Law & the Courts

Democrats, Kavanaugh, and ‘The End of Civilization’

A camera takes a photo of Sen. Dianne Feinstein during a Senate Judiciary Committee hearing on the DOJ Inspector General’s report, June 18, 2018. (Joshua Roberts/Reuters)
If they get away with this, the only decent people in politics will be decent progressives.

Judge Robert Bork used to tell a prescient and darkly humorous story about watching Clarence Thomas’s Senate confirmation hearings — etched in pre-hashtag history as the “Thomas–Hill hearings,” in homage to Anita Hill’s role as the Left’s heroic accuser.

At the time, Thomas was a judge of the same eminent D.C. Circuit federal appeals court on which Bork had served. As he viewed Thomas’s “high-tech lynching” in horror, Bork recalled, a friend of his, the iconic Irving Kristol, approached and asked him what was happening.

“The end of civilization,” the judge sadly quipped.

“Of course it is,” Kristol deadpanned. “But it’ll take a long time. Meanwhile, it’s still possible to live well.”

It was a poignant story coming from Bork. A scholar of great breadth, the late judge was a man from another time: a patriot who’d enlisted in the Marines at 17 during World War II and been called back to duty when the Korean War broke out, even as he embarked on a legendary life in the law. In 1987, four years before the Thomas–Hill hearings, the slide from civilization he so lamented — the slouch toward Gomorrah — had started when he himself was mugged by Senate Democrats. This libelous character assassination, derailing Bork’s nomination by President Reagan to the Supreme Court, had been led by Ted Kennedy.

 

Democrats and Women

Back in 1969, Senator Kennedy had recklessly caused the death of a young woman, not his wife, by driving her off a rickety bridge on Chappaquiddick Island as they sped away from a booze-soaked bacchanal. Kennedy managed to save himself by swimming to safety. He then abandoned the scene for hours, failing to alert police and rescue workers while Mary Jo Kopechne, submerged in the car, eventually drowned.

Ms. Kopechne did not live to see “Me Too.” That “movement,” in which the Left is front and center, was not forged until long after leftists had raised the notoriously lecherous Kennedy to “Lion of the Senate” status. Indeed, it was not forged until 20 years after Democrats, prominently including women’s-rights advocates, closed ranks around President Bill Clinton, Kennedy’s equally lascivious political ally.

According to the victim’s credible accusation, Clinton had raped Juanita Broaddrick in 1978. That was before Brett Kavanaugh could even have pondered hitting underage beer parties. Clinton, at the time, was the 32-year-old attorney general of Arkansas.

His sexual assault against Ms. Broaddrick came to light during the investigation of Clinton’s obstruction of a sexual-harassment suit filed against him by another woman, Paula Jones. She alleged that, while governor of Arkansas, Clinton had exposed himself to her, demanding oral sex. She declined and fled from the room.

There was no Twitter back then but, in the face of Jones’s entirely credible allegation, a top Clinton White House aide set the narrative: “Drag a hundred dollars through a trailer park and there’s no telling what you’ll find.” President Clinton eventually paid $850,000 to settle the matter out of court.

The president was later held in contempt of court by a federal judge for providing perjurious testimony. That testimony was about Monica Lewinsky. It was also through Ms. Jones’s case that we discovered that Clinton, while the 50-year-old president of the United States, had arranged Oval Office sexual liaisons with the then-22-year-old White House intern.

These were just some of the many sexcapades in which Clinton leveraged his physical and political muscle against vulnerable women. He did it because he felt immune, the women having been intimidated into silence. In this regard, his enabler-in-chief was his political partner and wife, Hillary, who took charge of the jihads against her husband’s bevy of potential accusers. Think of them as a Me Too precursor, strangled in the cradle lest Democrats be separated from power.

And how did Democrats respond to this outrageous affront against all that Me Too stands for? Why, by nominating Mrs. Clinton for president and championing her bid to return to power as — what else? — a symbol for women everywhere who challenge our sexist, predatory, Good Old Boy society.

 

Democrats and Judges

Some more not-so-fun facts. Not that long after Clarence Thomas’s nomination was very nearly defeated, and within easy memory of Bork’s character assassination, President Bill Clinton got to nominate two Supreme Court justices. How did Republicans react? They couldn’t leap on the confirmation bandwagon fast enough. Ruth Bader Ginsburg and Stephen Breyer were confirmed by the lopsided margins of 96–3 and 87–9, respectively.

See how this works?

Justices Ginsburg and Breyer were well qualified. But, of course, so had been Bork and Thomas. Because they were Democrats, however, Ginsburg and Breyer sailed through. The two things Democrats and Republicans have in common are 1) abiding respect for the personal integrity and legal acumen of Democratic judicial nominees and 2) effective acceptance of the Democrats’ claimed prerogative to “Bork” any Republican court nominee, no matter how impeccably credentialed, no matter their obvious integrity.

Republicans have defeated Democratic nominees, but they never Bork them. They never demagogue Democratic nominees as sex offenders, racists, or homophobes. There are no “Spartacus” moments.

Even when Republicans are put off by a Democratic nominee’s progressive activism, they seem apologetic, quick to concede that the progressive in question adheres to a mainstream constitutional philosophy — one that is championed by leading American law schools and bar associations because it effectively rewrites the Constitution to promote progressive pieties. Old GOP hands then typically vote “aye” while mumbling something about bipartisanship and some “presumption” that the president is entitled to have his nominees confirmed (a grant of deference that Democrats do not reciprocate, and that actually applies only to offices in the executive branch that exercise the president’s own power, not to slots in the independent judicial branch).

Even in 2016, when Republicans blocked Merrick Garland, President Obama’s late-term gambit to fill the vacancy created by the titanic Justice Antonin Scalia’s death, there was no besmirching of Judge Garland’s character. It was pure political calculation and exactly what Democrats would have done if roles had been reversed (minus the character assassination).

The Constitution did not require Republicans to conduct hearings or vote on the president’s nominee — something of which Democrats were well aware, having stonewalled on President George W. Bush’s nominees, saving slots for his Democratic successor to fill. This time, with the 2016 election looming, Republicans had the votes to block Garland and allow the American people, in the 2016 election, to determine whether they wanted the court vacancy filled by Donald Trump or Hillary Clinton. It was a rare show of backbone by the GOP, and it undoubtedly won the election for Trump.

No one, however, questioned Garland’s sterling character, patriotism, or legal acumen. These attributes, in fact, created real political risk for Republicans. For the GOP, Garland — then a 63-year-old moderate progressive with a strong law-enforcement background — was as good as it gets (which is why Obama, as a lame duck with no leverage, nominated him). Trump was expected to lose. Had Mrs. Clinton won the presidency, Obama might well have retracted Garland’s nomination. A President Clinton would then have tried to fill the seat with a young leftist firebrand. Do you think Republicans, with the thinnest of Senate majorities in the first year of America’s first woman president, would have blocked such a nomination? I think she (it would have been a she) would have cruised to confirmation.

On the other hand, if Clinton had pressed Garland’s nomination, he’d have been confirmed with 80 or more votes.

That doesn’t happen for Republican nominees anymore. Fifteen years ago, with the Senate in firm GOP control at the start of George W. Bush’s second term, Judge John Roberts was confirmed as chief justice, 78–22. But just a year later, notwithstanding his stellar credentials, Judge Samuel Alito was confirmed by a historically slim 58–42 vote due to near-unanimous Democratic opposition.

In the Obama years, even as it finally dawned on some Republicans that unrequited solicitude might not be the best strategy, the question was still not whether Democratic nominees could be confirmed to the High Court but by how much — Judge Sonia Sotomayor by 68–31, Dean Elena Kagan by 63–37. Those were easy rides compared to last year’s 54–45 nail-biter for President Trump’s first nominee, Judge Neil Gorsuch. Like Alito over a decade earlier, Gorsuch faced nigh-unanimous Democratic opposition despite being manifestly worthy, with a proven track record of high-caliber judicial work.

 

Democrats and Kavanaugh

Now, with Trump’s nomination of Brett Kavanaugh, we appear to have reached the metaphorical end of civilization that Bork foresaw: when Republicans are disqualified based on unprosecuted, unprovable, and largely unremembered misconduct that allegedly occurred when they were in high school.

Judge Kavanaugh is as superbly qualified as any jurist ever nominated to the Supreme Court. In a dozen years sitting on the same distinguished appellate tribunal as Bork, Thomas, Ginsburg, and Garland, he has generated over 300 opinions. This prodigious jurisprudence is cited regularly by the Supreme Court, as well as by other circuit courts of appeal and federal district judges.

Kavanaugh’s hiring of clerks has been exemplary by any standard of not only scholarship but diversity (more women than men, a healthy percentage of African Americans, Asian Americans, and Hispanics). If you’re into this numbers game, as the Left surely is (at least when conservative judges are at issue), it’s worth noting that Justice Ginsburg hired no African-American clerks or administrators in 13 years on the D.C. Circuit and has hired only one African-American clerk during her ensuing quarter-century on the Supreme Court. Of course, she’s a good progressive committed to placing her judicial power in service to the March of History, so the matter is quietly tucked into the Left’s bulging “Not to Be Spoke Of” file. Meanwhile, clerks from Kavanaugh’s eclectic stable are coveted by Supreme Court justices on both sides of the ideological spectrum. He has, moreover, been a stalwart champion of women in the legal profession, as well as girls in his community.

Now, however, Kavanaugh’s nomination is imperiled because of a highly dubious, unverifiable allegation of bumbling, drunken sexual aggression when he was a high-school student: An assault the purported victim never told anyone about — not the police, not a friend, not her parents — until therapy sessions 30 years after the “fact.”

Christine Blasey Ford, a Palo Alto University biostatistician and professor of psychology, is a Democrat — a Bernie Sanders contributor and an anti-Trump activist. Some 36 years ago, when she was 15, she says the 17-year-old Kavanaugh tried to force himself on her, clumsily trying to get her clothes off. A friend of Kavanaugh’s, Mark Judge, who had been watching, jumped on the two of them, allowing Ms. Ford to wriggle away and lock herself in a bathroom until the boys left.

There is no way to prove that this happened. That’s not just because Kavanaugh and Judge, the only witnesses besides Ms. Ford, vehemently deny it. Ford cannot even place it: She doesn’t recall in whose Maryland home it supposedly happened, what she did afterwards, how she got to or from the place. She never breathed a word of it at the time. When she finally told a therapist about it three decades later, notes indicate that there were four assailants — a discrepancy she blames on the therapist.

Then there is the studiously duplicitous way Democrats handled the unprovable allegation, even as they slandered Kavanaugh’s character. The ranking Democrat on the Judiciary Committee, Senator Dianne Feinstein of California, has known about the allegation for months, yet sat on it — all through personal interviews with Kavanaugh and hours of Senate testimony. On the eve of the committee vote on the nomination, she sprang it as an allegation she decided to refer to the FBI while maintaining the anonymity supposedly desired by the victim. As Feinstein knew would happen, Democrats began carping that the committee vote on Kavanaugh’s confirmation could not go forward until the bureau ran down the hopelessly stale, impossible-to-verify claim. Meanwhile, the determined-to-remain-anonymous Ford came very publicly forward, after scrubbing her social-media accounts and retaining Debra Katz, a notoriously partisan Democratic lawyer.

This has all the hallmarks of a set-up. If the Democrats had raised the allegation in a timely manner, its weakness would have been palpable, it would have been used for what little it’s worth in examining Kavanagh during his days of testimony, it would be put to rest as unverifiable, and we’d be on to a confirmation vote. Instead, we’re on to a delay — precisely the Democrats’ objective. They want to slow-walk Kavanaugh’s confirmation vote until after the midterms, in the hopes that they swing the Senate in their favor and have the numbers to defeat the nomination.

Republicans should not be rewarding this mendacious gambit by giving the perpetrators the start of what they calculate will be the delay they need. But alas, come Monday, the circus is scheduled to be in town: Anita Hill 2.0.

Or, as Bob Bork would say, “the end of civilization.”

President Trump says a lot of things that are not true and says a lot of other things that are foolish and unsavory. But his supporters are drawn to him, in large part, because he is willing to get into the muck with Democrats, fight them on their own demagogic terms — especially on things he cares about, like his nominees. They are tired of Republicans’ being caught flat-footed, continually underestimating how low Democrats are willing to go, how much they are willing to destroy reputations, institutions, and traditions in order to win.

We’re beyond the time when it’s still possible to live well. If Democrats get away with what they are trying to do to Kavanaugh, the only decent people in politics will be decent progressives; people who reflect the broader range of opinion and civility in the country will not participate in or pay much mind to our politics because it is too savage. The cut-throat operators who do not believe in the Constitution, pluralism, and civility will be running the country, until they inevitably push too far and provoke ugly pushback.

That’s what our politics is supposed to prevent. But you can’t go on forever under circumstances in which only one side of our politics gets the benefit of decorum and the presumption of good faith and rectitude. We can’t continually have judicial nominees — and everyone else — treated under different sets of rules depending on whether they’re Democrats or Republicans.

 

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