The Ketanji Brown Jackson hearing is the most boring thing I’ve ever watched that isn’t George Clooney’s The Midnight Sky. Inquiries from Democrats are basically just: “Tell me about a time you were awesome.” Republicans are showing Al Bundy-esque levels of living in the past by mostly rehashing grievances from the Kavanaugh and Coney Barrett hearings. Judge Jackson is, in my opinion, doing quite well. Honestly, she deserves massive credit just for staying awake — if I was in her shoes, it would probably go something like this:
One of the main Republican lines of attack involves Judge Jackson’s work as a public defender. Both Mitch McConnell and the RNC suggested that her time as a defense attorney indicates sympathy for criminals, including prisoners at Guantanamo Bay. I find this logic phenomenally dumb; I think the principle that everyone deserves a defense has been basically settled since John Adams/Paul Giamatti defended British redcoats/the guy who played Pius Thickness in Harry Potter way back in 1770/2008.
And yet, I managed to hear the “how dare you defend that person” argument twice in one day. At roughly the same moment that Judge Jackson was being sworn in, Aaron Sibarium was publishing an article on Bari Weiss’ substack recounting numerous instances of defense attorneys getting flak from left-leaning law students. The law students were basically asking the same question as Congressional Republicans: How could you defend that person? And, of course, that question has an answer: You defend that person because if a right exists, then it exists universally, or it doesn’t exist at all. I think that’s easy to understand. But I’m struck by the number of people on the left these days who appear not to understand that, and how they also don’t seem to realize that continually carving out exceptions to liberal principles will almost surely come back to bite them in the ass.
Consider free speech. A common argument among those who feel that American doesn’t have a free speech problem is that the concern over eroding speech norms is mostly just white men who want freedom to be racist. There’s a mountain of evidence suggesting that that’s not true — the very New York Times editorial that ignited the most recent Twitter tribalism dunk-fest contains some of that evidence — but suppose that it was true. Suppose that this entire debate was about straight-up, no-doubt-about-it racism.
Probably the most famous free speech case in American history is the ACLU defense of Nazis’ right to march in Skokie, Illinois. We will surely never have a harder test case of the free speech principle because Nazis are — I’m sure we can all agree — the worst people. It’s actually incredible how near-universal that sentiment is. In a century that saw the Soviets, the Khmer Rouge, the KKK, and the 1980s Oakland A’s, the Nazis still emerged as the all-but universally agreed upon worst people in the world. When it comes to undisputed GOATs, it’s basically just Hitler for evil and Michael Phelps for swimming, which I’m sure is a comparison that Michael Phelps loves.
The ACLU understood that if free speech could be curbed for Nazis, it could be curbed for other groups. In fact, they were explicitly trying to push back against tactics that had been used to shut down civil rights protesters in the south. Many backers of the free speech movement were socialists, which makes sense, because being a socialist in Cold War America was about as popular as being a nudist at bible camp. By defending a far-right group, the ACLU defended a principle that also gave left-wing groups freedom to operate.
The Skokie case is different from the current debate because it involved government censorship. That’s not reallyat issue today; today’s debate is about societal norms. The Times editorial stepped on its balls by mischaracterizing the issue as the right to be free from criticism, and, obviously, no-one should be immune from criticism. I’m a comedian: My entire job is basically criticism with a flourish. In my mind, the problem is a drastic narrowing of what’s considered “acceptable” speech combined with overly harsh penalties for those who break the rules. I don’t have a problem with criticism; I have a problem with trying to silence people through spurious charges of “hate speech” and getting people fired for minor violations of not-even-agreed-upon norms.
The government isn’t inflicting penalties, but cultural power is still power; it can pack a real punch. I’ve written before about how I consider this the second censorship wave of my lifetime, the first one being the conservative wave that followed 9/11. I don’t see any argument coming from today’s nothing-to-see-here left that didn’t come from the you’re-with-us-or-against-us right of yesteryear. After all, Bill Maher and the Dixie Chicks didn’t lose their careers — disenchanted consumers simply showed them the door. Plus, weren’t unpopular views just coming from blame-America-first terrorist sympathizers anyway? And it’s not like people were getting thrown in jail for unpopular views, so what’s the big deal? It was just a totally normal and healthy climate of fear in which people were terrified to say the wrong thing and in which we made a few awful decisions partly because people were afraid to go against the grain.
It should be easy to see that the scales of cultural power might tilt again and put left-wing views on the defensive. And, as many have noted, though the right complains constantly about “cancel culture”, they absolutely practice it themselves. Kathy Griffin recently appeared on Sway — and it’s hard to imagine a more deep-blue progressive sentence than “Kathy Griffin recently appeared on Sway” — to talk about how her career hasn’t recovered from her “beheading Trump” joke. Full Frontal with Sam Bee was almost cancelled when they called Ivanka Trump the c-word. In my opinion, both incidents should have been “apologize and move on” situations. But people who don’t like Kathy Griffin or Sam Bee were intent on extracting the maximum punishment possible because — at the risk of attributing motives — this is actually all about power.
The right will continue to use tactics being used by the left. This week, Josh Hawley achieved the incredible feat of lowering my opinion of Josh Hawley by accusing Ketanji Brown Jackson of being soft on child pornographers. The charge was utter bullshit — it was even denounced in the National Review. But Hawley’s tactic was a classic Twitter-era move: accuse someone of a charge so toxic that they lose by even addressing it. An unhealthy aspect of our culture is that people thrown around very serious charges — pedophilia, racism, sexism, etc. — the way Jackson Pollack tossed around paint. Judge Jackson will survive because people understand what Hawley’s doing, and also because Hawley is about as popular as a bee sting to the anus. But our habit of lobbing serious charges just to put our enemies on the defensive is not an appealing societal trait, and I think it’s ridiculous to pretend that it doesn’t have a chilling effect on speech.
Another case of liberals creating problems for themselves through squishy commitment to principle was Tara Reade’s allegations against Joe Biden. The Me Too movement raised important questions about conduct and consequences, but — as is inevitable with any movement that can be “joined” by any rando with a Twitter account — some people took things too far. Principles of due process and proportional punishment were sometimes jettisoned; lefty Twitter took to sneering at “due process” they same way they currently disdain “free speech”. At the height of Me Too — around the time Al Franken was getting drummed out of Congress — I tried to get Last Week Tonight to do a piece affirming the importance of due process and proportional punishment. I thought we were well-positioned to do that; after all, those principles were core tenets of the 60-80 prison-related pieces we had done up to that point. But the piece didn’t happen, and let me be clear: There are thousands of reasons why pieces don’t happen, the most common being “Maurer’s jokes were shit.” But, of course, I suspect that one reason it didn’t happen was the climate of fear that officially doesn’t exist but that people in entertainment talk about behind closed doors constantly.
Once the Me Too movement had been flatted to “every allegation any woman makes it true and if you question it you’re sexist” — which is a straw man that I think very few people believe but that not enough people openly denounced — a situation like what happened with Tara Reade was always likely. Reade’s allegations were investigated and found, by most, to not be credible; I consider her claims not credible because I’ve been in the Senate tunnels Reade describes, and I find them to be an extraordinarily unlikely location for a fingering. When Reade threatened to grievously wound Democrats’ electoral prospects, many suddenly found the voice to clarify that “take an allegation seriously” means to investigate it thoroughly, not to automatically accept it as true. This, of course, is the due process principle that’s been a core liberal tenet at least since Henry Fonda was righteously owning eleven lazy fucks in Twelve Angry Men; it’s also the principle whose defense would have gotten you flayed on Twitter in 2018. Many liberals were mealy-mouthed about our principles in that moment, only to be forced to speak up two years later, and — let’s not kid ourselves about this — everyone alive noticed the hypocrisy.
In her testimony, Judge Jackson said some version of “I just evaluate the facts” about a hundred times. This is, of course, what every judge says; for Ruth Bader Ginsburg it was “no judge is appointed to apply his or her personal values,” for John Roberts it was “I just call balls and strikes,” for Brett Kavanaugh it was “I’m impartial, now who wants a brewski? I love beer! Woooooooo! Beer!” Every confirmation is largely the judge asserting their impartiality followed by Senators spending three days asking “yeah, but for realsies?”
That’s because impartiality is extremely important. We all want to be subject to the law, not to the whims of some powerful person. The evolution from the rule of man to the rule of law might be the most important development in the history of government. Hammurabi’s Code wasn’t important because the laws were good — you could be burned to death for opening an off-the-books wine shop (rule 110!) — it was important because the laws were written down. It was a monumental step towards rules being applied in an even, consistent way.
If we make exceptions to principles based on circumstances — if we have one set of rules for people we like and another set of rules for people we don’t — then they’re not really principles at all. They’re rationalizations that we offer up while doing whatever the hell we want. A society where that becomes the norm is a society ruled by factionalism, not law. Some on the left seem to have tricked themselves into believing that our cultural dominance is permanent, and that we can exempt the “bad guys” from liberal protections without negative consequences. I think that’s a gigantic mistake; I think that type of thinking will — in the long run — erode the principles that protect us all.
There are cases today in which there’s a nexus between government power and prohibitions on speech; I don’t mean to suggest that the problem of government censorship has been completely and permanently solved. But the issues we debate today mostly involve cultural norms, not government censorship.
Tara *Reade* made the allegations against Biden. Tara *Reid* won an Oscar for "Sharknado."
I blame Trump's election for this. When he won, many of my friends on the Left lost their fucking minds. They want to put limits on freedom of speech and expression because they believe doing so will prevent another Trump from rising. I believe that's incredibly misguided for all the reasons you mention.