Law & the Courts

Brett Kavanaugh’s Moment of Greatness

Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., September 27, 2018. (Andrew Harnik/Reuters)
The senators on whom Kavanaugh’s fate depends should not let the smear of a superbly qualified and upright man stand.

As if the Kavanaugh proceedings needed more “white man’s anger,” I’ve been getting pretty worked up about it myself here in faraway Arizona. That’s right, Flake Country, where we are counting on Senate Republicans to please make sure our man does not go unescorted on any elevator rides before the confirmation vote. I’m also well acquainted with Brett Kavanaugh and his wife Ashley, though I have not seen either the Kavanaughs or the city of Washington for years. The whole drama has left me with a lot of pent-up tribal fury, to use other terms in the air, and a few observations — offered at the last hour, and with no illusions of fresh insight.

I came to know Kavanaugh — an outstanding, thoroughly upright person — in his role as staff secretary at the White House, where all speeches going to President George W. Bush went first to him. And hearing his opening statement to the Judiciary Committee last week, it seemed to me that no draft we speechwriters ever submitted had the inspiration of those words, composed by Brett under such awful pressure. A few possible adjustments came to mind as I listened, but any editing would only have diminished the raw perfection and utter sincerity of what he said and how he said it. If there is ever a course in rhetoric offering instruction on How to Face Down a Cruel and Sanctimonious Mob, that opening statement belongs high on the syllabus.

The surest sign of its power could be observed in the demeanor of the accuser’s two activist lawyers, visible in the background, as they looked uneasily away or down at key moments, especially at the mention of Kavanaugh’s daughter’s words: “We should pray for the woman.” So, too, appalled reactions to the judge’s unseemly “tantrum,” “outburst,” “bullying,” etc., registered only the shock of self-satisfied people who correctly sensed that they had been out-argued and, even with Brett’s angrier touches, completely out-classed. It is not true that “everyone lost” that day. The hearing’s second witness showed qualities of greatness, in a moment that will stand forever to his credit, however the fates play when the Senate roll is called. When Kavanaugh’s daughters watch the video one day, they will feel enormous pride in the courage and fortitude that saw their father through his ordeal.

The statement was variously dismissed or praised as “Trumpian” in its bluntness and disregard of convention. My friend Frank Cannon, in a column for The Hill, went a step further by observing, “For Republicans, Sept. 27, 2018, should be remembered as the day when their party became, clearly and unapologetically, the Party of Donald Trump.” And it is true that there was something about the scene that clarified, for anyone who needed it, the logic of Donald Trump’s ascension in American politics.

The judge, after all, was there in the first place courtesy of a president who has unequivocally kept his word on judicial appointments, sparing conservatives even the suspense that used to precede Supreme Court nominations by Republican presidents. And if the tone in which Kavanaugh addressed Democrats on the Judiciary Committee reflected the influence of Donald Trump, by displaying no respect for connivers who deserved none, then, yes, we could use more of it. Sometimes presidential words of conciliation and uplift are called for, and sometimes we can do without the gloss. I have never felt more attuned to the rhetorical style of our different kind of president than when, on first reaction, he called the smear campaign against his nominee the “con job” that it is.

As Bill McGurn notes in the Wall Street Journal, the worst part of all this for Kavanaugh is that it’s not even about him. His travails have nothing to do with some dark event in 1982, and everything to do with a disastrous event in early 1973, the act of “raw judicial power,” as Justice Byron White called Roe v. Wade, that smothered good will in American politics like nothing else could, corrupting everything it touches.

Roe is “settled precedent,” all right, at least as a model for the callousness, pretense, and willful disregard of fact that have marked the Democratic establishment’s treatment of the issue ever since. We wonder how politics got so raw and personal. It began to happen roughly around the time one party embraced as its all-consuming cause, forced into law by undemocratic means, and forbade among its leadership any further dissent about denying the humanity of an entire class of people. If ever the ancient axiom “evil events from evil causes spring” had application to modern politics, it is in the savaging of Brett Kavanaugh and his family.

We have all been talking about high-school yearbooks, beer-induced “blackouts,” and fictional “gang rapes” because in democratic forums that’s the only way the abortion cause ever wins — by changing the subject. Such is the strange influence of Roe that it can take anything good — in this case our current Me Too movement, with its well-placed contempt for vicious and exploitative men — and turn it to rotten purposes.

And never mind that we don’t know how Judge Kavanaugh would rule on any given abortion case. When it comes to assuring “reproductive justice,” the term of that activist who berated Jeff Flake in the elevator, mere suspicion will suffice. Senator Flake’s pro-life record, the same young woman writes in USA Today, is “an abomination.” This description, along with her manner of addressing the senator — “Look at me when I’m talking to you!” — we may take as notice that a new generation of liberals has arrived, more silly, malleable, and self-righteous than any who came before.

The senator’s own response was gentler, in a way that doubtless speaks well of him, and I have a hunch that fellow Republicans needn’t worry much about his vote. Why would a conviction conservative who has warned against the coarseness and brutality of politics now ratify that kind of conduct with the defining vote of his career? The agonizing of the last couple of weeks, the insistence on further inquiry, and the outreach to Democrats all show worthy intention — admirable, if unrequited, gestures of bipartisanship and fair play. In the end his vote should come down to one good man passing judgment on another, yielding at last a “yes” and the hardest thumbs-up any justice of the Court has ever earned.

A little more wishful is one final thought. There is another dramatic “yes” vote a lot of us would like to see — from the Democratic senator who, more than anyone in the chamber, should understand the stakes: Robert P. Casey Jr. Everything to be admired in yesterday’s Democratic party was summed up in the figure of the senator’s late father, remembered as a gallant champion of life, a man of unshakable conviction, and the last guy his party’s leadership would dare try to push around.

The governor would have seen right through the smear on a superbly qualified nominee, and he would not have stood for it. Surely the senator sees through it too. And if so, then perhaps the scene is set for his own moment of greatness. A senator who works in the very office space once occupied by the author of Profiles in Courage should need no further prompting. A reckless and arrogant political mob has forgotten that there is such a thing as honorable dissent. Who better to remind them than a Pennsylvania Democrat named Casey?

Matthew Scully — Matthew Scully, a former literary editor of National Review, served as a speechwriter for President George W. Bush and for the late Pennsylvania governor Robert P. Casey.

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