One of most common statements about Brett Kavanaugh’s alleged sexual assault of Christine Blasey Ford focuses on his age at the time, just 17.  Megan McCardle, for example, in a slightly more sophisticated phrasing of this, tweeted, “I wouldn’t disqualify anyone from higher office because of anything they had done as a minor.”

But it’s not just conservatives who have expressed concern over derailing Kavanaugh’s nomination over something that happened when he was not yet a legal adult. For example, Rosa Brooks,  whoa among other things, is a Fellow at the New American Foundation, tweeted, “I oppose Kavanaugh’s nomination, think senators should vote no based on his judicial record, but am uncomfortable with asserting that his behavior as a teen tells us anything about his ‘character’ now.”^⁠

Under different circumstances, I would agree with this concern. Read Bryan Stevenson’s description of a 14-year-old charged with murder, and weep for how the criminal justice system treated Charlie.^⁠

We understand that at 17, human brains haven’t yet been fully formed. The criminal justice system shouldn’t treat adolescents as adults; minors shouldn’t be put in jail or prison with adults. They shouldn’t be sentenced to death or even life without parole. And they shouldn’t be placed in solitary confinement. 

But Brett Kavanaugh will not go to prison for his alleged actions 36 years ago. No one will fire him. No one will punish him. 

Instead, he might not get a promotion. He might not become one of the nine most powerful judges in the United States. And I’m okay with that.

Kavanaugh’s actions since 1982 matter too

But I’m saying that not just because of what happened in 1982, but because of Kavanaugh’s behavior today. He fails to recognize that his recollection of how he behaved in high school may not be accurate and the things he did may have actually hurt others.

In his most recent statements about his behavior in high school, Kavanaugh acknowledged that he drank beer, sometimes “too many” and did things that now make him “cringe.”^⁠ But such vague generalities fail to consider the people he may have done those cringe-worthy things to.

Imagine the counterfactual — rather than issuing a categorical denial, Kavanaugh acknowledged that he may have done this, but because of his drinking at the time, he simply can’t recall. Like his friend Mark Judge wrote of his own time in high school, heavy drinking can lead to blackouts¹Those fortunate not to have either been a heavy drinker or having someone close to them be one may misunderstand what a blackout is. It is not the same as passing out. A blackout is a loss of memory. People simply don’t remember the events during the period of the blackout. They may still be functioning and engaging in a whole range of behavior, some of which may be quite dangerous (e.g., driving, having unprotected sex, or committing crimes). such that Kavanaugh might not even remember his actions. 

Let’s carry the counterfactual further and imagine that he recognized the differences between adolescent behavior and that of adults and that he’ll take that into consideration when ruling on cases.  

And we know that how the criminal justice system (and in society more broadly) treats people depends considerably on one’s (or their parents’) wealth and the color of their skin. So, imagine a Brett Kavanaugh, who never seemed to get in trouble for underaged drinking or other behavior that makes one “cringe,” recognized how the context of his life made that possible, and how others aren’t so lucky. 

But all the evidence we have points in the opposite direction.

Because he served on Court of Appeals for the D.C. Circuit, he hasn’t decided a lot of criminal justice cases. However, everything we’ve seen in his record suggests that he will take a harsh view of minors (and adults) caught in the legal system.

Kavanaugh certainly didn’t treat with care and respect the seventeen-year-old immigrant  in the Garza case, who he tried to prevent from having a legal abortion

He’s called former Chief Justice William Rehnquist his “judicial hero.”^⁠ This “hero” argued that juveniles can be subject to the death penalty and that racial disparities in the criminal justice system are okay.^⁠

Going back to his time working with Ken Starr or when in the George W. Bush administration, we find other examples of his willingness to treat people harshly. While working on the Starr Report, he promoted the Vince Foster conspiracy theory without apparent consideration for Foster’s family, even though the official ruling, based on overwhelming evidence, concluded that Foster committed suicide^⁠. 

While in the Bush administration, he also helped bolster the case for torture. And once he was on the bench, he ruled in ways that prevent judicial oversight of torture and of Guantanamo.^⁠

Kavanaugh’s denial of even the possibility that the assault took place, his likely approach to criminal justice cases, and his inability to acknowledge others beyond his own experience lead to the clear conclusion that he does not deserve this promotion. So it’s the way he behaves today, not one night²or 4, as of when I wrote this 36 years ago that make him unworthy of the Supreme Court.