The past few weeks have been a tumultuous time on Capitol Hill with President Trump’s second Supreme Court nominee, Brett Kavanaugh, being accused of sexual assault. What ensued was a toxic, partisan battle over the highest court in the Land. Our contributors do an excellent job articulating whether or not they believe Brett Kavanaugh should be confirmed.
The Faireway Staff
Brad Saunders, University of Pennsylvania
Proposition: Brett Kavanaugh cannot be confirmed to the Supreme Court for multiple reasons unrelated to the serious accusations of sexual assault by Dr. Christine Ford and others.
If there was ever a time for a quick dose of civility, honesty, and dignity in American politics, now would be an opportune time. Brett Kavanaugh’s Senate confirmation hearings have been but the latest event to divide the country. It took only a few hours for the testimonies to devolve in to a partisan verbal brawl, the latest manifestation in America’s regression to political tribalism.
So much is being said about Brett Kavanaugh right now that it’s hard to parse fact from fiction, partisan rancor from concrete reality. It seems that every day, new stories are published. Even as I’m writing this, Republicans Susan Collins of Maine and Joe Manchin III of West Virginia have announced they will indeed vote for Kavanaugh, all but ensuring that his final confirmation vote this Saturday will be a success.
Americans are in a very difficult place: a “he said, she said” situation with the nation’s highest court resting in the balance for perhaps decades. She alleges, he denies. The allegations have not been corroborated, which of course does not mean the allegations are false or true — simply not supported by other evidence. So Americans must resolve whether a decades-old, uncorroborated, and denied (by the alleged perpetrator and the only other witness the alleged victim put at the scene) accusation is enough to disqualify a man with an otherwise distinguished public career from the Supreme Court. Americans must ask themselves if they want to live in a society where an accusation is enough to meet the burden of proof in either a criminal or civil matter. Or, for that matter, a job interview. Because ultimately, the Kavanaugh hearings aren’t a criminal case or even a civil lawsuit, but rather a hearing conducted on behalf of the public by our elected representatives.
None of this is to say that women shouldn’t be heard or their experiences ignored. I personally believe Dr. Christine Ford; I don’t think she has any ulterior motives or malice behind finally coming forward. However, as someone who respects the legal system, I have to accept that citizens are innocent until proven guilty, and that uncorroborated accusations aren’t tantamount to evidence. I have to acknowledge that people are bizarre, and sometimes people do weird things. If the same situation happened with Merrick Garland in 2016, I’m not so sure all the Democrats would be feeling the same way they do right now. It’s unfortunate, but most politicians show as much loyalty to agendas as they do to morals; when it comes down to it, both parties are trying to pack the courts. However, we need to get beyond that point. And that’s the reason I’m so opposed to Brett Kavanaugh: his blatant partisanship, as well as his views on executive power. So regardless of — or maybe in addition to — the accusations of Dr. Christine Ford, Brett Kavanaugh cannot be confirmed as the next Supreme Court Justice.
When Kavanaugh’s name first entered the news, he was notable for one reason: his writings on the indictment of a sitting president. Do not be misled. Many right-wing news outlets and media conglomerates are trying to muddy the water on Kavanaugh’s positions regarding executive power and privilege. In a 2009 Minnesota law-review article entitled “Separation of Powers During the Forty-Fourth Presidency and Beyond,” Kavanaugh recommends that while a president is in office, he/she should be immune to civil lawsuits, criminal investigation, or prosecution. Why? Because based on his experience as part of the Starr investigation in the late 90s, Kavanagh has come to believe that because “the job of the President is far more difficult than any other civil position in government… it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible” (Kavanaugh 1416). Having to answer to the very laws of the country that you govern would simply require to much time, attention, and energy of any sitting president. The hypocrisy and lack of logic is obvious but still startling in the audacity. In Kavanaugh’s mind, the president holds an executive position of power and has consequently superseded “the rest” of the citizens of America. As a disconnected sovereign, such a president has the ability to execute and enforce laws without being subject to any of them. Kavanagh has since dodged questions in this field, refusing to answer “hypotheticals” for Senators about how he would hande presidential subpoenas or a presidential self-pardon. To me, the very fact that Kavanaugh cannot take a stand on the president pardon himself is sufficient lack of legal reason to confirm him as a Supreme Court justice. His views regarding executive power imply a highly malleable view of the law that should be a red flag for any judicial nominee.
Kavanaugh’s party and ideological loyalties are my other main concern to his nomination. One of the cornerstones of America’s federal government is the separation of powers. Even though Supreme Court justices almost always have congruent political agendas, there is still the understanding that the Court stands, or should stand, as an apolitical and impartial interpreter of the laws. Kavanaugh’s testimony has demonstrated to many that he is incapable of serving in this capacity. From the opening of his testimony, Kavanaugh launched a tirade against Democrats, describing an organized effort to falsely smear his image, employing shady political tactics to conduct a “calculated and orchestrated political hit” (Kavanaugh Testimony). Kavanaugh continues on his diatribe for minutes, grandstanding on imposing proclamations like “you [Democrats] sowed the wind for decades to come. I fear that the whole country will reap the whirlwind” (Kavanaugh Testimony). Such language is unprecedented from a Supreme Court nominee.
Kavanaugh’s blatant abhorrence for Democrats implies a potential justice who would rule against any side in a case that he sees as part of a liberal agenda. Neil Gorsuch, Trump’s choice to replace Antonin Scalia, sided with the four other Democratic justices in favor of James Garcia Dimaya, who the government sought to deport after his second first-degree burglary conviction in California. With Kavanaugh, I have no faith whatsoever in his faith to the law above ideology.
A man who doesn’t believe that the president is accountable to the laws of the country he governs. A man who openly denounces entire political parties as the source of the country’s problems. This man is not qualified to serve on the highest court in our country, an apolitical and impartial institution that was designed to be unaffected by popular political currents.
Over 20 million people tuned in to watch the showdown between Ms. Ford and Judge Kavanaugh, but most didn’t need to. Whether or not one believed Ms. Ford or Kavanaugh did not depend on the sincerity of the testimonies or the evidence presented, but rather one’s political affiliation. Democrats believed Ford, Republicans believed Kavanaugh.
An FBI circus act later, and we are still where we began. No more FBI probes or hearings or deliberations will ever be enough for the left to admit they may be wrong. It is time to cut the crap and confirm.
America’s courts were founded on the belief that a person is innocent until proven guilty. This has fallen apart for charges of sexual misconduct. Some of this is justified – the nature of the crime itself makes it extremely difficult to produce evidence or witnesses even if the alleged incident occurred. It is unfortunately becoming more and more clear that judicial philosophy, political affiliation, gender, and socioeconomic background are becoming the litmus tests which the powerful courts of public opinion use to decide to whom they will extend the standard of “innocent until proven guilty.”
I do recognize that is important to the health of society to have a culture that believes survivors, or else no one would ever speak out. But there is a difference between supporting victims and destroying those that they accuse without validation of the story. Sexual assault and rape are heinous crimes to be sure, accusations of which cannot be taken lightly. Otherwise we will end up only cheapening and denigrating the severity of such a crime with unfounded allegations. Steps can be made to assess the truthfulness of accusations, even if it is impossible to ever know for sure. As Reagan would implore, we must “trust, but verify”.
I trust that Ms. Ford believes some incident occurs. I trust that this experience has been extremely painful for her and she is brave for speaking out. It is impossible, however, to verify her story. Without verification, we cannot act blindly on said trust. And despite countless opportunities to verify her story, she has been unable to produce anything more convincing than her own emotions.
Can we put someone on the highest court in the country if there are outstanding allegations against him? Yes, if the allegations have so little substance they are essentially noise. Without reasonable evidence, accusing someone of sexual assault is the same as pointing a finger and yelling angrily, and should be taken as seriously.
The legal profession is deeply concerned with the setting and following of precedent, and we ought to ask ourselves what kind of precedent will be set if the Senate fails to confirm Kavanaugh, which it was prepared to do before the Ford allegations come to light. Such a dramatic about-face based on unconfirmed accusations at a moment of great political convenience for the Democrats would be a dangerous precedent for future nominees from all parties.
This would set a precedent where political ploys overshadow actual qualifications for the job, where it will be permissible for genuine hesitations about character to turn into full-blown defamation, and where grandstanding Senators are only interested in sound bites for their imagined presidential campaigns. Put simply, the whole process will only get uglier and more partisan next time. The world’s greatest deliberative legislative body has caved to the will of the mob and party politics.
Perhaps you have other reservations about Kavanaugh. Perhaps you have no understanding of the Supreme Court and truly believe that they will overturn a precedent such as Roe vs Wade. Perhaps you are just afraid of a right-leaning court. All of these concerns could have been thoroughly debated and discussed if not for the inanity that has been these past couple weeks.
Supreme Court nominees do not owe us charisma, charm, or suave talking like politicians do. (We should be quite wary indeed of a judge with the public maneuvering skill and poise of a politician.) Supreme Court nominees owe us a razor-sharp intellect honed by years of legal experience, exceptional writing skills, commitment to a lifetime of a service to the country, and a consistently impartial attitude towards the facts of a case. Judge Kavanaugh has demonstrated all these latter qualities just as his predecessors before him.
Now, the left is simply out of time. Let’s stop playing political games in a court that our Founders did not intend to be an arena for such vociferous partisanship. It is time to confirm.