At the time of writing, two key Republican senators have expressed their intention to vote to confirm Judge Brett Kavanaugh in the Senate today. This culminates a lengthy, bitter, partisan debate over whether the United States Supreme Court nominee is suited to the job.
It’s easy for foreigners (myself being a Brit) to get lost in the rhetoric. Partisan. Conspiracies. Advice and consent. Murkowski. Collins. Flake. It’s a minefield. The key thing to remember is:
This is about so much. It’s about whether survivors of sexual assault are taken seriously in a world that normalizes male physical and sexual dominance over women, and silences those who speak out. It’s about white male privilege, and whether democratic power structures can ever reflect the range of people they represent. It’s about due process – what protections are owed to someone accused of sexual misconduct, particularly in the singular process of a US Supreme Court nomination. Do allegations of this kind equate to automatic disqualification, or disqualification after due consideration of each side’s story?
But most of all, this is about an embittered, embattled America. In this article, I will take you through some of the key events and concerns of this process.
The Sexual Assault Allegations
After consulting with her congresswoman, Chrstine Blasey Ford wrote a letter to Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee. The Committee was tasked with overseeing Judge Kavanaugh’s fitness to serve on the US Supreme Court, after he was nominated for the position by President Donald Trump. Ford’s letter stated that Kavanaugh had assaulted her at a party in the early 1980s when they were in high school. Ford wanted her identity to be kept confidential, but after a redacted copy of the letter was leaked to the press, with the media hunting its author, she decided to come forward.
On 27 September 2018, Ford gave testimony about the incident to the Senate Judiciary Committee. Kavanaugh appeared afterwards to deliver his searing denial, and posit his theory that Ford’s testimony was a “calculated and orchestrated political hit” by the Democrats. While Ford’s appearance was considered to be trustworthy, credible, and extremely moving, Kavanaugh was unhinged, angry, emotional, and lashing out at Senators (notably in his confrontation with Senator Amy Klobuchar about his drinking habits, which he subsequently apologized for).
Should Kavanaugh Have Been Disqualified Based on Ford’s Allegations?
First things first. Whenever people discuss the issue, the language used is riddled with legal terminology. Due process. Beyond a reasonable doubt. Presumption of innocence. These are great concepts, and certainly they should permeate our culture to endow it with a general sense of fairness. However, despite the courtroom-like optics of the Senate’s hearing, Brett Kavanaugh was not being tried for sexual assault. There was no chance of a prison sentence for him, let alone the bare bones of a criminal trial including the vast majority of material evidence and rights such as the right to remain silent or question the opposition.
Instead, Kavanaugh was being vetted throughout the Senate Judiciary Committee process on his suitability to hold a position of immense, almost unparalleled, power within American society. The US Supreme Court is the ultimate arbiter on legislation drafted by Congress (that is, as part of the Federal – not state – government). It decides what those laws mean and, unlike the British and New Zealand Supreme Courts, if it considers them to be incompatible with the Constitution, it can strike them down, rendering them meaningless.
Abortion, voting rights, the right to marriage, and gun control are all within the Supreme Court’s remit. It has the power to, for example, rule that abortion must be available without restrictions up to the end of the first trimester of pregnancy (as it did in the 1973 case of Roe v. Wade). It can rule that there is a constitutional right to carry a gun in the home for self-defense (as it did in Heller v. District of Columbia).
What’s more, US Supreme Court judges are appointed for life. This is unlike Presidents who are limited to two four-year terms. Justice Kennedy, who departed the bench to make way for candidates like Kavanaugh, served on the Supreme Court for 30 years. He ruled on gay-marriage (affirmatively), gun rights (expansively), and the juvenile death penalty (prohibiting it for under-18s at the time of the crime). The power wielded by a Supreme Court justice can affect everyone in the land.
So, Back to the Question, Is Kavanaugh Fit To Be A Supreme Court Judge?
The answer has to be no, for two main reasons.
First, as suggested above, Supreme Court Justices wield immense power over Americans, and they should therefore be collectively reflective of all Americans’ interests. Through his testimony and the information that came out in the process about his younger days, we see that – although clearly a bright guy – Kavanaugh comes from a world of privilege uncommon to most Americans.
His mother was a Circuit court judge and his father was an attorney. He attended the elite Georgetown Prep, where President Trump’s other successful Supreme Court nominee, Neil Gorsuch was also a student at the same time. Although, as he labored to tell us during the hearings, he “busted [his] butt in school” to get into Yale, and was “top of [his] class academically”, I, personally, would like to see some struggle. It seems to me like the path to his success was laid out from birth, and although it certainly required some tail-busting from Brett himself, his story pales in comparison to Justice Sonia Sotomayor, who grew up around an alcoholic father and a single mom in the Bronx when her father died aged 42.
While I don’t wish any ill against people with stable or affluent upbringings (in fact, this is a societal goal), I do wish that those deciding issues of critical importance in people’s private lives, and across society more broadly, had some personal experience with struggle (or at least that this attribute was valued in the process) and considered the issues from the perspective of those whom the law often does not favor.
Secondly, as many have pointed out, Kavanaugh’s performance in his testimony was wild, aggressive, and temperamental, leading to questions about whether he has a ‘judicial temperament’. I will leave it to former Justice of the Supreme Court John Stephens to explain why Kavanaugh’s partisan rant about a Democratic conspiracy is not good for the Court (the Supreme Court will have to decide issues involving the Democratic party and should be seen to be impartial), but let it be said that I think he lacks the appropriate judicial temperament (2,400 law professors agree). And for anyone trying to show that they are not the kind of person who is aggressive towards women or distrustful, his testimony was not the way to go about it.
This article leaves largely untouched the question of believing sexual assault survivors, mostly because that has been covered excellently elsewhere, and I hope news on this will keep coming through in the weeks, months, and years to come.
The takeaway here is that Kavanaugh is not the right person for this job. Yet he is being confirmed as I write this. This is a defeat for those who believe in adapting our institutions to reflect those they represent. For those who believe power should be exercised prudently, by those who show they can handle it.
But I like to think that the growing attention to and understanding around these issues highlight that change is coming. And ultimately that Donald Trump and his supporters themselves are the resistance. Resisting a tidal wave of collective energy from people who believe in the equality and humanity of each person, not a select elite at the top.