Glenn Harlan Reynolds

Opinion columnist

As I write this, I have no idea what will happen with Judge Brett Kavanaugh’s Supreme Court nomination. But I do have a few observations on what’s happened so far:

“Believe the women” is bunk, and nobody really means it anyway. We heard that mantra in two of the most famous fake-rape cases of recent years, the Duke lacrosse case and the University of Virginia/Rolling Stone case. In the former, the prosecutor who believed the woman in question wound up losing his law license; in the latter, Rolling Stone wound up facing millions in damages. In both cases, stereotypes about “privileged” athletes and fraternity brothers encouraged many people to believe stories that were rather shaky, and to shame those who expressed doubts as rape-enablers.

Only there was no rape; it was all made up.

We’re now hearing the same kinds of things from opponents of Judge Kavanaugh. But a story is true or not based on its facts, not on who the accuser, or the accused, happens to be. To know what happened here, we need facts, not stereotypes.

People believe what they want to believe

Then there's the case of Keith Ellison, deputy chairman of the Democratic National Committee. He's accused by a former girlfriend of domestic violence and abuse, but only 5% of Democrats in Minnesota believe the charges, according to a poll by the Star Tribune and Minnesota Public Radio, despite evidence of a doctor's note that includes her allegation of physical abuse. Ellison, meanwhile, says the woman, Karen Monahan, is lying, and warns that there may be more false accusations to come. Believe the women? Not so much.

People believe what they want to believe, at least until the evidence is overwhelming. (And sometimes even then.) And calls to “believe the women” tend to be pretty opportunistic — something that Juanita Broaddrick, who accused Bill Clinton two decades ago of rape to no effect, has been noting on Twitter.

The Supreme Court is too powerful. Confirmation fights are so contentious because the Supreme Court is in many ways the most powerful part of our government. It’s the only one whose rulings can’t be overturned by an election, and it’s closely divided. The makeup of the Supreme Court is so important that it plays a major role in elections for the presidency and for the Senate. This is a profound distortion of our constitutional scheme, one that’s bad for the court and for the country.

More:Hypocritical politically motivated feminism is killing #MeToo. Just ask Keith Ellison.

Make the Supreme Court lots bigger. It's not a priesthood, it should represent America.

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We’ve become too tribal. For decades, the consensus favored bringing Americans together, across divides like race and religion. But things don’t work that way now. As Andrew Sullivan writes: “After a while, the crudest trigger points of tribalism — your race, your religion (or lack of it), your gender, your sexual orientation — dominate the public space." He underscored his point with this from Quillette founder Claire Lehmann: "The Woke Left has a moral hierarchy with white men at the bottom. The Alt Right has a moral hierarchy that puts white men at the top."

Politicians, as I’ve noted here before, probably know that tribalism is bad for the larger society. But it benefits their political positions, and we no longer have strong enough societal norms to control it. If we don’t develop such norms, the result will be bad.

Social media make things worse. There are some nice things about the immediate interaction made possible by sites like Facebook and Twitter. But social media — especially Twitter, where most of the political/journalistic types hang out — can be destructive, too. Ideas and half-baked theories spread like wildfire, amplified by algorithms that emphasize “engagement,” which give more attention to the ideas that people love or hate the most.

Maybe cameras and good government don’t go together. Watching senators posture during the Kavanaugh hearings this month, a fellow law professor observed that he was now convinced having cameras in federal courtrooms was a bad idea. He may well be right. At any rate, having cameras in the Senate certainly hasn’t improved the quality of senatorial work.

Theatrics have not improved our government

Maybe we should just get rid of confirmation hearings entirely. Though people take the practice for granted now, it’s actually of relatively recent vintage. The first hearings involved the confirmation of Justice Louis Brandeis in 1916, and it happened because anti-Semites were reluctant to approve a Jewish associate justice.

For many decades after that, hearings were held but the nominee didn’t take questions. The first time a nominee took questions from senators was Potter Stewart in 1959, and that was because of concerns by segregationists.

It’s hard to argue that either the Senate or the Supreme Court has improved since. Maybe we should eliminate the theatrics.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself," is a member of USA TODAY's Board of Contributors. Follow him on Twitter: @instapundit.