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On Franken and “Fairness”

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My initial gut response to the Franken story was to want him gone ASAP, and I still lean that way, but this seemed like a good question to adopt a “shut up and listen to women” approach, so that’s what I’m doing. (And, of course, I’m aware that turning this moment of reckoning into a meaningful step forward requires some caution and strategy, and not always leading with the rage.) On the one hand, I find Amanda Marcotte and Michele Goldberg’s accounts pretty compelling, but I *also* find Kate Harding‘s argument, and some other friends I respect defenses and elaborations of it, pretty persuasive too. So I dunno.

But I do know I think this take, from Kevin Drum, misses the mark in some respects. Responding to Goldberg’s observation that “The question isn’t about what’s fair to Franken, but what’s fair to the rest of us” he says:

No. The message to men in power should be: we will treat you fairly. That should be our message to everyone, the guilty and the innocent alike. If we get to the point where we sacrifice individuals just for the sake of movement optics, that’s where I get off the train.

Drum doesn’t elaborate, so it’s not clear exactly how he thinks “fairness” is at stake here. But it doesn’t seem clear to me that ‘fairness” is relevant to the debates people are actually having about what we should do in response to the revelations about Franken. Drum is correct that of course Franken deserves to be treated fairly, and liberal commitments properly understood compel us to do so. If Franken denied in some strenuous way that the events took place at all, the credibility and plausibility of the relative accounts should get fair consideration. (“Believe women” is a good general rule, but obviously shouldn’t be applied without some skepticism and wisdom when appropriate, as with, for example, the accusation against Blumenthal.) A demand for Fair treatment toward Franken might kick in as a concern if there was actual consideration of punishment; if what he did was determined to rise to the level of criminal conduct worthy of charges and prosecution, he should be treated fairly in all the ways defendants ought to be, and he should not be subject to any extra-legal punishments. Should he decide not to resign, any efforts to remove him from office against his will should follow their own rules and procedures. Perhaps I’m missing something, but that seems like the rough extent of fairness matters at stake here to me.

But if we’re considering the question of whether it’s reasonable for Franken’s feminist allies to call upon him to resign, or whether in some cosmic sense he “deserves” to lose his political career over this? I just don’t see fairness as an issue. No one “deserves” to be a Senator, and the rules for the distribution of this kind of political power (elections) are more properly understood as concerned with fairness to voters, not the elected. Furthermore, it remains true, and I imagine will continue to remain true even under the most successful hopes we might have for this moment of reckoning, that most men who harass, assault, and humiliate women will continue to be spared any serious consequences. There is no method of general procedural fairness to “loss of power and privilege” as a general matter. I suppose it might be nice if there was, but I’m largely unconcerned about that, and I don’t think it’s particularly important, since the distribution of privilege and power isn’t going to be “fair” in any case.

So the relevant question for me is the one Goldberg identified, more or less, although I don’t think she’s quite using fairness right. Those of us who want this moment to have the greatest chance at leading to a real social change have every right to ask, and pressure, Franken to do what will best contribute to that goal. Marcotte and Harding disagree on what that course is, but get this framing right. If he’s really an ally, he’ll do whatever that is, setting aside what he wants to do.

Stepping back a bit, I think the impulse to apply fairness where it doesn’t really make sense is a symptom of treating this as a moral issue. I don’t see it that way. Obviously, it’s a moral issue in the background sense that sexual harassment/assault/humiliation are morally wrong. But (while some people struggle to recognize this, sometimes perhaps authentically, sometimes through a kind of strategic moral incompetence) this really isn’t not meaningfully in question. It’s wrong but men do it anyway, because current forms of power designed to curtail bad behavior are insufficient. The question is, what can we do about that? Optimistically, the “Weinstein reckoning” is fundamentally about changing the balance of power between abusive men and their victims, by creating/enhancing a kind of social power that shifts that balance toward the victims, increases the risks and potential costs to harassers and abusers. Like all kinds of social power, it can and probably will be misused or abused, and we should be attentive to that. But it’s badly needed nonetheless.

It’s not ideal, of course. Research in criminal justice shows a much greater deterrent effect to a high likelihood of getting caught and a modest penalty, compared to low likelihood/large penalty, and it wouldn’t surprise me if a dynamic like that would be more effective in this case as well. But it’s not clear we’ve got access to a kind of social power that would create something like that, so this will have to do. It’s possible to imagine a fairer approach to stopping sexual harassment and assault, but a path toward actually implementing one. You fight for justice with the forms of social power you have, not the ones you wish you had.

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