After one of the most intense political fights of the last two decades, Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit has become Associate Justice Brett Kavanaugh of the United States Supreme Court. This is a good thing for the integrity of our Constitution, for elementary American norms, and for the long-term health of our political institutions.
Justice Kavanaugh has demonstrated throughout his career a firm adherence to a constitutionalist jurisprudence; indeed, that was the root of the opposition to him. He will undoubtedly stay true to this approach, which has guided him during his years on the D.C. Circuit and is evident in black and white in his hundreds of opinions. All of this was pushed to the side, though, in the final frenzy to destroy and defeat him.
At various points throughout the last two weeks, opponents of Kavanaugh’s have asked why the Republican party could not just “pick another judge.” Insofar as this inquiry was offered in good faith (it usually wasn’t), the answers should be obvious: Because we want each individual to be treated fairly and on the merits; because we do not regard accusations as tantamount to convictions; because there is nothing to be gained by establishing a heckler’s veto over the Senate’s nomination processes.
It is true, of course, that Judge Kavanaugh was not “on trial” in a formal sense. But that fact in no way undermines the practices and norms that mark formal trials. Presumption of innocence and an insistence on corroborating evidence are integral parts of our system because they work. Had the Democratic party prevailed in its attempt to set them aside, the precedent would have been disastrous.
In other circumstances, we suspect that even the most fervent of Kavanaugh’s adversaries would have agreed. Indeed, it has been jarring to watch the dissonance on display. Among the public actors who made a nod toward Salem are some of the lead architects of criminal-justice reform, the most vocal defenders of President Bill Clinton’s reputation, and the increasingly ill-named American Civil Liberties Union. It is perhaps not surprising that a political movement that promised to block Kavanaugh’s nomination before his name was even released should have seized on such a flimsy attempt to sully his name. But it is disgraceful nevertheless.
Arrayed against the judge were the academy, the entirety of the American news media, Hollywood, and the institutional Democratic party. And boy, did they throw everything they had at him. The old saw holds that if a journalist is told that his mother loves him, he should check it to make sure she does. The new practice in this controversy was that if a story hurt Judge Kavanaugh, it should be screamed from the rooftops. Over the last few weeks, no allegation has been deemed too preposterous for the press to take seriously. Not Quaalude-filled gang rapes; not hazy memories arrived at over six days spent with a lawyer; not cartoonish boat-attacks reported by trolls on Twitter. No detail was deemed too frivolous to obsess over; how historians will judge the national panic over “boofing” we cannot begin to imagine.
A number of Republican senators have suggested that we improve the “process” by which we examine allegations against nominees. In a vacuum, this is a good idea, but let’s not fool ourselves about what happened here. The “process” was what the Democratic party and the media made it. It was not “the Senate” that sat on these accusations and leaked them at the eleventh hour. It was not “Congress” that read self-evidently false charges into the record. It was not “America” that transmuted “due process” into “rape apology” and “allegation” into “guilt,” or that moved the goalposts so spectacularly every time an avenue of attack was closed off by the facts.
Throughout this saga, the Republicans on the Senate Judiciary Committee maintained that their job was to investigate charges of wrongdoing and to determine whether they could be verified. Shamefully, their counterparts exhibited no such interest. It was unclear whether Judge Kavanaugh’s record was being examined for rape or for rudeness, for drinking or for defensiveness, for truth or temperament. At times the lack of focus took on a Stalinist quality: “He did it,” Kavanaugh’s accusers insisted day in, day out, “but even if he didn’t, the vehemence with which he denied it is itself disqualifying.”
It is a testament to the fortitude of the Republican party that these conceits were rejected in the end. Donald Trump had the good sense to pick Kavanaugh, and then the determination to stick by him. Mitch McConnell was at his very best, canny and tough-minded. Lindsey Graham was a fierce advocate. And, of course, at the end, Susan Collins not only did the right thing but made a strong case on the charges and the process.
In America we do not sacrifice individuals on the altar of collective guilt, and we do not entertain that illiberal alchemy by which “nobody can corroborate this” becomes “he did it and must pay.” When the Senate met yesterday to put a bow on this squalid affair, there remained as much evidence for Judge Kavanaugh’s unfitness as there had been on the day he was nominated: none. To have rejected him despite this, Collins observed, would be to have abandoned “fundamental legal principles.”
The Senate refused to do so. The Justice prevailed, and so did justice.