to do.

Posted Sep 26, 2018

In case you’ve been living under a rock or in a cave for the past few days, it may be useful for me to tell you that there will be testimony in front of the Senate Judiciary Committee tomorrow. Important testimony. People will be speaking about the character of a man who is under serious consideration for a lifetime appointment to the US Supreme Court.  One of these people will be the nominee himself, Judge Brett Kavanaugh. The other will be Dr. Christine Blasey Ford, who has accused Kavanaugh of covering her mouth to silence her screams as he tried to force himself on her at a party when they were in high school.

The stakes could not be higher, really. And in this case, there is no separating current events from their larger political context. Kavanaugh is being nominated to the post of Supreme Court Justice, in part, at least, because he is a sure bet to dismantle, undermine, or downright overturn Roe v. Wade. Many of those supporting him are doing so because they do not think that women should have access to safe abortions and the right to reproductive freedom. Kavanaugh is something of an avatar for the conviction that women should not have full control over their own bodies. The allegation that he tried to force himself on a fifteen-year-old (to which we can now add the allegation that he exposed himself to and shoved his penis in the face of a female student during their freshman year in college and the allegation that he participated in gang rapes while in high school) is something of a metaphor for his nomination. To many, Brett Kavanaugh is a stand-in for patriarchy.

It is against this backdrop that senators will hear from Dr. Blasey Ford and Judge Kavanaugh on Thursday. And as with any high stakes affair, there are some potential pitfalls it will be important to avoid. Let’s consider two of them.

Miranda Fricker/OUP
Source: Miranda Fricker/OUP

The first thing to avoid is “testimonial injustice.” As Miranda Fricker puts it, testimonial injustice basically involves “prejudice on the hearer’s part caus[ing] him to give the speaker less credibility than he would otherwise have given.” It is to “undermine, insult, or otherwise withhold proper respect for the speaker qua subject of knowledge.” It’s wrong to insist that someone doesn’t know what she’s talking about simply because you don’t like who she is or what she’s saying or what she represents. Now, I’m not saying that this is what’s going to happen to Dr. Blasey Ford on Thursday. It’s possible that her testimony will be taken seriously by all involved, that she will be believed. But it certainly looks like the conditions are ripe for testimonial injustice. The table has been set by the very context in which she is set to testify. 

Judging from past comments, Dr. Blasey Ford is getting ready to tell senators that Brett Kavanaugh tried to rape her. This is unpleasant business, and many people may be inclined to dismiss her testimony because they don’t want to hear it or don’t want to hear from her. Some will say that it’s a political stunt, a con-job aimed at scuttling the Kavanaugh nomination and preserving Roe. Some have already said as much. But it would be wrong to dismiss Dr. Blasey Ford and what she has to say without a fair hearing. Question her, sure. Ask her what she remembers about the details of that night; ask her about how it’s impacted her life; ask her about her discussions with friends at the time, with her therapist long after. Ask her questions, but take her seriously. Investigate further if the details don't ring true. But if her testimony simply presents uncomfortable truths or challenges prior convictions, so be it. There is real danger of injustice, compounding injustice, here.

Kate Manne/OUP
Source: Kate Manne/OUP

There is a second trap worth keeping in mind. Kate Manne has coined the term “himpathy” to refer to “the flow of sympathy away from female victims toward their male victimizers.” He’s done something wrong to her, which makes him the perpetrator and her the victim, and yet we feel for him (not her). We’re worried about his future career prospects (not hers), how this may derail his life (not hers), how awful this must be for him (not her). Himpathy distorts our understanding of and reaction to events by removing our sympathy from the comparatively less privileged victim to the more privileged perpetrator.

Senators and citizens who himpathize with Judge Kavanaugh will focus on how Dr. Blasey Ford’s testimony will impact him. They’ll voice concern about his bright future being derailed; they’ll worry about the toll this is taking on him; and they’ll be concerned that something he did when he was 17 is holding up his just desserts, keeping him from a seat on the Supreme Court. But, as Manne points out, this is distorting. It turns our attention from its proper focus and may even serve to further the harm done to a victim. There is a strong moral case for avoiding himpathy.

These two phenomena, testimonial injustice and himpathy, can be mutually reinforcing. One may discount the credibility of a woman alleging sexual assault because one sympathizes with her alleged victimizer; or one may sympathize with him because one discounts the credibility of his accuser. This makes it doubly important that senators, the media, and the public alike consciously work to avoid both testimonial injustice and himpathy on Thursday and beyond. An honest interrogation of Judge Kavanaugh’s character and determination of his fitness for the privilege of a seat on the Supreme Court require a just process, as free of bias as is humanly possible. They require that we approach Dr. Blasey Ford's testimony with the openness to hear what she has to say. These aims, justice and fairness, should be both bipartisan and beyond reproach. Let’s hope Thursdays testimony is handled with the care and diligence it deserves.

Update: Soon after I published this post, Kate Manne published this op-ed. And Donald Trump gave this press conference. Both are relevant.

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