At the height of the #MeToo ferment over Judge Brett Kavanaugh, hundreds of Harvard and Yale law students shut down their classes to protest Kavanaugh’s nomination to the Supreme Court. The students demanded that Kavanaugh’s sexual assault accusers be believed unconditionally, simply on the basis of having made an uncorroborated accusation.
Many of these elite law students will end up as judges. Yet the media cheered them on, even though their rejection of the presumption of innocence, if carried to the bench, would demolish a cornerstone of Anglo-American jurisprudence.
However, if you argue that female college students have agency to prevent many cases of what feminists label as campus rape then you have unfitted yourself for a judicial career, according to a large segment of the media and the political class. Last week, Democratic Senator and presidential contender Kamala Harris contemptuously grilled a judicial nominee for having written that female students can control whether or not they get drunk, the usual prelude to the hook-up sex that the campus rape industry routinely classifies as rape. Neomi Rao, whom President Trump has selected to fill Brett Kavanaugh’s now-vacant seat on the D.C. Circuit Court of Appeals, penned several op-eds as a Yale undergraduate questioning the idea that females are always helpless victims of the male libido, unable to avoid regretted dorm room sex. Rao’s treatment on Capitol Hill suggests that fealty to the narrative of perpetual female victimhood is fast becoming a prerequisite for a judgeship.
Activists had initially attacked Rao’s judicial nomination because of her role in Trump’s deregulatory agenda. As head of the Office of Information and Regulatory Affairs, Rao has led efforts to prune back the administrative state. The Center for Biological Diversity announced that, if confirmed, Rao would “dismantle 40 years of environmental and social progress.” Rao’s deregulatory sins were tame, however, compared to the student writings unearthed by Nan Aron, head of the left-wing Alliance for Justice and long-time scourge of conservative judicial nominees. Aron gave the website BuzzFeed first dibs on Rao’s college op-eds, which the site publicized on January 14 under the headline: “Trump’s DC Circuit Court Nominee—And Reported Supreme Court Contender—Wrote Inflammatory Op-Eds in College.” Seeking the most “inflammatory” quote it could find, BuzzFeed splashed across its page in massive boldface type: “If she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” The rest of the quote, which BuzzFeed included in the body of its article, was just as shocking to a liberal sensibility: “Implying that a drunk woman has no control of her actions, but that a drunk man does, strips women of all moral responsibility.”
Two days after BuzzFeed’s story, USA Today announced: “Trump Pick to Replace Kavanaugh on Appeals Court under Fire for College Op-Eds on ‘Hysteria over Date Rape.’” USA Today recycled the same “inflammatory” passages chosen by BuzzFeed, confident in their shock appeal, but added some new content here and there, such as the scandalous statement: “Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink.” The student journalist Rao, it seemed, just couldn’t stop recklessly attributing efficacy to females. In another column from 1994, Rao wrote that while a drunk man who raped women should be prosecuted, “a good way to avoid a potential date rape is to stay reasonably sober.”
The scene, in other words, was all set for Kamala Harris to underline the powerlessness of women during Rao’s confirmation hearings. Barely able to contain her contempt, Harris repeatedly asked Rao what steps she thought women should take “to avoid becoming a victim of sexual assault.” At each iteration of the question, Harris’s incredulity grew: the cretin sitting before her kept suggesting that females could avoid excessive drinking in order to lessen the risk of assault! Obviously, Rao was engaging in victim-blaming of the most patriarchal, rape-culture-y sort. Harris asked Rao if she still stood by her comment that, in Harris’s words, a “good way for a potential date rape to be avoided is for a woman to stay reasonably sober.” Harris continued wearily: “You went on to say if a woman ‘drinks to the point where she can no longer choose, well getting to that point was part of her choice.’” Rao caved and said that she would no longer stand by those comments today. She should have said: “You bet I stand by those comments; drinking yourself blotto is a personal choice carrying known risks. I thought we all wanted to keep females safe, a separate question from criminal culpability.”
Iowan Senator Joni Ernst jumped on the feminist bandwagon with Harris. Rao’s writings gave her pause, the Republican told Rao, “regarding messages we send young women everywhere.” One might have thought that a message of empowerment was a good one to send, but perpetual female victimhood is better, apparently. “We have to change the culture of sexual violence,” Ernst said. “Young women need to feel comfortable sharing the experiences they’ve endured.” Even if we were in a “culture of sexual violence” —which we are not—why not arm females with ways to stay free of allegedly ubiquitous male predators, such as telling them not to get black-out drunk? Ernst’s charge that Rao had somehow inhibited females from “sharing the experiences they’ve endured” implies that females can only share their experiences in a context of uncritical feminist victimology. To acknowledge the complicated tangle of desire, confusion, cultural expectations regarding easy sex, and embarrassment about saying “no” that gives rise to drunken hook-ups is incompatible with the simple feminist morality play of helpless female and toxic male.
The Republican defense of Rao has taken the easy way out: Rao’s op-eds are past the statute of limitations. Justice Department spokesperson Kerri Kupec told BuzzFeed that the views Rao “expressed a quarter century ago as a college student writing for her student newspaper were intentionally provocative, designed to raise questions and push back against liberal elitism that dominated her campus at the time.” Kupec’s statement is correct as far as it goes. But these “intentionally provocative” views should not be disqualifying even if Rao had written the op-eds yesterday. Texas Senator John Cornyn was even squishier. These days we “criticize people for maybe some of their youthful indiscretions or opinions they expressed back then that are not particularly politically correct today,” he observed blandly. But Rao’s college writings were not “youthful indiscretions,” they were accurate assessments of the hook-up scene and the role of excessive drinking in perpetuating it. Republicans should proudly own Rao’s critique, regardless of its vintage.
Rao’s nomination may yet survive this latest Borking of a conservative lawyer. But the drill for taking down government appointees who have dared dissent from progressive orthodoxies is now clear. All the media need do is quote or paraphrase a sentence or two from the offending pieces and—voila!—the case against a nominee is all but sealed, since the disqualifying heresy is self-evident. This script worked for another recent Trump judicial nominee. Ryan Bounds, a federal prosecutor nominated to the U.S. Ninth Circuit Court of Appeals, had written mocking columns about campus race politics as a Stanford undergraduate. BuzzFeed reported that in one, “he accused campus ‘multiculturalists’ of stereotyping minorities who espoused conservative views, and he listed some of the derogatory terms used to describe them.” Res ipsa loquitur. No need to prove that minorities who espouse conservative views are not stereotyped, just as it is not necessary to argue that staying sober would not help females avoid “campus rape.” The media can assume that its readers share a set of cultural assumptions that render superfluous any effort to rebut conservative opinions through argument and reason; those opinions are self-evidently absurd. BuzzFeed characterized Bounds’ language lambasting identity politics as “racially charged.” Terms like “white supremacy” and “white privilege” are presumably not “racially charged,” they are simple fact. (One Bounds aperçu, overlooked by the media, was particularly prescient: “Whenever a group of white males happens to be at the same place at the same time, you can be sure that the foul stench of oppression and exploitation lingers in the air.” This observation, from 1995, adumbrated last month’s mobbing of white male students from Kentucky’s Covington High School with eerie precision.)
Like Rao, Bounds recanted. He had used “overheated” and “overzealous” language, he told the Senate Judiciary Committee. He may as well have stood firm. First one, then two, Republican senators decided that identity politics trumps honest critique. South Carolina Senator Tim Scott, soon joined by Florida Senator Marco Rubio, scared other Republicans away from backing Bounds and his nomination was quietly shelved. Joni Ernst may play the same role for Rao, spooking male Senators into insulating themselves from any taint of “rape culture.” (On the other hand, Rao’s identity profile—female, non-white heritage [her parents are East Indian]—increases her Supreme Court appeal, so she may have more political value than Bounds.)
Every time a public figure repudiates a previous challenge to politically conformist thought, he solidifies the grip of that thought on public discourse. He gives credence to the idea that non-orthodox statements of reality are so patently offensive that they disqualify their holders from respectable office tout court. Mere citation of those statements is enough. To be sure, conservatives and Republicans have their own repertoire of left-wing statements that they, too, judge as self-evidently absurd, such as: America’s “legacy aspires to the shackling of black bodies,” or: The role of the Immigration and Customs Enforcement agency is to “terrorize immigrants.” The divide between the progressive and the conservative world view can be measured by these “inflammatory” statements: obviously preposterous on one side of the ideological divide, obviously true on the other. But while Rao may squeak by the political censors this time, the longer-term prognosis for breaking the grip of progressive ideology on elite institutions is not good. If any mention of females’ co-responsibility for drunken hook-ups causes a terrified dash for the exits, even more fundamental questions of culture and agency will become further off limits.
This piece originally appeared at Quillette
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Heather Mac Donald is the Thomas W. Smith fellow at the Manhattan Institute, contributing editor at City Journal, and the author of the bestselling War on Cops and The Diversity Delusion (available now). Follow her on Twitter here.
This piece originally appeared in Quillette