The Broader Implications of the Kavanaugh Appointment

Rational discussion of the larger context has been crowded out by the circus surrounding Brett Kavanaugh’s appointment to the United States Supreme Court.

To briefly summarize, Kavanaugh was nominated by President Trump on July 9th. Two months later, as the confirmation process was winding toward a conclusion, Christine Blasey Ford accused Kavanaugh of sexually assaulting her at a house party in 1982 when she was 15 and he was 17.

Ford was a credible witness at the Senate committee. Kavanaugh was intense in his denial and inappropriately partisan in his other remarks. He acknowledged a fondness for beer.

Two other accusers appeared. Julie Swetnick was reporting rumours. Deborah Ramirez also accused Kavanaugh of sexual assault. Strenuous efforts by media outlets failed to uncover corroboration of either accusers’ claims.

Trump, whose credibility is even more suspect than usual on this topic, weighed in that “Brett Kavanaugh is one of the finest human beings you will ever have the privilege of knowing or meeting.”

All of the events are alleged to have occurred about 35 years ago. Conspicuous in their absence were accusations of improprieties since then. This is not to absolve Kavanaugh, but he does not belong in the same category as serial offenders like Bill Cosby and Harvey Weinstein.

At the insistence of Republican Senator (and no fan of Trump) Bob Corker, the FBI was asked to investigate the matter. Both the timeframe and mandate of the FBI were constrained. They did not come up with anything new.

Kavanaugh was confirmed by the Senate in a 50-48 vote. One Democrat supported him. One Republican did not, but abstained as a courtesy to offset another Republican who was absent, attending his daughter’s wedding.

It may be that some of the Senators found Ford more credible than Kavanaugh, while others felt the opposite. It may be that some Senators, mindful of their own indiscretions when they were 17, did not feel that the accusations, even if true, were a reason to disqualify the candidate.

What is exceedingly unlikely is that the outcome of thoughtful deliberations coincidentally splits almost exactly along partisan lines. These were not dispassionate responses to the available facts.

The Democrats are strongly opposed to any appointment that will tilt the balance of opinion on the Supreme Court in a more conservative direction. They are particularly concerned about risks to the Roe vs. Wade decision, which protects women’s right to abortions. It is unlikely that their votes would have differed much in the absence of Ford’s allegations.

The same issue polarizes Republicans in the opposite direction. This is the top issue for the evangelical base, and an ideal topic to energize supporters for the November midterms.

It is instructive to look further back in the history of Senate confirmation votes for Supreme Court justices. There was a time when the process was rather more collegial.

Anthony Kennedy, who was replaced by Kavanaugh, was nominated by Republican Ronald Reagan and approved 97-0 by a Democratic majority senate. Antonin Scalia, also nominated by Reagan and replaced last year by Neil Gorsuch, was approved 98-0. Other nominees were typically approved by wide bipartisan majorities.

An important exception was Clarence Thomas who was narrowly approved 52-48 after serious allegations of sexual harassment by his former employee Anita Hill.

Things have become more partisan. The real villain in the piece is Republican Senate Majority Leader Mitch McConnell. On Feb 13, 2016, the very day that Justice Scalia died suddenly, McConnell announced that no nominee by President Obama would be considered by the Senate until 2017, after the elections.

Obama nominated Merrick Garland, a well-regarded centrist, but McConnell refused to budge. Having delayed consideration of Garland by almost a year, he would not allow an extra week or two for a proper investigation of Ford’s accusations against Kavanaugh.

The presidency has already become crassly partisan under Trump. So have the House and Senate. McConnell’s actions have cemented the transition to a world where partisanship considerations outweigh judicial eminence in Supreme Court nominations.

This adds to the conspicuous gerrymandering of voting boundaries by both parties, serious efforts to suppress minority voting by Republicans, and the unrestricted and outsized impact of big money donors on both the primaries that select party candidates and the subsequent election contests.

Each of these developments weakens America’s democracy. Americans view Washington with contempt. Fewer than 20% of them feel that Congress is doing a good job.

The United States has been the biggest champion of democracy since the Second World War. The example they are now displaying is not worthy of emulation.


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