Saturday, October 6, 2018

On the confirmation of Supreme Court Justice Brett Kavanaugh

Peter Beinart wrote in The Atlantic on Sept. 27, 2018: "It’s remarkable: The more women accuse of Brett Kavanaugh of sexual misconduct, the more committed to his confirmation conservatives become." It's illogical, he pointed out, since

even if you consider these newer allegations less credible than the initial charge by Christine Blasey Ford, how can they make you more committed to Kavanaugh’s nomination? Assign a percentage chance that Swetnick’s accusations are true, a percentage chance that Ramirez’s charges are true, and a percentage chance that Ford’s allegations are true. Taken together, the additional charges make it more — not less — likely that Kavanaugh committed sexual misdeeds.

The answer to this puzzle is Trumpism. Trumpism, at its core, is a rebellion against changes in American society that undermine traditional hierarchies. It’s based on the belief that these changes, rather than promoting fairness for historically oppressed groups, actually promote 'political correctness': the oppression of white, native-born Christian men.

One of the Republican fears, as Beinart explains, is that Kavanaugh's confirmation is a sort of litmus test for whether and how men still hold power. If Kavanaugh has to answer for the accusations against him, many more men may be knocked off their pedestals, too — and Republicans simply will not let that happen. Republicans also fear that liberals are winning the culture wars and that "conservatives are now called bigots for opposing gay marriage — for retaining a view that was mainstream and bipartisan not long ago." If accusations against Kavanaugh are the beginning of a new standard, it explains "why the new charges are making many conservatives more devoted to Kavanaugh, not less." Each new allegation is an opportunity to surrender, which would make future battles more difficult; they prefer to hold their ground each time. He said:

Liberals fear that if they lose the Kavanaugh fight, minorities, women, and the poor will lose basic rights. Conservatives, by contrast, fear a kind of cultural delegitimization — a liberal rewriting of America’s moral code so that conservatives are forever deemed too sexist or racist to hold jobs like associate justice of the Supreme Court.

Rachel Reilich wrote on Sept. 28, 2018:

I believe Dr. Ford visibly struggles to hide her feelings because she needs to protect herself: she is, at heart, a person in pain.

In contrast, Judge Kavanaugh, has little trouble blubbering on the stand. He is not someone defined by pain, but rather someone who’s had a bad couple weeks. His primary emotion, revealed through gritted teeth and mottled cheeks, is anger. Not pain. Rage. That classic defense against shame.

During Kavanaugh's confirmation hearing, Sen. Amy Klobuchar, D-MN, asked Brett Kavanaugh if he had ever blacked out after drinking alcohol. He didn't answer the question, and twice tried to turn the question back at her.

"Was there ever a time when you drank so much that you couldn't remember what happened or part of what happened the night before?"
"[hemming and hawing] Now, I remember what happened and — I think you've probably had beers, Senator? and, so —"
"So you're saying there's never been a case where you drank so much that you didn't remember what happened the night before or part of what happened?"
"It's — you're asking about, yeah, blackout, I don't know — have you?"
"Could you answer the question, Judge? I just — so, you, that's not happened? Is that your answer?"
"Yeah, and I'm curious if you have."
"I have no drinking problem, Judge."
"Yeah, nor do I."

Robert Post, the former dean of Yale Law School where Kavanaugh received his law degree, said that Kavanaugh has been "a casual acquaintance" of his for a decade and that he listened to Kavanaugh's confirmation hearing "with something approaching unbelief."

With calculation and skill, Kavanaugh stoked the fires of partisan rage and male entitlement. He had apparently concluded that the only way he could rally Republican support was by painting himself as the victim of a political hit job. He therefore offered a witches’ brew of vicious unfounded charges, alleging that Democratic members of the Senate Judicial Committee were pursuing a vendetta on behalf of the Clintons. If we expect judges to reach conclusions based solely on reliable evidence, Kavanaugh’s savage and bitter attack demonstrated exactly the opposite sensibility.

I was shell-shocked. This was not the Brett Kavanaugh I thought I knew. Having come so close to confirmation, Kavanaugh apparently cared more about his promotion than about preserving the dignity of the Supreme Court he aspired to join.

Post added: "For as long as Kavanaugh sits on the court, he will remain a symbol of partisan anger...No one who felt the force of that anger could possibly believe that Kavanaugh might actually be a detached and impartial judge." Indeed: "His very presence will undermine the court’s claim to legitimacy; it will damage the nation’s commitment to the rule of law."

Kavanaugh's performance at his own confirmation hearings generated 83 ethics complaints, which "a specially appointed federal panel of judges" decided they had to dismiss all the complaints because, "while the complaints 'are serious,' there is no existing authority that allows lower court judges to investigate or discipline Supreme Court justices." In other words, they didn't believe they actually had the authority to do the thing they were appointed to do. "That is, in part, because the Supreme Court was established by the Constitution, while the lower courts were established by Congress. Some reformers have long urged Congress to enact a code of conduct for the Supreme Court and to put in place some sort of disciplinary mechanism short of impeachment."

The following January, Democrats introduced the "For the People Act" which would have instructed the creation of a code of conduct (albeit an unenforceable one). It passed the Democratic-controlled House along party lines and did not come to a vote in the Republican-controlled Senate.

The satirical magazine The Onion joked that, for many men, the Kavanaugh hearing has "dredged up painful denial-related memories, [and] experts urged the U.S. populace Monday to be extra sensitive to those men who are currently being forced to relive the trauma of wanting a thing but not automatically getting that thing."

The vote by the Senate Judiciary Committee to confirm Kavanaugh can be viewed here.

Immediately after Sen. Susan Collins delivered a speech explaining why she would vote to confirm Brett Kavanaugh to the Supreme Court, Mark Joseph Stern wrote for Slate:

"The Republican senator declared herself undecided until the last possible minute, but it now appears that this very public ambivalence was a charade. Collins’ address started as a bad-faith attack on Democrats, then transformed into an astoundingly naïve defense of Kavanaugh’s jurisprudence. It concluded with a condescending sop to Christine Blasey Ford, who accused Kavanaugh of sexual assault, suggesting that she’d misidentified her alleged assailant. The speech might as well have been written by Mitch McConnell and Ed Whelan. It was an embarrassment and a travesty."

Stern made the following key points in his article.

He explained that "the Judicial Crisis Network, a dark-money group funded largely by a single anonymous donor" which previously spent $7 million to oppose Obama's Supreme Court pick Merrick Garland (who was never confirmed) and $10 million to support Trump's pick Neil Gorsuch (who was confirmed), just spent $12 million to support Kavanaugh. The liberal organization Demand Justice, by contrast, spent only $5 million to oppose Kavanaugh. Thus, he says, Sen. Collins was "hypocritical" to complain about the political opposition to Kavanaugh.

Kavanaugh ruled that religious employers could limit their employees' access to contraception (Priests for Life v. HHS). Collins presented this ruling as a political compromise, which Stern believes to be an inaccurate description, as it delivered to religious conservatives "everything they wanted." Kavanaugh also sided with the Trump administration said that a judge's permission wasn't enough to allow an undocumented minor in federal custody to have an abortion (Garza v. Hargan), indicating that he may not follow precedent on abortion rights.

Some Republican-appointed Supreme Court Justices, like David Souter, have supported Roe v. Wade. But that, Stern explains, is exactly "why the Republican legal establishment’s refrain is 'No More Souters.' It’s why the Federalist Society created a network of conservative lawyers unified by their opposition to Roe. It’s why Donald Trump, who campaigned on overturning Roe, outsourced judicial nominations to the Federalist Society. And it’s why Kavanaugh, a Federalist Society loyalist, was selected for this seat." Sen. Collins' expressed hope that Kavanaugh will be one of the Republican appointees who supports Roe is thus disingenuous.

WATCH: Kavanaugh's statement in late September 2018 responding to accusations of sexual assault, described by some as a "tantrum."

WATCH: Collins' speech on Oct. 5, 2018 saying that she will vote to confirm him.

Brandi Miller, a campus minister and justice program director, published an opinion column on Oct. 7 that said:

This has been a week of tantrums. The last 10 days have been a picture of what it looks and feels like when white men in positions of power feel themselves threatened by a loss of the authority they feel entitled to....The past few days (years, really) may symbolize a battle lost for people who are hoping to dismantle white supremacy (and its commitment to patriarchy) and move toward a reality where the rights of women and nonbinary folks, people of color and people at the intersections matter. It seems that the more angry and petulant that powerful white men become, the more they get what they want....When the vision of white-male-dominated America is thwarted or threatened in any way, the backlash is nothing short of desperate and infantile. They’ll do whatever it takes to maintain control over their way of life, even if it means putting unqualified and equally petulant people in positions of power. CNN’s Van Jones called this phenomenon 'whitelash.'

A Boston Globe editorial on Oct. 7, following Kavanaugh's confirmation, said that "the ugliness of the last two weeks will be litigated again in the midterm elections Nov. 6. Democrats and Republicans are spinning very different narratives about what just happened in Washington, and voters will, in a sense, be asked to pick which reflect the values of Americans." It added: "The [Republican] party has convinced itself that it’s tapping into a national unease with the #metoo movement, a fear that it has become, as they say, a witch hunt. It cannot have been an accident that the party trotted out Susan Collins, the political heir of Margaret Chase Smith, to defend Kavanaugh in her climactic speech Friday afternoon, as if to liken the allegations to McCarthyism."

2022 update: when the Supreme Court's draft decision on abortion, one that would overturn Roe v. Wade if it were finalized, was leaked, Susan Collins released a statement in what appears to me to be feigned surprise: "If the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office."

In a June 24, 2022 statmeent, Collins said the SCOTUS's overturning of Roe was "inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me..."

No comments:

Post a Comment

In case you missed it

Have you seen inside the book 'To Climates Unknown'?

The alternate history novel To Climates Unknown by Arturo Serrano was released on November 25, the 400th anniversary of the mythical First ...