The good and bad news about Brett Kavanaugh’s Supreme Court appointment

by Paul Thomas / 14 October, 2018
Brett Kavanaugh. Photo/Getty Images

Brett Kavanaugh. Photo/Getty Images

RelatedArticlesModule - Brett Kavanaugh us supreme court

The US political system is more divided than ever with the appointment of Brett Kavanaugh to the Supreme Court. The mid-term elections loom as the next round of bipartisan warfare.

There’s good news and bad news regarding Brett Kavanaugh’s elevation to the US Supreme Court. The good news is that the last time the US Senate confirmed a Supreme Court nominee who’d been accused of sexual misconduct – Clarence Thomas in 1991 – the vote was 52-48; Kavanaugh, though, secured a mere 50 votes. At this rate, the Senate could be debarring sexual predators from the highest court in the land by mid-century.

The bad news is that more than a quarter of a century after Anita Hill testified before the Senate Judiciary Committee that Thomas had sexually harassed her, the Supreme Court’s quota of male justices credibly accused of sexual misconduct has doubled. Given what’s transpired over the past couple of years, women of a slightly cynical disposition might conclude that the one-third ratio of male Supreme Court justices so accused seems about right.

This process was a travesty. In a less toxic political environment, the nomination would have been put on hold when Christine Blasey Ford came forward and a proper, unrestricted investigation undertaken. Or the White House would have looked at the bigger picture, withdrawn Kavanaugh’s nomination and put forward another candidate. After all, it’s safe to assume Kavanaugh isn’t the only Ivy League-educated, deeply conservative jurist in America.

Kavanaugh’s supporters claimed anything of the sort would be capitulating to the “mob”, as President Donald Trump and Republican leaders label those exercising their democratic right to protest. Henceforth, all males would be at risk of having their careers derailed by claims of impropriety, no matter how implausible or inconsequential.

But if, as Kavanaugh claimed, the campaign against him was a “calculated and orchestrated political hit, fuelled with apparent pent-up anger about President Trump and the 2016 election… and millions of dollars from outside left-wing opposition groups”, then surely a thorough FBI investigation would have uncovered evidence of that. Kavanaugh would have been vindicated and those who campaigned against him exposed as character assassins exploiting the fraught post-#metoo climate.

Christine Blasey Ford. Photo/Getty Images

Christine Blasey Ford. Photo/Getty Images

The “it was long ago and boys will be boys” defence is also problematic. I don’t recall anyone saying “it was long ago and priests will be priests” in response to claims of sexual abuse levelled at the Catholic Church. Well, apart from the odd archbishop.

And we’re talking about an appointment for life to a vital institution, a body that can strike down legislation, thwart presidential directives and shape the society and culture. Thomas has been on the court for 27 years. His most notable distinction is that between 2006 and 2016, he didn’t utter a single word in oral arguments. In the Coen Brothers’ film Intolerable Cruelty, George Clooney, playing a divorce lawyer who delights in mind games, tells a rival lawyer’s client, “Not to worry, Mrs Rexroth, you’re ably represented. I’m sure Freddy’s just too modest to tell you he used to clerk for Clarence Thomas.” It’s what’s known as a “laugh line”.

Stoking the fires

The problem with Kavanaugh went beyond the accusations of sexual misconduct. His own testimony to the judiciary committee should have disqualified him. It was a grotesque performance, veering wildly from tears to stridency, sentimentality to bitterness, good-old-boy-next-door to partisan spear carrier.

Retired Supreme Court judge John Paul Stevens felt Kavanaugh showed he wasn’t qualified to sit on the court and revealed prejudices that would make it impossible to do the court’s work.

Robert Post, a former Dean of Yale Law School, from which Kavanaugh graduated, described the testimony as “a witches’ brew of vicious, unfounded charges” that “stoked the fires of partisan rage and male entitlement”. Kavanaugh, he said, would join the court as an “embodiment of raw partisan power inconsistent with any ideal of an impartial judiciary”.

It would be drawing a long bow to suggest only Republicans play politics with Supreme Court nominations, or that Kavanaugh and Thomas have been the only nominees with skeletons in their closets.

Brett Kavanaugh. Photo/Getty Images

Brett Kavanaugh. Photo/Getty Images

In 1937, Democratic President Franklin Roosevelt tried to “stack” the court with extra judges to overcome the conservative majority’s resistance to his “New Deal” programme of public works, financial reforms and regulations. When that failed, he vowed to nominate a “thumping, evangelical New Dealer” at the earliest opportunity. The nomination of Alabama Senator Hugo Black became contentious because of rumours that he was or had been a member of the Ku Klux Klan. No conclusive evidence was forthcoming and Black was duly confirmed. He later admitted that he had been a Klan member but had cut ties in 1925. Black went on to become the fifth longest-serving Supreme Court justice, establishing a reputation as a champion of liberal causes and human rights.

But Kavanaugh went rogue. Taking his lead from Trump, he abandoned any pretence of being an above-the-fray jurist and pitched himself to the angry white male base. As populist mantras go, his “I like beer” is up there with “make America great again”.

What effect will it have on the November 6 mid-term elections? Republicans believe the pitched battle has both frightened and encouraged their supporters. Senate majority leader Mitch McConnell sarcastically thanked the “mob” for doing what the Republican leadership was having trouble doing: “energising our base”. Democratic pollster Celinda Lake countered that “anger always lasts longer than happiness” while posing a question sports coaches would have no trouble answering: “Does winning lead to energy or does it lead to complacency?”

In wider terms, the affair reinforces the grim truth that the middle ground in American politics is disappearing like a low-lying Pacific atoll. Republicans from the President down view politics as a cold civil war rather than the means of managing society’s inevitable conflicts and divisions to provide the greatest good for the greatest number.

Afterwards, a few politicians issued desultory pleas for healing. That seems fanciful with Trump in the White House and Kavanaugh potentially sitting in judgment on Roe v Wade  – a woman’s right to choose – and whether a president can commit obstruction of justice. Post’s bleak conclusion appears more realistic: “There will be hell to pay.”

This article was first published in the October 20, 2018 issue of the New Zealand Listener.

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