We Decide Supreme Court Appointments in the Worst Way

The headline shouldn’t surprise anyone after checking out what our so-called government thinks is the best way to proceed in making appointment decisions. We elect people who believe that seeing into a person, seeing who they are deep inside, is going to be helpful in determining if they will be able to fulfil a role.

The Kavanaugh hearings exposed that we haven’t moved forward since ancient times in the belief that one’s actions and attitude communicate what’s really in the soul. Spending a few days answering questions in a really fancy room might not be the way to determine if someone is a good person. The process is a parody, a very insulting parody, of dialectic. Kavanaugh is a terrible person for a lot of reasons. So this post isn’t really about him, but it could be as you’ll see near the end.


Kavanaugh is pretty clearly an unfit person to hold any position, but this sort of “unfit” is a perfect fit for the American ruling class. His behaviors throughout his life indicate that he understands what’s on the table and what’s off the table as far as conduct that will be perceived as appropriate, or behavior that matters. Remember, it’s only been recently that we, as a society, have determined that sexual assault is not something that women have to tolerate in order to be successful.

The Kavanaugh hearings opened up for me an opportunity to think about how to re-arrange our hearings and confirmation processes around a rhetorical first principle instead of this incredibly bad 15th party version of some Socratic version of truth. It’s nonsense in the political to believe that soul-truths would be the best way to govern. What you need is flexibility, situational awareness, and command of the power to rewrite reality with well-chosen articulations. This is a Supreme Court ability set, if you think we need one.

So what would the hearings look like? I would suggest instead of investigating “Character” - which nobody we elected seems to understand what that might mean given the questions - we should ask questions around the most important issue for a justice: What is your conception of the Universal Audience?

The Universal Audience is the creation of Chaim Perelman and Lucie Olbrects-Tyteca in their book The New Rhetoric. They argue that when we are arguing we are imagining our audience. That audience is not the actual audience we will engage with, but it is the audience we feel is worth engaging. That’s a huge difference, and can cause some problems. For example, what if you imagine the only audience worth engaging is people who “get it” in the terms of class, political view, race, et cetera - all the accidental characteristics people can have? This then excludes large parts of the audience that are legitimate. This is why BP debate internationally is nonsense - speakers exclude anyone who hasn’t practiced BP from their conception of what is persuasive, rendering their approach to argumentation unethical, at least. It is pandering, and it’s something to be avoided in ethical argumentation.

According to the Universal Audience theory, there is an ethical way to do this which is to double check yourself and determine if you are committing the fallacy of substituting a vanguard audience - a specialist audience, but not just specialized in an academic subject, but perhaps even class or race or other exclusionary characteristics - for the universal audience which includes people who are not factually present, but due to the content and the scope of the material deserve to be present in the discourse. This is how I interpret Perelman and Olbrects-Tyteca when they write, “The Universal Audience is not a matter of fact, but of right.” Who has a right to be included in your argumentation? Who has the right to be assumed when you are speaking?

By now you can see that Kavanaugh’s universal audience fails on a couple of fronts, mostly due to his argumentative responses to the accusations of Dr. Ford and others. His rhetorical performance fails to include appropriate stakeholders and we can see that via performance. His argumentation is structured, as all of our arguments are, toward who we imagine counts. He does not imagine that these women, and these sorts of claims that are made by women, matter.

How can we make this critique rhetorically, or at least, consistently with the theory I’ve discussed? Perelman and Olbrects-Tyteca offer the idea of the undefined universal audience, which is the ethical check on the easy slide between a vanguard and a universal. The undefined universal audience is the conception of how that audience was formed by the speaker, given his or her conditions, and whether the criterion or locus of the generation of that audience was done ethically. The Undefined universal audience is a good way to evaluate whether a speaker has invoked inappropriate bias in the framing of why their position is acceptable, and why we should believe it. This comes from structure as well as content (“I got into Yale” is a good example of both).

The undefined universal audience is a criticism that picks up on both what the speaker did to frame that audience, and whether or not the members of that universal audience are indicated in enough of the grounded, actual audiences that intersect all the time. This isn’t an appeal to intersectionality per se, but it could easily function along side it since it’s easy to assume any audience member is a composite of multiple identities both asserted and ascribed, and persuasive rhetoric is always pulling one forward and pushing others back (an audience view of how Perelman & Olbrects-Tyteca’s concept of “presence” and “amplification” might work).

So Kavanaugh’s universal audience of “Americans” is unethical since it does not consider the legitimacy of those who are women, nor those who did not attend elite schooling. Supreme Court judges must imagine universal audiences when making decisions. Can Kavanaugh form an undefined universal audience in these situations? Or would he mistake “Americans” or “citizens” for a vanguard audience?

This is the sort of questioning that would be quite meta, and quite valuable to listen to for us as we consider the evergreen question of who counts as American. Framing a universal audience, as in how to persuade people is always automatically answering the question “Who deserves to be persuaded?” And that understanding is a way to ethically check our arguments to make sure we aren’t using the idea of reason to erase large swaths of legitimate members of our society.