By Monica Hesse
The Washington Post
If you, like me, streamed 22 hours straight of Brett Kavanaugh’s confirmation hearing, you might have noticed something: It was often presented not so much as a fight between liberalism and conservatism, or even constitutional originalism vs. activism, but as a fight between “hysteria” and “civility.”
Civil: A parade of senators, at a stopwatched 30 minutes a pop, questioning the Supreme Court nominee about hot-button matters including abortion.
Hysterical: A parade of protesters – mostly women, some men – interrupting the civility at the top of their lungs before being removed by Capitol Police: “Protect women, be a hero.” “Our bodies, our choice.” “Women’s rights are human rights.” And, most dramatic: “I will die.”
The interruptions were a nuisance to some members of Congress, both on the committee and outside the room. “What’s the hysteria coming from?” asked Sen. Ben Sasse, R-Nebraska, lamenting the long tradition of “screaming protesters saying women are going to die.”
On Facebook, Rep. Peter King, R-New York, was more forceful: “The disruptive, hysterical outbursts and demonstrations at yesterday’s Senate confirmation … were absolutely disgraceful.”
“Mr. Chairman, I think we ought to have this loudmouth removed,” Sen. Orrin Hatch, R-Utah, said as one protester was yanked from her seat. He offered a contrasting assessment of Kavanaugh: “You are a smart, decent, normal person.”
Loudmouths and normal people.
Hysteria and civility. The latter has become a nostalgic buzzword — a John McCain-ish buzzword — signaling a concept that people who disagree with each other should still maintain proper decorum.
The former (as these politicians soon learned when they were excoriated online) is a nostalgic pejorative, traditionally used to explain why emotional women should let rational men handle decision-making.
But I am actually less interested in whether the word “hysterical” is sexist than I am in whether the emotion it describes is as inappropriate as Sasse et al. claimed.
There’s nothing particularly civil about taking away people’s rights to bodily autonomy, and there’s nothing particularly hysterical about wanting to keep them. There’s also nothing particularly hysterical in pointing out that real people will be impacted by laws. Thousands of women had illegal abortions before Roe v. Wade; hundreds of them died. We should weigh that. Really weigh it, whether we are abortion rights advocates or antiabortion, because nobody wants women to die.
In a country currently in frequent tailspin, it’s easy to see manners as a refuge, instead of what they sometimes are: the pretty veneer covering a crumbled foundation, or a reassuring sleight of hand, or a distraction from issues that are necessarily messy and emotional.
Kavanaugh was relentlessly civil, and so were the senators trying to get him to explain his opinions on reproductive law.
“I’m sorry for the circumstances,” said Dianne Feinstein, D-California, apologizing for the protesters before asking Kavanaugh whether he believed landmark abortion case Roe v. Wade had been decided “correctly.”
“I understand the importance that people attach to the decision,” he responded politely. He then repeatedly said Roe was a legal precedent, but refused to say whether he agreed or disagreed with that precedent.
The reason people “attach importance” to it, though, is the same reason there were screaming, hysterical protesters in the hearing room. Because it relates to central questions in our democracy: Who has what rights? What are the boundaries of privacy, freedom, and self-determination? What does it mean to treat women and men equally? The idea that an experienced jurist had no legal opinions on it seemed baffling, and yet this is what he insisted. Politely.
In the antiseptic atmosphere of the Senate hearing room, and under the lofty language of civility, the yelling protesters were often the sharpest reminder that the hearing had high stakes.
Until, of course, late Wednesday when Sen. Kamala Harris, D-California, went viral. She wasn’t hysterical. But she wasn’t civil, either. She dispensed with pleasantries entirely. She didn’t thank Kavanaugh for coming as other senators had. She spoke to him with the brusqueness of the former prosecutor she is.
She asked whether there were any laws that gave the government the power to control male bodies. Kavanaugh replied that he could not think of any.
Then she pressed further: Kavanaugh had repeatedly spoken of the importance of precedent. But, “As a factual matter, can five Supreme Court justices overturn any precedent at any time?”
“You start with a system of precedent that’s rooted in the Constitution,” Kavanaugh said.
“I know, but just as a factual matter, five justices, if in agreement, can overturn any precedent, wouldn’t you agree?”
“There are times.”
Would Kavanaugh actually overturn Roe? He wouldn’t say. Maybe he doesn’t know. It was still a revealing exchange.
What Harris’s questions did was expose that Supreme Court precedents don’t come from nowhere, they come from people. Laws aren’t intellectual exercises, they impact people. Civility is nice, but when it is used to obfuscate actual beliefs and acts, it’s useless.
Did the other senators get that? Did Kavanaugh?
They might have been the calm ones, but that didn’t make the protesters hysterical. And it didn’t make the senators right.