In a truly just world, Brett Kavanaugh would not be confirmed to the U.S. Supreme Court for so many reasons. While the “he said – she said” conflict between Judge Kavanaugh and Dr. Christine Blasey Ford is stealing center stage, there are countless reasons why the process is flawed. Not the least is that Dr. Ford is already receiving the Anita Hill Treatment from many Republican Senators, both on the Judiciary Committee and in the rank and file.
Let’s deal quickly with this issue. It is possible that what Brett Kavanaugh “remembers” (which seems to be nothing) more accurately describes what happened between him and Christine Blasey thirty-six years ago than what she recalls (being attacked; experiencing trauma; and carrying it with her for the intervening years). It’s possible but far from a certainty.
Suppose that there are no credible witnesses. Is the winner Kavanaugh because (a) he’s a male, (b) he’s a Republican and that party holds the moral high ground, (c) his supporters like Orrin Hatch and Charles Grassley are more righteous? Or is the “winner” Dr. Ford because (a) she does not have the extensive history of shading the truth as Kavanaugh has revealed in the hearings for his nomination, (b) women are more believable than men, (c) in the history of these kinds of disputes, the man has been believed far more than the woman, and (d) it’s payback time for what happened to Anita Hill in the Clarence Thomas confirmation hearings.
Hard to tell. Maybe an FBI investigation will turn up incontrovertible evidence. Maybe the questioning of Kavanaugh and Dr. Ford before the Committee will trip up one or the other. If we have to go by a “feeling in the gut,” I would say that the safe thing to do would be to side with Dr. Ford because the consequences of having two sitting members on the Supreme Court who have acted very inappropriately regarding sex is more than the country should have to bear. As said so eloquently by Anita Hill in an op-ed in today’s New York Times:
But, as Judge Kavanaugh stands to gain the lifetime privilege of serving on the country’s highest court, he has the burden of persuasion. And that is only fair.
Surely there is another conservative nominee who has not been charged with such and who may not have the same paper trail as Kavanaugh.
But let’s look at the broader picture of why this process is so flawed. What are we doing here? We’re selecting someone to sit on the Supreme Court of the United States? And what does he/she do? “Interpret” the laws made by extremely flawed individuals; our legislators in the federal, state and local legislatures. While there are some outstanding legislators, the nature of the job is that it attracts many who have excessive egos and who are comfortable asking for money with little to offer in return. That’s not the way in which healthy human beings interact with one another.
As a group, they are not the most qualified people we have in our society to fashion our laws. Yet we treat what they create as being sacrosanct and engraved in stone. The work of these legislators must be precisely interpreted. But what if what they made was crap, as often is the case. What do the judges do then?
If our judges are wise and capable, then their job should be to clean up the mess. That means more than interpreting what has been written. It means working to have our laws conform to the parts of our Constitution that promote democracy and fairness.
How do we know if a nominee is capable of helping us clean up legislative messes? It certainly is not from them providing bullshit like, “That is a hypothetical question and I don’t want to answer it because it’s a case that may come before the court.” Since nominees dodge most questions, we can only use conjecture to try to figure out what they support.
We need a system in which the nominees are fully vetted – and that information is available not only to the executive branch but also to Congress and ultimately to the American people. The nominees must be required to answer all questions, so we learn what their professed beliefs are.
Their skills in interpreting the laws are less important than their abilities to exercise common sense. That means being good at reasoning, having empathy and understanding irony and hypocrisy.
This system won’t change now. If we’re fortunate, Kavanaugh will not be confirmed and we’ll go through the same song and dance with the next nominee. But ultimately, we need to face reality and have Supreme Court Justices be individuals who have boots on the ground of the United States and who are more arbiters of fairness than presumed scholars of the law.