Kavanaugh’s Nomination Should Fail, But Not Necessarily For The Reasons You Think

Just now there is a fucktonne of writing being produced about Brett Kavanaugh’s assault of Christine Blasey Ford. Here’s one on FtB. Here’s another. You can read them and the thousands of others like them if you wish. I’ve read some. I’m not going out and seeking more, because I’m not convinced that Ford’s allegation, even if proved true in every detail, is the best reason to kill Kavanaugh’s nomination.

The story of Kavanaugh’s assault on Ford is a story all too common in high schools. The privileged asshats become entitled asshats. For many of the entitled asshats, their consistently gratified entitlement to things becomes so generalized that some of them believe that they have an entitlement to people. They act as if entitled to others bodies, enacting assaults and other horrors.

But here’s the thing: there really is a juvenile justice system for a reason. Quite a large number of those entitled high schoolers grow up to be reasonably moral and ethical adults. I shoplifted when I was 10 or 11. It was a phase that lasted all of about 2 weeks, but I shoplifted several times at 2 different stores. I was inspired to do so because there were few kids in my neighborhood my age to play with, and one I fell in with was, well, evil. He walked into a store and walked out – without paying – with an 8-pack of soda pop, not trying to hide it. I was, frankly, amazed. He was older. He told me to do it too, and I did. Then I did it on my own. There wasn’t any real reason to do it on my own, of course. A large part of it was simply fascination that this could be done at all. Of course, a couple times a shop keeper noticed, gave me hell and called my mom. I didn’t do it again.

The fact that I shoplifted and learned a lesson from it is not evidence that I wouldn’t be a good candidate for the Supreme Courts of either Canada or the US. (There’s plenty of other evidence to prove that.) Likewise, if Kavanaugh was able to stand up and say,

I absolutely assaulted someone when I was 17. I can have others testify that I spoke with them about this later, disturbed at my own behavior. I welcome the committee’s questions about this so that they can understand how this incident and how, not despite but because of its criminality, convinced me of the importance of enacting justice into law, especially through fair treatment of those who commit crimes while still minors.

then it might turn out that Kavanaugh’s assault of Ford had become a reason to vote for Kavanaugh’s confirmation. Instead, Kavanaugh and the White House have floated several defenses:

  1. I never did any of that/Bitches be lyin’.
  2. Every guy does that. Haven’t you all attempted rape at some point? Guys? Guys? and, of course,
  3. If you strike Kavanaugh down, Trump’s new nominee will become more conservative than you can possibly imagine.

Yeah, none of those show any reason why someone should be granted lifetime tenure on SCOTUS. But even as badly as their current handling of Ford’s story might be, it’s not the primary reason (in my mind) that Kavanaugh’s nomination should be rejected.

Kavanaugh lied in his past confirmation hearings, when he was nominated to a lesser judgeship. He appears to have lied in this confirmation hearing as well. Even the appearance of having lied under oath to the committee, provided it is credibly based, not pure spin, should be more than sufficient reason to reject a nomination. Asserting that Kavanaugh should be confirmed simply should not have been a reasonable position to take last week even before Ford’s story became widely known.

As important as the issues of rape and sexual assault are, I believe that given the right circumstances (which aren’t present in this case, btw) I might be unwilling to condemn, possibly even unwilling to criticize, senators for voting for a nominee who committed a crime while under 18. If you’re being nominated to a federal judgeship, however, and you lie in your fucking confirmation hearings, there should be no coming back. The ability of the judiciary to function at all absolutely requires a level of trust that the fix is not in, that each party has a fair shot to argue their case and then to succeed or fail according to the best and most reasonable application of the law that an educated, qualified judge can make. If the judges themselves are willing to lie under oath, then we can’t trust that they will exercise their discretion in a manner that is constrained by the law. They did not, after all, constrain their testimony as required by law.

So then what? We are not a nation of lawyers. The lawyers have an interest in you being a satisfied customer, so even if you lose they are likely to say that you had a good case. How, then, will the losers rationalize their losses? And how will they do so if it becomes known that their judges are perjurers whom the senate voted to confirm despite their lawlessness?

I don’t have faith in the judicial system: I have too much knowledge about the judicial system to have anything like what might be called faith. But I do have a trust that the judicial system will act in certain ways (many I think are good in the context of a modern democracy, some I’m willing to criticize) that is based on evidence. A confirmed judge will be treated in public as equal in legitimacy to any other confirmed judge. The judiciary can hardly do anything different, even if it is well known that the judge lied during a confirmation hearing. The senate thus risks putting US judges and other SCOTUS justices in an impossible position: they must pretend that a sitting Justice Kavanaugh is not tainted, and that his rulings are as legitimate as those of any other justice. The populace, however, will not be so constrained. They will see the defenses of Kavanaugh as dishonest. The Old Ben response,

what I told you was true… from a certain point of view

can only make things worse for a large number of USAmericans. There will, of course, be those loyal to Kavanaugh, defenders of his position and legitimacy. But these will be deeply partisan persons, by and large. And that will lead to an even more explicitly politicized court.

The USA cannot stand to further undermine the legitimacy of the federal judiciary. JFK said, “Those who make peaceful revolution impossible will make violent revolution inevitable.” He was discussing how the wealthy and privileged can destroy the social fabric that makes peaceful coexistence possible. And he was right. In the USA Southern white racists murdered men who sought only to register people to peaceably vote. They bombed churches where people peaceably assembled to talk about justice and social integration. And while the committed activists for justice largely remained peaceful, there arose other activists groups, much smaller, who made a deliberate choice to fight for justice violently. More telling, riots arose in cities across the US and continue today.

As in Baltimore, as in Los Angeles, as in Fergusson, the most serious of these occur when the public lose hope that justice can be peacefully achieved. Make no mistake: Kavanaugh’s confirmation, should it occur, threatens more of this tragic same in the future of the US.

I don’t mind if what motivates you to call your senator is Ford’s story, but whatever motivates you, if you are a US citizen call your senator today. The threat to peace inherent in the installation of a lawless judiciary is too great to allow this nomination to be confirmed.



  1. fledanow says

    You’ve stated beautifully what I’ve been garbling about in those insane moments when I take a peek at the happenings south of the border. Congress’s partisan abrogation of any duty to the good of the country is frightening. Its partisan purchase of the highest court in the country is terrifying. When Congress openly ignores simple honesty as a criterion for choosing a Supreme Court judge, well, there goes your whole system of justice, and of checks and balances. I have snorted at the hypocrisy of politicians who support putting teenagers in prison for life nevertheless arguing their current golden boy’s teenaged crimes should be forgiven, but at least that attitude is in line with science, if only for a brief moment and all the wrong reasons. I can’t snort at this. I have no idea how the USA can come back from here.

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