Brett Kavanaugh Nomination Ethics Train Wreck

Sunday Morning Ethics Warm-Up, 10/14/18…Stretching the Truth: Fake Accusations, Fake Supreme Court News, Fake Fake Doctors

/ Jack Marshall / 29 Comments

Good Morning!

1.Who Could Have Predicted That Black Men Would Identify With Brett Kavanaugh?,cont. From the New York Times yesterday:

A white woman who called police after claiming that a young black boy touched her behind in a Brooklyn deli drew a storm of ridicule and criticism on social media, and late Friday she made a public apology to the child.

Critics characterized the incident as the latest example of a hypersensitive white person calling the police to report black people for dubious reasons. Many detractors imputed racist motives to the woman, Teresa Klein.

She was quickly labeled “Cornerstore Caroline” by Jason Littlejohn, 37, a lifelong Flatbush resident who recorded the commotion Wednesday outside the Sahara Deli Market on Albemarle Road. Littlejohn’s Facebook recording of the incident had been viewed 4 million times by Friday evening.

“I was just sexually assaulted by a child,” Klein is heard saying on the video as she was on the phone with the police. The boy, who is about 9, and another child burst into tears outside the store as bystanders confronted Klein about the incident. “The son grabbed my ass and she decided to yell at me,” Klein continued in the video, referring to his mother. The video was first reported by The New York Post.

I just don’t think the Left thought through this “believe all women who claim to be victims” bit. And I’m still confused about the rules. You have to believe a white woman who accuses a white high school kid of sexual assault if she remembers it 30 years later, but you don’t have to believe a white woman who accuses an even younger kid immediately, if he’s black? Does it matter if she’s black? If the accused was a white high school kid, then would everyone have to believe her?

2. Newton’s Third Law! From the Huffington Post: 

Minutes after an event at a Manhattan Republican club meant to celebrate violence against leftists, attendees belonging to a proto-fascist, pro-Trump street gang reportedly pummeled three people on the sidewalk in Manhattan’s Upper East Side while shouting homophobic slurs.

Footage posted online by video journalist Sandi Bachom shows a group of men who appear to be Proud Boys — a misogynistic and anti-Muslim fraternity known for committing acts of political violence across the country — kicking and punching three apparent anti-fascist protesters as they lay prone on the sidewalk.

“Do you feel brave now, faggot?” one of the attackers yelled, according to Bachom and another journalist, photographer Shay Horse. Another video shows multiple attackers yelling “faggot.”

HuffPo, being smear-meisters, calls the group “Pro-Trump” in its headline. I don’t recall any news source calling the antifa a “pro-Obama group” when it was running amuck punching people on Inauguration Day. Speaking of the antifa,  here’s a tweet from a Portland journalist from October 8: Continue reading →

Comment Of The Day: “The Attack Of The Unethical Women”

/ Jack Marshall / 21 Comments

Here is William Gauci’s Comment Of The Day, his first, on the post, The Attack Of The Unethical Women: 

“Still Spartan” on September 20, 2018 at 9:26 am: quoting you: “Imagine someone you may have harmed.”

“Exactly, imagine someone YOU may have harmed. The onus is on YOU to apologize — not on her to come forward and make you apologize. And even if you think you did nothing wrong, hey just an indiscretion, she wasn’t into it — if a girl runs away you, jumps out of the car, starts crying, etc. then every single alarm bell in YOUR head should go off that maybe you did something wrong and that you need to make amends. Or, even if you think you did nothing wrong, it’s probably safe to check with her because that is what a decent human being does. And if you don’t do that out of fear that you might go to jail, get suspended, or heck — mommy and daddy might ground you for underage drinking or trying to have sex with a younger girl, then no sympathy.”

In a perfect and enlightened world where everyone is self aware and able to view the world through many different lenses, I could agree. But in reality, I don’t think you’ll frequently see this scenario happening in practice, especially with younger people who tend to not be as able to see the long term consequences of their actions.

Also we have the issue of perception. The recent fictional series “13 Reasons Why” was a good example of this. The underlying premise I got from watching it, was how very different each person can perceive and be effected by a single or series of events. For the now grown Professor Ford in this scenario, it may well have been a traumatic and life affecting episode. For the young man who could very well be a self centered, egotistical jackass at the time, just another night out partying and trying to have some fun. No more memorable than that. So both of these people may very well be telling their perception of the truth, and how very different they remember or don’t remember the very same event. Continue reading →

From The “Bias Makes You Stupid Files”: Who Could Have Predicted That Black Men Would Identify With Brett Kavanaugh?

/ Jack Marshall / 4 Comments

Kanye West may be crazy, but he isn’t wrong.

Writes the former race-baiting ESPN reporter Jamele Hill in The Atlantic:

On Tuesday night, I was in an auditorium with 100 black men in the city of Baltimore, when the subject pivoted to Brett Kavanaugh. I expected to hear frustration that the sexual-assault allegations against him had failed to derail his Supreme Court appointment. Instead, I encountered sympathy. One man stood up and asked, passionately, “What happened to due process?” He was met with a smattering of applause, and an array of head nods.

Why did Hill expect a group that  has historically been the victim of “believe the white woman” more than anyone to regret the failure of the desperation hit on the SCOTUS nominee using the banneer of #meToo waving over an unsupported accuser? Why did the Democrats? It’s pure bias: they assume that any group in their base automatically approves of their “ends justifies the means” tactics, no matter what basic principles of justice or democracy  have to be sacrificed. I heard about Hill’s bias-driven myopia before I read the whole article, and immediately wondered what Brian Banks, the promising high school football player whose life was upended when a jury believed his false accuser, Wanetta Gibson, would think of the argument that Kavanaugh’s appointment should be forfeit because a single accuser “must be believed.” As it turns out, Hill thought about Banks too, and even approached him.

I reached out to Banks and asked whether he had any thoughts about this solidarity some black men seem to feel with Kavanaugh, but he politely declined to comment. I can’t say that I blame him, since there’s probably nothing Banks could say that wouldn’t be interpreted as being unsympathetic toward victims.

Interpreted by who? I’m sympathetic toward victims, but like Banks, I suspect, I’m not sympathetic with those who want to ruin the lives of men, be they a an African American high school athlete or a judge with an impeccable personal and professional record as an adult, by discarding the principles of due process, equal justice, and presumption of innocence. Nobody can say that Blasey-Ford is a victim any more than the women who got Emmet Till killed was a victim. Democrats wanted her to be a victim, and that was the sole basis for her to be believed more than the man she accused. Continue reading →

Ethics Hero: Michelle Obama

/ Jack Marshall / 24 Comments

Like it or not, Michelle Obama has established herself as a cultural role model, and millions of American respect her statements and opinions and take them to heart. As clearly contrary to reality as  her now-famous “When the go low, we go high” remark was—its is difficult to remember the last time the Democratic leadership “went high”—the statement would have been an ethical one if it were true, and was still arguably aspirational, unless regards it as cynical public deception.

(Which, I confess, I have…)

This week, as important voices in her party increasingly courted hate, anger and violence among members of the public in the wake of Operation Smear Kavanaugh failing so spectacularly, the former First Lady refused to encourage the mob, and told the Today Show,

“Fear is not … a proper motivator. Hope wins out, and if you think about how you want your kids to be raised, how you want them to think about life and their opportunities, do you want them afraid of their neighbors? Do you want them angry? Do you want them vengeful?…Which motto do you want them to live by? And I have to think about that as a mother.”

Continue reading →

Oh, NOW I Get It! People Are Furious At The Kavanaugh Confirmation Because They Believe Divisive Fear-Mongers And Partisan Liars Like David Leonhardt! [Part II]

/ Jack Marshall / 24 Comments

New York Times hyper-partisan pundit David Leonhardt’s hate speech  in the New York Times was so bad, I couldn’t cover its ugliness in a reasonable length post. Here I pick up from Part I.

5. “publicly sought“; Lower and lower: Trump needled Hillary about her missing e-mails, and facetiously suggested that Russia should hack them so we could find out what was in them. This has been a disgraceful trope in the Trump-Russia conspiracy theories, and citing it identifies the writer or speaker as an  untrustworthy hack.

6. “When national security officials raised alarm with Congress, before Election Day, leaders of the candidate’s party refused to act.”

It is nice that the columnist supplies the news links so we can read what he is falsely characterizing.  This is a good example: a typically slanted post by anti-Trump Fury Jennifer Rubin blaming Mitch McConnell for not agreeing to sign “a bipartisan statement of condemnation.” If there is anyone who thinks that the Obama administration was prevented in any way from taking measures to protect the election from the Russians because McConnell wouldn’t sign a statement, raise your hand. It’s like the old telephone game: Rubin makes a highly dubious claim, and Leonhardt cites it to mean something more dubious still.

7. “The foreign assistance appears to have been crucial to the candidate’s narrow victory.” Appears to whom? There is absolutely no evidence that Russians played a crucial or even significant role in Trump’s  upset. This is now Democrat cant, and wonderful example of bootstrapping: obviously Hillary’s loss proves the case, because they are sure that she shouldn’t have lost.

8. “He won with only 46.1 percent of the popular vote, less than 16 losing candidates over the years had, including Mitt Romney, John Kerry, Williams Jennings Bryan and the little-remembered Horatio Seymour.”  Yes, the Left is still complaining about the Constitutional rules of the system that all parties have played by from the beginning, and which has worked out extraordinarily well. What is Leonhardt trying to say? Apparently that Trump isn’t legitimate, so everyone should be angry that they are being governed by an evil pretender.

Psst! Idiot!! 46.1 % is also more than some prominent Presidential winners, like Abraham Lincoln, Woodrow Wilson, and Bill Clinton (twice), as well as some not so prominent, like John Quincy Adams and James Buchanan In other words, the statistic is cherry-picked trivia, and proves nothing whatsoever.

9. Sigh. The Supreme Court seat was not “stolen,” which falsely implies something illegal.  The GOP was within its legal rights not to allow Obama’s nomination come to the Senate floor. The plan was unethical, unfair and a ridiculous gamble that easily could have backfired, but “stolen” is a falsehood.

10. ” A brutal, partisan process that was made into the norm by Democrats during the Bork and Thomas hearings, and sent plummeting to new lows by the outrageous conduct of, again, Democrats, this time.” There, I fixed it for you, Leonhardt. Continue reading →

Oh, NOW I Get It! People Are Furious At The Kavanaugh Confirmation Because They Believe Divisive Fear-Mongers And Partisan Liars Like David Leonhardt! [Part I]

/ Jack Marshall / 7 Comments

I know: I could spend all my time debunking unethical columns like Times pundit David Leonhardt’s piece a few days ago. However, since I noted in the previous post that I was puzzled by the fury of so many people regarding what was, in any objective assessment, a fair and competent—and, thank god, successful—effort by Republicans to prevent Democrats from shredding basic principles of justice and fairness in their desperate effort to preserve a favorable ideological balance on the Supreme Court as if they were entitled to it (They weren’t, because elections have consequences), I am obligated to inform the assembled that my puzzlement was cleared by his screed.

There are pundits like Leonhardt who are actively trying to foment fury and division, they are using false narratives, deceit and lies to do it, and newspapers like the Times and news networks like CNN and MSNBC are actively promoting the effort. I won’t waste my time and yours on the whole column, fun as it would be, but just this section:

If you’re not angry yet, you should be.

Let’s review: Decades ago, a businessman built a fortune thanks in large measure to financial fraud. His corrupt gains helped him become famous. He then launched a political career by repeatedly telling a racist lie, about the first black president secretly being an African.

This lie created an audience in right-wing media that made possible a presidential campaign. During that campaign, the candidate eagerly accepted — indeed, publicly sought — the illegal assistance of a foreign enemy. When national security officials raised alarm with Congress, before Election Day, leaders of the candidate’s party refused to act.

The foreign assistance appears to have been crucial to the candidate’s narrow victory. He won with only 46.1 percent of the popular vote, less than 16 losing candidates over the years had, including Mitt Romney, John Kerry, Williams Jennings Bryan and the little-remembered Horatio Seymour.

Having won, the new president filled a Supreme Court seat that his party had stolen with an unprecedented power grab. This weekend, the president finished filling a second seat, through a brutal, partisan process. During it, the president, himself an admitted sexual molester, mocked victims of abuse.

Together, the two new justices have cemented an extremist Republican majority on the Supreme Court. It has already begun acting as a kind of super-legislature, throwing out laws on voting rights, worker rights, consumer rights and political influence buying. Now, the court is poised to do much more to benefit the wealthy and powerful at the expense of most Americans — and the planet.

This is not how democracy is supposed to work.

That’s right: democracy doesn’t work when journalists are complicit in fomenting public division and violence to advance a political agenda. Continue reading →

Morning Ethics Warm-Up, October 10, 2018: Incompetence Special

/ Jack Marshall / 22 Comments

Good morning, and I mean it this time…!

1. My only Red Sox-related note: One reason I know that the news media can’t be trusted is that when I have first hand knowledge of a topic or event reported in the paper, I often find the reporting lazily, inexplicably, factually wrong. Here’s a trivial but illustrative example: this amazing play (It’s at 1:04 on the video) ended last night’s decisive Boston 4-3 victory over the New York Yankees in the American League Division Series:

Here’s how the Times described it:

“Kimbrel then got Gleyber Torres to hit a dribbler to third. Eduardo Nunez, a former Yankee, gathered it and threw slightly wide of first base, but another former Yankee, Steve Pearce, stretched to glove it an instant before Torres touched the bag.”

What? “Slightly wide”? A millimeter wider and the ball would have been in the dugout! If journalists can’t get little things right, why should be trust them to convey the important stuff?

2. Institutional incompetence  The historical airbrushing continues. From the Richmond Times-Dispatch:

Washington and Lee University has decided to make changes to the names of some campus buildings after concerns from students and faculty.

On Tuesday, the Board of Trustees announced that it will rename Robinson Hall as Chavis Hall, in honor of John Chavis, the first African-American to receive a college education in the United States. He graduated from Washington Academy, the predecessor of W&L, in 1799. Also, Lee-Jackson House will be renamed Simpson Hall in honor of Pamela Hemenway Simpson, who served as an associate dean of the college and helped move to a co-ed environment in the 1980s.

The board also announced that effective immediately, it will replace portraits of Robert E. Lee and George Washington in military uniforms inside Lee Chapel with portraits of the two men in civilian clothing.

An educational institution that thinks it is appropriate to airbrush its own history can’t be trusted to teach anyone. Robinson Hall is named after the man who established the college, John Robinson. Yup, he was a slaveholder, but he established the school, and deserves prominent recognition for that. The decision to strip Washington and Lee of their uniforms is particularly ominous, hinting of several obnoxious biases. Soldiers are taboo now? Or is this a strike against “toxic masculinity”?  If the idea is to pretend that Robert E. Lee  is only notable for his post-military career as president of the university, that’s absurd and dishonest: if Lee had never worn the Confederate uniform, he would never have led the school, and nobody would know who he was today. Washington’s military brilliance  supersedes  his civilian achievements in significance and historical impact, for without General Washington there would be no United States of America.

My position is that it is negligent for parents to entrust their children’s minds to stupid people and incompetent schools. Washington and Lee and its administrators now qualify for that category.

Continue reading →

Morning Ethics Warm-Up. 10/9/18: Ecstatic Because The Red Sox Clobbered The Yankees 16-1 Edition

/ Jack Marshall / 80 Comments

GOOOD Morning!

1. Unwritten and incoherent rules…During last night’s ALDS Game #3 between the Yankees and Red Sox, won by Boston by the historic score of 16-1, color man Ron Darling, former pitcher and Yale grad, repeatedly alluded to “unwritten rules” that the Red Sox either were or were not observing. Bad, said Ron: a Sox player stealing second when the score was 10-1. Bad: A Sox player swinging away when the count was three balls, no strikes. (Darling: “I’d find that offensive.”) Good: a Sox base-runner at third not scoring when his team was ahead 15-1 and the ball bounced away from the Yankee first baseman. (“A veteran move,” said Darling.) Acceptable: when the same runner eventually did run home when the pitcher threw the ball past the catcher to the backstop. Darling’s concern was the observance of the  professional courtesy not to try to embarrass an adversary once the game was clearly out of reach.

My view: it’s nonsense. The obligations of both teams is to play their hardest at all times, regardless of the score. That means doing nothing different whether one’s team is winning 5-4 or 10-1. On baseball, no game is certain until the final out. Not only have I seen a team lose a game after leading 10-0, I’ve seen the Red Sox do it. What would completely humiliate any team is losing after having such a huge lead, but no “unwritten rule” says that it’s offensive for a team in the Yankee’s position last night to keep trying to pull off a miracle until the fat lady sings.

This is what’s wrong with unwritten rules; people make them up as they go along.

In Darling’s defense, he went to Yale…

2. Confession: I don’t get it. I understand why  Democratic officials and operatives are claiming that the conduct of the Republicans was reprehensible during the Kavanaugh hearings: they were embarrassed, defeated, and exposed, and now are spinning and lying to save face. I do NOT comprehend how any citizen of either party can honestly make similar claims, often in the most intemperate and unhinged manner. (Dave Hogue, a design lead at Google, tweeted, “You are finished, @GOP. You polished the final nail for your own coffins. F–K. YOU. ALL. TO. HELL. I hope the last images burned into your slimy, evil, treasonous retinas are millions of women laughing and clapping and celebrating as your souls descend into the flames.” I have previously sane Facebook friends who are only slightly less furious.)

Democrats and their allied protesters tried to disrupt the hearings from the opening gavel. The questioning of the judge by Senator Booker and others was intemperate, unfair, and disrespectful. Senator Feinstein’s handling of the Blasey-Ford letter was indefensible by any logic, and her later demonstration of  contrived outrage was transparent in its dishonesty. The desperate anointment of Dr. Ford indicated that the Democratic Party has officially rejected basic standards of fairness and decency, as well as the core democratic concepts of due process, equal justice, presumed innocence, while embracing the loony idea that “all victims should be believed” as long as they are women and they are accusing men, who, if they deny the accusations, should be disbelieved based on their gender. (This is bigotry, in case you have been confused by #MeToo demagogues.)

In related news, independent voters overwhelmingly disapprove of the Democrats’ handling of the Kavanaugh nomination by a 28-point margin according to  a new CNN/SSRS poll (I know, I know: polls), or put another way, “You can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time.” Continue reading →

Wait, WHAT? Democrats Think That They Aren’t Unethical ENOUGH?

/ Jack Marshall / 70 Comments

There are so many things in today’s post-Kavanugh confirmation Politico piece that might explode an ethics-savvy readers’ head, the CDC should seek leave to ban it as a menace to public health.  The Thing is titled, Democrats Fear They’re the Wet Rag Party: Kavanaugh’s victory leaves many on the left saying it’s time to get mad—and even, and better proof of the reality of Trump Derangement and the ethics collapse of the Left  would  be hard to find.

A digression: Well, not TOO hard. A novelist and passionate progressive blogger named Chuck Wendig published this Twitter rant after the confirmation vote:

There will be renewed calls for civility. Ignore them. They ask for civility as a way for you to grant them complicity in what they do. Civility is for normalcy. When things are normal and working as intended, civility is part of maintaining balance. But when that balance is gone, civility does not help return it but rather, destabilize it further. Because your civility gives them cover for evil. Note: this isn’t the same as calling for violence. But it is suggesting that you should not be shamed for using vigorous, vulgar language. Or for standing up in disobedience. Or for demanding acknowledgement and action in whatever way you must.

Fuck Trump. But he’s just the ugly fake-gold mask they’ve put on this thing. Fuck all the GOP, fuck that blubbering, bristling frat boy judge, fuck McConnell, Ryan, Grassley, Collins, every last one of them. Fuck them for how they’ve shamed victims and helped dismantle democracy. They will tell you to smile, that we need to get back to business, that we gotta heal the rift and blah blah blah — but that’s the desire of a savvy bully, who wants you to stop crying after he hit you, who wants you not to fight back. But you can cry. And you can fight back. They can eat shit. All of them. They can eat a boot covered in shit. Winter is coming, you callous fucknecks, you prolapsed assholes, you grotesque monsters, you racists and rapists and wretched abusers, you vengeful petty horrors.

Sidenote: some will tell you to be civil because our rage and scorn will fuel the other side, but fuck that double standard in both its ears.

Well, if you hadn’t said those SASSY WORDS and demonstrated ANGER at our whittled-down democracy, I for a second might’ve been convinced not to eat this baby. But fie! Fie on you! Your incivility MADE me eat this baby!” Spoiler warning: they were always gonna eat that baby.

PS— It’s okay if you’re not okay.

I keep hearing the talking point that confirming Kavanaugh somehow undermined democracy. This is essentially a Big Lie, which the Democrats and “the resistance,” being totalitarians in training, are employing with increasing frequency, if not deftness. Democracy is allowing elected Presidents to appoint qualified judges to the Supreme Court, which is what Trump did, and the Democrats tried to prevent. Our democracy demands the presumption of innocence and due process, which Democrats tried to declare null and void. Our democracy demands equal justice under law, which means that accusers and the accused both have rights, and one gender isn’t accorded greater deference than the other.

How did poor Chuck’s brains and values get this scrambled?

End of digression: back to Politico. Reporter John Harris tells us that Democrats think they were too nice when they employed every cheap trick, unfair avenue of inquiry and a series of late, legally and factually dubious attacks on Kavanaugh’s character to defeat or at least delay his confirmation.

Does this post-confirmation quote make your head explode? Continue reading →

Comment Of The Month, On The Brett Kavanaugh Nomination Ethics Train Wreck [Updated!]

/ Jack Marshall / 24 Comments

Checking in at over 3000 words, Steve-O-in NJ’s epic Comment Of The Month–Comment of the Day doesn’t do it justice—is just short of being the longest COTD entry ever on Ethics Alarms. It is also the first not attached to specific post in its EA headline, though the comment appeared in the thread of this morning’s Sunday Ethics Warm-Up, 10/7/18, Part I: Signature Significance Meets The Brett Kavanaugh Nomination Ethics Train Wreck. 

I apologize to the several deserving Comments of the Day by other commenters that have been languishing in Ethics Alarms escrow because it’s been uncommonly busy at ProEthics and the Marshall household. Jumping Steve-O in line is no reflection on your work, but rather an acknowledgment of the superb timing and unusual erudition of his. It is one of the best summaries and analyses of the entire Kavanaugh National Nightmare I have read anywhere.

That doesn’t mean that I agree with all of it, of course. As if it isn’t long enough, I’ll be back at the end. But for those here who have occasionally asked why this veteran commentator’s occasional line-crossing outbursts of invective or bad taste have not been fatal to his participation here, this is the reason. I am proud to be the proprietor of a forum that is a catalyst for work like this. Thanks, Steve.

I have said little on this wreck until now, but here it is:

So it’s over, as Judge Brett Kavanaugh crosses the finish line to become Justice Brett Kavanaugh, by the closest margin possible and after paying a terrible price professionally and personally. This will be a seismic change at the Supreme Court and for this nation, but not only because his confirmation will move the Court to the right for the foreseeable future. Most people, heck, most LAWYERS, couldn’t tell you thing one about any of the judge’s decisions and why they are significant off the top of their heads, and even lawyers would probably have to do some research. Most people couldn’t tell you anything even vaguely specific about his judicial philosophy, except for the fact that Trump nominated him, so he must be right-wing.

Actually, Judge Kavanaugh served on panels with Obama nominee Merrick Garland and joined him in 93% of the opinions, dissenting from him only once. But most people, going forward, will tell you he was accused of attempting to rape a fifteen-year-old girl. They may even leave out the “accused of” or “attempted” part, or perhaps both. There are a lot of words most of us don’t want to see in the same paragraph with our own names even once. I think rape ranks up there in the top ten, maybe even the top four. Judge Kavanaugh is now going to see that probably a good 75%-80% of the time his name appears in print, because the mainstream media isn’t going to let this go, nor miss a chance as the years pass to imply he’s a pervert and a criminal who escaped justice and got a reward he didn’t deserve.

The more important reasons this represents a seismic shift are the precedent that it has set for how any high-level appointee, but especially a high-level conservative appointee, and most especially a high-level conservative appointee to a position that is going to have a major impact, is going to be treated, and the level to which opposition to such an appointee is willing to go that has been exposed. There is very little history of any modern, qualified appointee being treated in this manner.

Robert Bork made the mistake of not replying strongly to Ted Kennedy’s vile attack on him. Judge Bork was no dummy, and was in fact a seasoned litigator, so I can only say I believe he did not reply more strongly because he believed that no one would be swayed by such an outrageous statement. He was wrong. However, outrageous though Kennedy’s attack may have been, it was at least based on policy and the differing vision of where the country should go. Clarence Thomas received a despicable late hit from Anita Hill, accusing him of sexually harassing her (a co-worker who she followed into a different position at a different agency) after she conveniently held back until the hearings were over. He was able to deflect by deft testimony of his own which pronounced this attack (in his words)

“…a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.”

What happened to Kavanaugh wasn’t akin to either Kennedy’s unanswered hate-spew against Bork, or Anita Hill’s coming forward and leveling accusations from an earlier time in Thomas’ legal career. I’m not even sure it’s akin to the Senate’s poor treatment of John Tower, who was rejected as Secretary of Defense amid anonymous allegations of drinking and womanizing, some of which weren’t even accurate. At least those allegations involved behavior as a Senator, not as a juvenile. There were  no allegations that he was going to set the country on the wrong path or that he was some form of dangerous, evil figure due to his politics. Finally, Tower did not suffer fools gladly, so during his tenure as a senator he had made some enemies who used his nomination as a chance to settle some old scores. I would add that once the decision of the Senate was known, then-President George H.W. Bush simply moved on and nominated Dick Cheney, and the Senate also moved on and confirmed Cheney with a minimum of fuss.

In this case there were no allegations at all of misbehavior while Kavanaugh served on the bench or during his legal career prior to it. There is no evidence that the judge had anything other than a completely blameless personal life; no affairs, no questionable gifts, no using his office for access or privileges he wouldn’t otherwise get. Unlike Robert Bork, the target did not remain silent, and successfully stood up to every challenge on his philosophy and career the Democratic senators on the Judiciary could throw at him, most of which were not easy, and a few of which, notably those by Cory Booker and Diane Feinstein, were unfair. Just based on his career, record and scholarship, the man was clearly qualified to take Justice Kennedy’s place. That should have been the end of it, and there was no reason he should not have been confirmed at the close of the hearings.

As we all know that wasn’t the end of it. It wasn’t the end of it for a number of reasons, a lot of which, I have to say, are invalid, and what followed has pushed this already nation, which was already divided further than is healthy (divided in part thanks to the tactics of the last president, but that’s a separate discussion) further apart, and set the stage for it to take a path that is very likely to end badly.

The first reason is that the Supreme Court’s role, indeed the role of the Federal judiciary, has greatly expanded beyond what it was originally envisioned as, partly due to party politics, partly due to other historical factors. Fear of a judiciary that might go too far goes back at least to Thomas Jefferson who wrote, “The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

TJ’s fears became much closer to reality when FDR overstayed the traditional two terms and waited out deaths and retirements to fill the court with his own people rather than earlier justices who had slapped down his overreaching. They fully flowered when activist judges and justices of the late 1950s and 1960s decided that they knew how to run things better than those who actually ran them and still more activist judges and justices of later decades created new rights out of whole cloth that certain segments of the population grabbed onto like a dog thrown a tasty fresh-cut chop.

The second reason is that these created rights in turn led to litigation becoming the preferred tactic of activists, determined to shove their own agendas ahead whatever democracy might say, and shove it ahead more quickly than the democratic process allowed. It also placed the Supreme Court in the position where it became a de facto Politburo, an unelected super-legislator that could override the elected branches of government.

The third reason is that this enshrinement of the Supreme Court as an unelected super-legislature led to the Court becoming less and less about the law and increasingly about politics. Both politicians and the sections of the public which stood to gain or lose depending on the politics paid increasingly close attention to who was appointed to the Courts. This in turn led to the appointment and examination of candidates for the bench being less about whether they knew the law and more about what were their politics and whether they would disturb decisions that the politicians didn’t want disturbed.

The fourth reason is that certain sectors of the population began to believe they were entitled to whatever rights the Supreme Court said they had, whether or not the decisions were legally correct. They didn’t want the decisions which gave them those rights examined too closely or reexamined at all. Continue reading →