Markkula Center for Applied Ethics

What Brett Kavanaugh’s Denials Say About His Moral Judgment

Brett Kavanaugh

Brett Kavanaugh

Ann Skeet

(AP Photo/J. Scott Applewhite)

This article was originally published in MarketWatch on September 26, 2018.

Ann Skeet is the senior director of Leadership Ethics at the Markkula Center for Applied Ethics. Views expressed are her own.

For some, Supreme Court nominee Brett Kavanaugh’s initial response to claims of sexual assault color the way they are considering the fairness of the nomination process. If his response had been more neutral, balancing his own defense with his impact on others, would that change how people think about the outcome? What makes a denial ethical?

Moral judgment is developmental, meaning that we mature in our ability to reason ethically over our lifetimes. There are various models to capture this development, and some differentiate, interestingly, along gender lines.  

A model put forward by Harvard psychologist Lawrence Kohlberg identifies six steps of moral development, he groups into three levels: The first is children defining right and wrong in terms of what authority figures tell them, or in terms of reward and punishment.

The second level, typically reached in adolescence, draws on loyalties to family and friends and rules and laws.  

The third level is reached when a person can identify universal paradigms such as justice or equality and apply those in decision-making. It is also at this level that Kohlberg identifies an ability to see that there are minority points of view, different from ones an individual may hold, that are valid. For example, I can consider that men and women experience the same event differently, and even though I am not a man, have respect for that view.

Kohlberg’s model was challenged by psychologist Carol Gilligan, also at Harvard at the time and now at New York University, the author of “In a Different Voice.” In this encapsulation of gender studies, Gilligan proposed an alternative view based on a female perspective. It too, has three levels. 

The lowest level of maturity, she argued, is a woman’s ability to take care of herself.  A more ethical level of reasoning emerges as women begin to care more about others and work hard to maintain relationships.  The third level in her model revolves around choice, as women learn to make choices and accept responsibility for them, and in doing so become comfortable balancing their own needs with the needs of others.

Kohlberg’s model, seen as one favoring males, is characterized as a justice perspective, using principles of justice, equality, and rights. Gilligan’s model explores differences in what is considered moral by women. It is referred to as a care perspective, acknowledging that maintaining relationships, which might be viewed as second-level development in Kohlberg’s model, can still be a legitimate concern even at the final stage of a most fully formed conscience.

Ideally, people being tapped to sit on the Supreme Court have arrived at the highest order of moral development in one of these models. Using Kohlberg, one might expect a denial of someone with a highly formed conscience to defend himself by acknowledging that there are interests other than his own that should be served in this nomination process and that all should be considered impartially.  

It might sound more like the denial provided by Senator Al Franken when faced with his own #MeToo allegations: “I don’t remember it that way, I didn’t intend to hurt someone, but if I hurt someone, I am deeply sorry.” This acknowledges and allows for respect of a different perspective and a willingness to consider interests beyond one’s own.

Using Gilligan’s model, balancing care for oneself with minimizing harm to others as the highest order of moral maturity, would arrive at a very similar sounding denial. Though one perspective focuses on justice and the other incorporates compassion, the defense has a common cadence:  “I don’t think I did this. I am sorry if I did, or even if I didn’t, I am sorry someone else has been harmed.” 

Both would also contribute to a logical next step:  let’s find out what happened to the degree that we can.  Science backs this up: A recent study by researchers at the University of California, Berkeley reveals that people tend to use more recent data in making decisions rather than a more complete set of observations amassed over time. A more-thorough investigation contributes more data.

Much attention is being focused on what is a fair process for Supreme Court nominees to be vetted. That is a good question and one I have also considered.

A more salient question might be: What are the most important qualities of a Supreme Court justice? Achieving the highest order of moral development seems significant. That can be a hard element to calibrate in many nomination processes. But the way a nominee denies an accusation gives us another, highly relevant, data point.

Sep 26, 2018

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