Jordan Peterson has broken the internet (again) with his tweet that, “If confirmed, Kavanaugh should step down.”
Many Peterson-favoring commentators (of whom I am one) have expressed shock and disappointment at Peterson’s suggestion. And it must be said that it was only offered as a suggestion, as indicated by Peterson’s subsequent tweet, “I’m not certain it’s the right move. It’s very complex.”
Peterson’s idea has elicited some fervent, even shocked, objections, of which the most important two seem to be the following:
- Kavanaugh’s stepping down would hand a practical and political victory to those who wanted Kavanaugh not to be nominated on account of uncorroborated accusations. It, therefore, rewards political bullying.
- Kavanaugh’s stepping down would undermine the principle of “innocent until proven guilty” because it punishes a man without proof of guilt. Accordingly, those who don’t care about that principle will be rewarded.
Resignation for the Right Reasons
Now, Dr. Peterson can certainly speak for himself better than I can speak for him. But I think there may be some brilliance in his suggestion that many people are missing. And if I’m right, that is because they’re approaching his idea on “the wrong level of analysis,” as Dr. Peterson might himself say.
Many objectors to Peterson have sloppily said that Peterson was “calling for” Kavanaugh to step down if he is confirmed as if he were saying that Kavanaugh has some moral obligation to do so. I believe Peterson’s intended meaning was subtly, but crucially different. He means, I think, that it would be favorable if Kavanaugh of his own accord chose to step down for reasons even higher than the admittedly good reasons for which he should stay.
Only action—including personal sacrifice—can ultimately instantiate higher principles, and motivate others to do the same.
It’s not that staying in his position as a justice on the Supreme Court would be wrong, or that stepping down from the Court would be a powerful, moral act per se. Rather, its power would come from making an unforced choice to sacrifice his position for the higher purpose of eliciting action against a greater harm, and in defense of a deeper principle than any with which either side of the debate over his nomination have yet acted upon.
It would be a choice to say that, while his work on the Supreme Court would be good for America and he would be perfectly entitled to do that work, there is a greater good that the country needs—urgently. The choice to give up the one for the other, and to pay a personal price to do so, would demonstrate, and therefore remind us, that principles are not served by what we say or what we believe. Rather, only action—including, when necessary, personal sacrifice—can ultimately instantiate higher principles, and motivate others to do the same.
Like a hunger strike, the act of stepping down would do no good per se, but it could do a lot of good if the reason for it were publicly declared and morally right.
Making a Society-Changing Difference
A majority of Americans are, I believe, tired of what our polity has become.
If we wish to see partisanship defeated and to change how we do politics and make judicial decisions, someone has to act first to make a politically difficult decision in favor of what matters more than politics.
Someone has to be the first to rise above.
That’s not a moral point. It’s not a political point. It’s a logical one: political partisanship cannot be defeated by actions that are controlled by the preferences of political partisans.
So if were Kavanaugh to follow Peterson’s suggestion, I’d like to suggest he do it like this:
“I am pleased to have been confirmed to the Supreme Court. I am vindicated. I am innocent.
“As an innocent man, I have no reason to be equivocal in accepting this honor and duty. And I accept it with a clear conscience and a seriousness of purpose.
“I accept it because no judicial nomination should become a circus like the one that was convened against me. But even more importantly, it should never become a politicized circus, let alone a partisan one.
“My life and that of my accuser have both been turned upside down by thousands of people who have been politically motivated to stop at nothing in order to get an outcome that they sought for ideological reasons. Many of them dressed up their concerns in principles.
“On one side were the principles of hearing and trusting our fellow human beings who believe they have been harmed and wish to save others from that harm; and of respecting and caring for victims of assault. These are principles I strongly support.
“On the other side were the principles of innocence until proven guilty; and respecting and caring for victims of false accusation. These, too, are principles I strongly support.
“I won this confirmation fairly and were I to sit on the Supreme Court, the rest of my life’s work would be to use all of my legal knowledge and judicial prudence to do the best by this nation and its Constitution.
“But what, then, would change?
“I suspect that the next nomination to the Court, whenever that might be, would likely look much like mine did, and perhaps even worse. And I suspect that until then, our nation’s politics would continue to descend into this partisan, self-righteous nightmare.
“Because no one who has been responsible for what we have just witnessed in America would have been called to account.
“Because no leader of our nation would have stood up against personal insult and destruction, which both Dr. Ford and myself have suffered, in any material way that fundamentally changes how we are now conducting politics and defending, or failing to defend, justice.
“Because—despite many of the things that have been said about what our country has just witnessed, and has been frankly witnessing for years—no one would have done anything to stop this runaway train of ideology that is so self-righteous that its drivers think nothing of insulting, let alone destroying, families like mine and Dr. Ford’s. And not just ours. Thousands of others are demeaned for their stances on complex issues every day around this nation. Around dinner tables, at bars, at water coolers, political conflicts are feeding our darkest, most tribalistic, most egocentric instincts, with a tone set by our nation’s leaders and media.
“Because, in other words, no one would have said, “Enough, now” and decided that nothing that they may do within politics could possibly be as important in our present time as a paradigm shift in how we do politics and most importantly, treat each other while we do it.
“I’m referring to a paradigm shift that puts people before politics, rather than politics before people—which is the current paradigm in which Dr. Ford and I have just become the two most recent and visible victims.
“I am not a Congressman, a Senator, or the President. I am a justice of the Court, but I also hold a political office—and it is the highest in the land.
“It is the office of 'Citizen.'
“It is a title I share with every single American, whether they were supporting my nomination or hoping I’d be locked up; whether they believed every word Dr. Ford said, or were hoping that she would be locked up. Whether they are Democrat, Republican, Libertarian, Green, or of any other affiliation, or none. Whether they are mothers, daughters, fathers, or sons.
“And today, I happen to find myself in a position where the eyes of the country are on me, and the passions of the country are directed at me, for good or ill.
“I didn’t seek this.
“As just one citizen, I can’t cause the paradigm shift that this country needs. But I can do my best to set an example for 323 million others. And because of the process I have just been through and the attention I happen now to have, I can do much more than that. I can give an opportunity to those who have the power to change our paradigm to do better and actually change it.
“I can give Representatives, Senators, and the President, whom I mentioned earlier, the opportunity to set an example on their platforms and to lead by that example. An opportunity, in other words, to be the change that most of them claim to seek in our country—change Americans of good faith know we need.
“This time, they can put right what they did wrong, and set another standard in light of the lessons that have been paid for by my suffering and that of Dr. Ford. To call Americans, by their actions and words, to our higher selves. To change what has become 'normal.' To make suspicious, distrustful, self-righteous, personal politics—which have somehow become 'acceptable'—once again unacceptable.
“This is a hard choice for me. But it seems obvious that, if I just take my place on the bench of the Supreme Court and do my best there for the next 20 or 30 years, you, America’s political leaders, will return to your benches in the committee rooms of D.C. and treat our nation, our Constitution, and our judiciary exactly the same way next time as you did last time, and so many times before—as things to be exploited, circumvented, or loaded, respectively, in favor of an ideology or—even worse—a party.
“The words of so many of our leaders now ring hollow because their actions have spoken so much louder than their words for too long. I said many things during my confirmation hearings and I don’t want them to ring hollow, too.
“I can’t make anyone act so differently as to change the course of this country’s history. But I can invite you, our leaders, to do so, and set my own example.
“By stepping down and inviting you to re-establish this process as it was meant to be, and as it used to be, I can give you, our nation’s leaders, an opportunity to do what most needs to be done at a time when our country is in great pain and thus most likely to benefit from it. It is the pain that inevitably results from ignoring for too long the fundamental principles that enable us to judge ideas and opinions without judging, let alone destroying, people.
“In other words, I can offer the healing so many of you say that our country needs.
“E pluribus unum is a wonderful motto, not only for 50 states but also for 323 million people.
“And at a time when we are so far away from realizing that ideal, and when moral leadership is so sorely lacking, the mea culpas and the examples need to start from the top.
“Accordingly, I am stepping down from my position on the Supreme Court to allow you not just to conduct your business as political leaders in a way that sets a proud example for our nation, but also, throughout the process of nominating my successor, to communicate with the American people in a way we all need to be communicating with each other.
“I invite every single politician involved in the judicial nomination process and supportive of one party or another not to inflame passions for or against the next nominee based on his or her politics, but to dampen them, raising the discussion to legal principles, to judicial principles, and to our founding principles.
“I challenge each and every one of you to tell Democrats and Republicans and others that the nominee’s politics don’t matter. Because what matters is whether he or she can leave politics at the door of the Court.
“I challenge each and every one of you to tell Americans that assessing a nominee’s ability to be a good judge doesn’t mean determining whether you favor the political consequences of judgments they would make; rather, it means determining whether they bring intellectual honesty and a commitment to Law to their job, regardless of their politics—and yours.
“I challenge each and every one of you to tell Americans who may have a partisan reason to support or reject any nominee that you don’t want their support if it means insulting, bullying, or threatening anyone.
“In other words, I am stepping down to give all of you—Democrats and Republicans alike—an opportunity to do this again, drawing your battle lines not on abortion, campaign finance, or Trump’s presidency, but on a commitment to Truth, Law and the Constitution.
“I am giving you an opportunity to show the nation what a judicial hearing really looks like, and what politicians look like when they put the wellbeing of the country and the proper treatment of all people ahead of their political agendas.
“I am giving you an opportunity to show America what advice and consent were always supposed to mean.
“Now, I am fully aware that my choice to stand down may do no good whatsoever. And then history may look at my decision as a quixotic end to a bizarre chapter involving a strange man.
“You may choose not to take this opportunity to be the change that so many of you say you want to see in American politics.
“But I know this.
“At some point, our country will change from the partisan circus it has become. Because if it doesn’t, it will no longer be our country.
“Given that it must change, why don’t you change it now?
“I’m willing to play my small part. Are you willing to play your large parts?
“The problem faced by America is too great to be solved by nudging the Supreme Court—or any other institution for that matter—slightly more conservative or slightly more progressive. Indeed, when it comes to the Supreme Court, political ideology shouldn’t be a measure because you, Senators and Mr. President, wouldn’t be nominating or approving justices who infuse their politics into any judicial decision at all—if you’re doing your job.
“In times to come, there has to be a day that our children will look back to and say, ‘perhaps that was the day that America took stock, got a grip, and chose its higher path again.’
“I’m stepping down in the hope that you will bring that day forward.
“You must lead by example because there is no other way to lead.
“My stepping down may do nothing. Or it may be a small beginning of something much more important for our country than who happens to sit on the ninth seat of a Court or which partisans get to enjoy fleeting relief from their anger in the brief satisfaction of their political bloodlust.
“Congressmen and women, Senators, and all others who make decisions for our nation; if you choose, you may make my act this day a contribution to my country greater than any other I could ever hope to make—even on the Supreme Court.”
I wish Judge Kavanaugh every success on the Supreme Court. I’m not calling on him to resign any more than Jordan Peterson was.
But just imagine if he did—and that he made the above statement when he did so.