Mark Tushnet in his A Court Divided―The Rehnquist Court and the Future of Constitutional Law (pp. 71-72) exemplifies a sliding scale of truth or truthiness amid our pseudocracy.
“In 1995 I published an essay about a book dealing with [Justice Clarence] Thomas’s confirmation. After presenting what I still think was a relatively sympathetic account of what I thought had happened between Thomas and Anita Hill, I concluded that he had almost certainly lied in denying that anything at all had happened. Under normal circumstances the discovery that a Supreme Court justice had lied about something important in the course of his nomination hearings would lead to an impeachment, but because that outcome was politically impossible, I wrote that legal scholars and ordinary citizens ought to take the position that Supreme Court decisions rendered by five to four majorities when Thomas was in the majority should not be regarded as law at all. …
“I no longer think that Thomas probably lied. Just as I think that what happened between Thomas and Hill was more complicated than nearly every account suggests, so I think that Thomas’s reaction to the charges against him was more complicated―more like an honestly stated reconstruction of the events, motivated by a combination of outrage and puzzlement about the source of the charges, than assertions of facts that he knew to be false.”
I marvel at Professor Tushnet’s laundering of probable lies. Professor Tushnet thought that Judge Thomas probably lied about his past but now thinks Judge Thomas reconstructed events because he was outraged and puzzled. Judge Thomas, Professor Tushnet now presumes, was more honest than cunning in his misstatements and denials.
Professor Tushnet invokes Judge Thomas’s sincerity and hurt to upgrade Judge Thomas’s accounts to an understandable rationing of truth. Judge Thomas did “not really” lie or probably lie; he reacted. Judge Thomas’s accession to the Court was blocked, perhaps unfairly or underhandedly. Judge Thomas and his allies, fairly or unfairly, trashed Professor Hill to unblock his accession. Their denials made a Supreme Court justice of Judge Thomas and a liar of Professor Hill.
Irrespective of how little or how much truth one finds on Professor Hill’s side or Justice Thomas’s side, Professor Tushnet relaxes his standards for factuality in a manner that suits Justice Thomas’s office more than Professor Tushnet’s. What a facile slide step to sidestep facts and probabilities. Truth-telling is not what can be verified; untruth is not what cannot be verified. Rather, whatever cannot definitively be proved to be a fully conscious and deliberate lie is treated as a truth. I tell a truth, in this rendering, when I fabricate a self-exculpating account that no one can prove that I do not sincerely believe.
By this account, Justice Thomas did not lie his way around an obstacle to reach the Court. Instead, Justice Thomas broadcast a delusion.
I pass by why Professor Tushnet would not continue to recommend that Justice Thomas’s deciding votes be discounted even if Justice Thomas is merely delusional.
However, I note how Professor Tushnet misstated the “normal” consequences of lying one’s way onto the Court. I am unaware of any U. S. judge [let alone a Supreme Court justice] who has been impeached or removed for lying in confirmation hearings, so I wonder how Professor Tushnet could define any consequences of deceit “normal.”
The “norm” that Professor Tushnet conjured is hypothetical if not fanciful. The normalization that Professor Tushnet worked in the passage above, by contrast, is neither hypothetical nor fanciful. It is a standard maneuver for camouflaging opportunistic dishonesty by means of [Thomas’s] professions and [Tushnet’s] presumptions of sincerity amid complexities.
Behold how political exigencies beget professorial expediences.
Professor Tushnet’s literary or scholarly expediences take liberties with truth gratuitously. If Professor Tushnet would deny that Judge Thomas “… lied about something important in the course of his nomination hearings … ,” why didn’t Professor Tushnet emphasize that Clarence Thomas’s proclivities regarding pornography or “courting” were not very important for any purpose beyond trashing Judge Thomas’s reputation? Professor Tushnet should argue that Judge Thomas’s opponents blocked his path to the Court with scandal rather than substance. Professor Tushnet should relegate Judge Thomas’s denials to grubby politicking concerning trivia rather than reformulate deceit as transcending abject, deliberate, demonstrable mendacity and therefore more truth than lie.
In our pseudocracy, anything short of an admitted, deliberate falsehood is “true enough.” [I here invoke True Enough: Learning to Live in a Post-Fact Society, a monograph by Farhad Majoo.]
Tushnet complicates traditional understandings of “the truth, the whole truth, and nothing but the truth.” Perhaps witnesses should in the pseudocracy swear to tell “a truth, a partial truth, and anything but a flat-out lie.” Maybe that would not work. It’s too candid and straightforward for the pseudocracy.