The Volokh Conspiracy

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The Northam Controversy, the Kavanaugh Controversy, and Long-Past Misbehavior


I think highly of Justice Kavanaugh, and I do not think he was guilty of what he was accused of doing. But—contrary to some arguments I've been seeing—I don't think that the demands that Gov. Northam resign because of his yearbook photo 35 years ago are particularly similar to the demands that Judge Kavanaugh not be confirmed because of what he allegedly did 35 years ago.

First, Judge Kavanaugh was accused of committing a very serious crime; Northam is accused of including in a yearbook a photo that was in bad taste, and that may (or may not) have reflected that in 1984 he had some racist attitudes.

Second, Judge Kavanaugh firmly denied the allegations against him, so if they were true, he would have been guilty of lying about them (eventually under oath)—which would have been current bad behavior, not just long-past. Northam had (at least when I had posted my earlier post) admitted the allegations, so the issue was his behavior in 1984, not today. Since then, CNN has reported that Northam is saying he wasn't in the photo (though he's not denying including the photo in the yearbook). If he's now lying, then that is quite bad, again because it is current bad behavior. But the focus should be on his current or at least recent behavior, not his behavior at age 25 now that he is 60.

More broadly, consider what standard we're trying to set for the future. If it's "people who are lying today about their bad behavior from 35 years ago shouldn't be in high office," that may be sensible. If it's "people who committed serious crimes 35 years ago, for which they weren't punished, shouldn't be in high office," that may be sensible. (Again, I don't believe that Justice Kavanaugh was guilty on those counts, but that goes to the particular facts related to those accusations, and not the general principle of what should have been done if the accusations were accurate.)

But if it's "people who said or did offensive things 35 years ago shouldn't be in high office," or even "people who expressed racist / sexist / anti-gay / anti-Semitic / etc. opinions 35 years ago shouldn't be in high office," that's a very different thing. It's tarring someone forever for minor misconduct (again, I note that major misconduct would be a different matter), without considering whether he may have developed better judgment and better views from age 25 to age 60. It's rejecting the possibility that people actually get wiser as they get older—that they grow up—that they improve their judgments, their beliefs, and their conduct.

And it's potentially depriving the nation of many valuable public servants because of a dumb thing they did long ago. Northam's specific past behavior (again, I'm setting aside the newly emerging denial, and whether it's a false denial) may not be that common. But consider all the other things that can be blown up into similar hurricanes. Maybe some people (black, white, or of any other race) quoted some sexist lyrics. Or maybe they expressed anti-gay views, which they may now regret. (Lots of people's minds have changed in 35 years about sexual orientation, as they have changed about what is so racially offensive that it shouldn't be said.) Or maybe they praised people who shot at police officers, or said nasty things about American soldiers. Or maybe they told jokes about Jews or gays or Puerto Ricans or men or women, whether or not those jokes actually reflected their own serious views about such matters.

Or maybe they did things that actually risked physically harming people, rather than just offending them. Maybe, for instance, they drove drunk—poor judgment, potentially very dangerous, not something we'd want of a sitting Governor—but doesn't it matter that it happened three decades ago rather than today?

If you want to go after Northam for his current views on abortion, go ahead. If you want to go after him because you think he's lying today about what happened then, go ahead. But calling for him to resign because of his bad judgment (or even his racist views, if you think he actually held such views then) from 35 years ago—what kind of country would we be creating if that were really adopted as the rule?