Father Matt Malone: Why America magazine called for the withdrawal of Brett Kavanaugh’s nomination
As of this morning (Oct 2), an F.B.I. investigation is underway of Dr. Christine Blasey Ford’s allegation of a sexual assault when she was a high school student by Brett M. Kavanaugh, now President Trump’s nominee for a seat on the U.S. Supreme Court. It is unlikely that the F.B.I. will discover new, dispositive evidence. In the absence of such, “evaluating the credibility of these competing accounts,” America’s editors wrote in a recent editorial, “is a question about which people of good will can and do disagree,” adding that “the editors of this review have no special insight into who is telling the truth.”
America released that editorial online on the evening of Sept. 27, after the public testimony of Dr. Blasey Ford and Judge Kavanaugh but before the Judiciary Committee reversed its position and requested an F.B.I. investigation. Based on the information available at the time, the editors argued that Judge Kavanaugh’s nomination should be withdrawn. In the days following the release of this editorial, many readers wrote to ask critical questions about its timing and the motivations of the editors in releasing it when we did. We always welcome such questions. The trust of our readers is our most cherished possession. I am taking this opportunity, then, to address these concerns.
First, America has a longstanding editorial interest in the U.S. Supreme Court. We have weighed in for more than a century about matters pertaining to the court, including recommending, or not, the confirmation of specific nominees. America’s editorial board, therefore, was not doing something novel by commenting on the current nominee. Second, the recent editorial was a focused argument about the future credibility of the U.S. Supreme Court as an institution. The editors did not, directly or indirectly, assess the credibility of the allegations. The editorial decision to withdraw support for Judge Kavanaugh was based on the fact that he no longer had the confidence of a significant part of the U.S. citizenry. That lack of confidence would be damaging to the authority of the court in the years ahead if he were confirmed.
Third, America had endorsed Judge Kavanaugh’s nomination last July, before Dr. Ford’s allegation was made public. When new information that might change the opinion expressed in an earlier editorial statement comes to light, the editors are obligated to inform our readers. To do otherwise would be to act in bad faith. At the conclusion of the testimony of Dr. Ford and Judge Kavanaugh last Thursday, the Judiciary Committee was scheduled to vote the very next day, without any further investigation. Our editorial board, therefore, was placed in what ethicists call a “forced option” situation, one in which to do nothing is to do something. For the editors to say nothing would effectively have left our earlier recommendation on the table. Since our assessment of the situation had changed (the reasoning for that is laid out in the editorial), to say nothing would have been disingenuous.
That Judge Kavanaugh was educated at a Jesuit institution and has supported Jesuits throughout his career are facts that made our editorial deliberations particularly painful. But we could not allow Mr. Kavanaugh’s Jesuit ties to be dispositive. People can argue that the editorial misinterprets Catholic social teaching, or exaggerates the divisiveness of the situation, or fails to appreciate that any candidate will be divisive in the present political climate. Those are matters about which people of good will can disagree. The editors make no claim to infallibility.
The trust of our readers is our most cherished possession.
What we could not do, however, without undermining our editorial integrity or sliding toward a form of Jesuit nepotism, is to allow Mr. Kavanaugh’s ties to the Society of Jesus to predetermine our opinion in the matter. If we had done that, we would have failed in our duty to offer a fair and balanced opinion to our readers, no matter the cost.
In seeking to fulfill our obligations to the reader, there was no course of action available to us that would not cause pain and division. Yet that fact is but one modest dimension of the national nightmare we are all living through. The present zero-sum game being played in our national politics produces only losers. “Since the administration of government is inescapably political,” the editors of this review wrote in the late spring of 1968, “so is the United States Supreme Court. It follows that partisan politics are relevant to nominations to the Supreme Court, insofar as partisan politics are directed to the great constitutional and political issues of our time.”
It is what follows that last phrase, “insofar as,” that is most notably missing right now from the public discourse. Yet America will continue to pursue that goal in all our reporting and commentary. We won’t always get it right, but we’d rather lose than lie.