According to several sources, Republicans not only have the votes to confirm Brett Kananaugh, a couple of Democrats may even join their ranks. If true, that’s amazing, and also the most encouraging piece of news I’ve heard since Aaron Judge went on the Disabled List.
I don’t have any special fondness for Brett Kavanaugh, and I have no stake in his confirmation. All I have ever cared about is having outstanding, smart, analytical judges on the Supreme Court. I was thrilled when President Obama nominated Elena Kagan, who fits that description; depressed when he appointed touchy-feely mediocrity Sotamayor, lowering the quality of judicial talent so he could check off a diversity box, but then, that’s Obama. Justices like Blackmun, Souter and Kennedy, all appointed to skirt controversy rather than to ensure a competent Court, do subtle, long-lasting damage to our laws. Aggressive, thoughtful, brilliant jurists like Scalia and Ginsberg keep the third branch of government strong. Kavanaugh is undeniably the kind of qualified, experienced judge who has always been routinely confirmed by the Senate regardless of the President nominating him or his party affiliation. What the Democrats and their allies among activist and the news media have done to Brett Kavanaugh is more than wrong; it is very dangerous, and threatens further the basic comity and respect without which no democracy can function. The treatment of Kavanaugh, which I have discussed in detail elsewhere—the demonizing, the fear-mongering, the character assassination, based purely on an unremarkable judicial philosophy—continues down a slippery slope, already greased by “the resistance,” that ends in civil war. The Democrats will only turn away from this disastrous path when they conclude that it won’t work, that the American public rejects “the ends justify the means” as an operating strategy. There are signs that the Democratic Senators televised conduct during the Kavanaugh hearings may be a tipping point. I hope so. I’ll believe it when I see it.
Nothing much has changed in my assessment since I wrote this post ten days ago. I still don’t believe or disbelieve Ford or Kavanaugh. There is no basis on which to believe either of them, but the accuser has the burden of proof, and as was true ten days ago, she can’t meet it and didn’t meet it. Nobody confirms her account. She cannot provide specifics, even as to where the alleged attack occurred, who held the party where it allegedly occurred, or an exact date, making investigation nearly impossible. Her parents, who are alive, have not confirmed her account; apparently she didn’t even tell them about the incident. Her testimony was convincing. So was Kavanaugh’s. Those who say “they believe” either party might as well have a “Bias has made me stupid” sign on top of their head. In yesterday’s New York Times, a full page ad listed thousands of names of men proclaiming “We believe Anita Hill. We also believe Charistine Blasey Ford.” All they are doing is virtue signaling for their pals, proclaiming their partisan affiliation (believing Ford is required to save abortion, and depending on which hysterical activist or pundit you listen to, female suffrage, gay marriage and the continued abolition of slavery), and or proving that they lack the power of critical thought.
I’ll have to sort through all of the logical fallacies used against Kavanaugh later: I’m sure a new rationalization for the list or twelve is in there. For example, I have been told and read that women believe Ford because they know other victims of sexual assault who never reported it. But that doesn’t justify believing Ford! It indicates that the fact that she waited all this time, until evidence was gone and memories faded, to suddenly make her accusation when it was most politically useful to her party doesn’t prove she isn’t telling the truth, but it doesn’t make it any more likely that she is, either. A commenter yesterday suggested that there should be more sympathy and accommodation for victims who are afraid to come forward soon after a sexual assault. “I would like to remind you that women often are not able to speak out against harassment until long after the fact because they are afraid and unable,” she wrote. I replied,
Then they lose their chance. There are a lot of things in life like that. If I’m reluctant to speak up and challenge a mob harassing a US Senator while he’s dining with my family, I can’t wait 20 years and do it then, can I? If you are afraid to report a community criminal when you have evidence against him because you’re afraid to snitch, it’s no mitigation to report the evidence after more people have been hurt because of your delay. How about women who don’t stop their boyfriends from sexually molesting their children because they are afraid? Is it acceptable that they wait until the Statute of Limitations has run, the damage has been done, and the kids are grown and molesting children themselves before they speak up?
You don’t have to remind me of the dilemma. I’m sorry, but I am really sick of this argument…It’s an excuse and a rationalization. It makes fairness and due process impossible, and it allows false accusers to manipulate others. Three decades? Holding a complaint until the exact moment when it can’t be defended against AND will do the most damage?
It’s explainable, perhaps, but it isn’t ethically excusable.
The “Survivors should be believed” mantra is per se unethical—dishonest, contrary to basic principles of justice, illogical, bigoted and unfair. To begin with “survivors” falsely rigs the question: if the accuser is lying, like “Mattress Girl,” or Wanetta Gibson, or the Duke LaCross accuser, or “Jackie,” the anonymous alleged gang rape victim who commend Rolling Stone ,she’s not a survivor. She’s a liar, or deluded. Second, no accuser should ever be believed without actual evidence, and the proposition that women have a special right to be believed without any is flat out sexist bigotry against men.
[Digression: speaking of sexist bigotry, the New Yorker—nah, there’s no mainstream media bias!–published this monstrosity, “Brett Kavanaugh and the Adolescent Aggression of Conservative Masculinity” by Alexandra Schwartz. Ann Althouse does a nice defenestration of the author and this piece of sexist offal, so I don’t have to.]
As for hypocrisy, it is astounding that Democrats have the cojones to take this cynical pose after nominating Hillary Clinton, after using its 2012 convention to lionize Bill Clinton, with Juanita Broaddrick at the Kavanaugh hearings, and as the party is pretending that the DNC co-chair, Keith Ellison, hasn’t been credibly accused of domestic abuse. You would think that the news media would make an issue of–no you wouldn’t. What was I thinking?
There were two Ethics Heroes yesterday, and if somehow this attempt to warp basic principles and traditions of American justice and fairness is decisively defeated—and by that I mean that such tactics become taboo, not that Kavanaugh is confirmed—all Americans will owe both of them a debt of gratitude.
The first is Senator Lindsey Graham. This was a true Joseph Welch, “Have you no sense of decency?” moment, and desperately needed. Graham was the perfect messenger, too: a moderate conservative, often attacked by the hard-right because he believes in bi-partisanship, well-liked and respected on both sides of the aisle, a lawyer, and an established truth-teller. For him to use as strong terms as he did in condemning his colleagues’ conduct was remarkable. The anti-Trump, biased news media and its pundits are calling Graham’s performance a rant. It was no rant; it was a coup de gras. Read the whole thing here. A sample:
Graham: Are you aware that at 9:23 pm on the night of July the 9th, the day you were nominated to the Supreme Court by President Trump, Sen. Schumer said 23 minutes after your nomination, “I’ll oppose judge Kavanaugh’s nomination with everything, I hope a bipartisan majority will do the same. The stakes are simply too high for anything less.” If you weren’t aware of it, you are now. Did you meet with Sen. Dianne Feinstein on August 20?
Kavanaugh: I did meet with Sen. Feinstein.
Graham: Did you know that her staff had already recommended a lawyer to Dr. Ford?
Kavanaugh: I did not know that.
Graham: Did you know that her and her staff had this allegations for over 20 days?
Kavanaugh: I did not know that at the time.
Graham: If you wanted an FBI investigation, you could have come to us. What you [Democrats] want to do is destroy this guy’s life, hold this seat open and hope you win in 2020. You’ve said that. Not me.
You got nothing to apologize for. When you see Sotomayer and Kagan, say hello because I voted for them. I’d never do to them what you’ve done to this guy. This is the most unethical sham since I’ve been in politics and if you really wanted to know the truth, you sure as hell wouldn’t have done what you’ve done to this guy. Are you a gang rapist?
Graham: …This is hell. This is going to destroy the ability of good people to come forward because of this crap. Your high school yearbook. You have interacted with professional women all your life, not one accusation. You’re supposed to be Bill Cosby when you’re a junior and senior in high school. And all of a sudden you got over it. It’s been my understanding that if you drug women and rape them for two years in high school, you probably don’t stop.
Here’s my understanding. If you lived a good life, people would recognize it like the American bar association has the gold standard. “His integrity is absolutely unquestioned. He is the very circumspect in his personal conduct, harbors no biases or prejudices. Entirely ethical. Is a really decent person. Is warm, friendly, unassuming. He’s the nicest person.”
…One thing I can you should be proud of: Ashley, you should be proud of this. That you raised a daughter who had the good character to pray for Dr. Ford. To my Republican colleagues, if you vote no, you’re legitimizing the most despicable thing I have seen in my time in politics.
…I hope you’re on the Supreme Court. That’s exactly where you should be. And I hope that the American people will see through this charade. And I wish you well. You well. And I intend to vote for you, and I hope everybody who’s fair minded will.
The other hero was Kavanaugh, who also evoked memories of Welch ripping the mask of respectability from Joe McCarthy. The late Robert Bork sat back and took the lies and insults Ted Kennedy and other Democrats used to paint him as some kind if a judicial Satan, confident that he would be confirmed after some symbolic grandstanding. He was wrong. Clarence Thomas escalated a bit, using one flash of anger and the perfect phrase to de-fang the late attack on his character, calling it a “high tech lynching.” Kavanaugh isn’t black like Thomas, however, and his righteous indignation, if it was going to be effective, had to be more extensive, pointed, passionate, and tough. Did he regard it as a necessary tactic to save his nomination and good name, or did he understand that much more was at stake? I don’t know. I also don’t know if it was enough. I hope so. Everyone should hope so.
If it was, Judge Kavanaugh will deserve a place of honor in American history for exposing, and defeating, one of the ugliest and most corrosive breaches of political decency in U.S. history.