Law & the Courts

Fallout from the Kavanaugh Hearings: A Permanent Cloud?

Judge Brett Kavanaugh testifies in front of the Senate Judiciary committee regarding sexual assault allegations at the Dirksen Senate Office Building on Capitol Hill, in Washington, D.C., September 27, 2018. (Gabriella Demczuk/Reuters)
After the trial by fire, he could prove to be one of the most fearless, principled justices on the Court.

Conventional wisdom suggests that, if confirmed, Supreme Court Justice Kavanaugh forever will be “smeared” and stained by past frenzied unfounded allegations of sexual assault.

Yet the opposite just as well may be true. As a Supreme Court justice, Kavanaugh would have withstood every imaginable smear and slander and yet stayed defiant in defending his character and past, proof of both his determination and principles. His near-solitary rebuttal to his Senate accusers may suggest that Kavanaugh could prove to be among the most fearless justices on the Court.

Indeed, the only lasting effect, if any, of the serial smears lodged against him might be that in the future, as in the case of Justice Thomas, Kavanaugh would be essentially immune from progressive media attacks. What he went through likely has inoculated him from the Georgetown-party-circuit syndrome of conservative Supreme Court judges’ eventually becoming more liberal by the insidious socialization within the larger D.C. progressive media, political, and cultural landscape.

Incidentally, contrary to popular opinion, Clarence Thomas hardly remains under a permanent cloud after his ordeal. What stopped further Robert Borking for a while was the resistance and pushback of Clarence Thomas. Far from being ruined by unproven charges, he resisted the mob, got confirmed, and thereby established a precedent that innuendo, ipso facto, would not derail a nominee. For three decades, Thomas has not been regarded as suspect by most Americans but is seen as inspirational for his courage in facing down character assassination.

We have a strange standard of calibrating relative Supreme Court comportment. Thomas certainly has never said from the bench anything remotely like Justice Ginsburg’s “Frankly, I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

Nor has Thomas weighed in on contemporary politics with the zeal of Ginsburg’s defiant political slap:

I can’t imagine what this place would be. I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.

Ginsburg then suggested that a possible Trump victory in 2016 reminded her of what her late husband might have said: “Now it’s time for us to move to New Zealand.”

Nor at his confirmation hearings did Thomas speak of his qualifications in anything approximating racially chauvinistic terms, analogous perhaps to “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Being unfairly smeared by Senate Democrats for decades will not keep one under a permanent cloud of suspicion, but one might be after weighing in from the bench in support for eugenics, or talking about moving from the U.S. after the election of an opposition president, or espousing racial chauvinism.

The Courageousness of Coming Forward?
We are asked to believe that accusers of sexual harassment are to be believed, apart from their gender and ideology, because “coming forward” cannot be an easy thing to endure and leads only to infamy, shaming, and loss of privacy (rather than book contracts, media empathy, and movie renditions). But it depends.

No doubt, in the short term, perhaps the attention is adverse. In the long-term calculus of progressive politics, however, the assured public recognition can lead to career enhancements and publicity that are hardly negative, especially if one, in Joan of Arc fashion, is seen as the person who saved, or at least attempted to save, the progressive community from a conservative such as Supreme Court Justice Brett Kavanaugh.

In other words, our popular culture, universities, foundations, media, celebrity world, publishing, Hollywood, and entertainment industry are both progressive and powerful adjudicators of our national culture. Those who lodge accusations of sexual harassment against conservative political figures are canonized in such circles (e.g., an Anita Hill); those who come forward to lodge complaints against liberal political figures (e.g., Monica Lewinsky, Juanita Broaddrick, Paula Jones, Kathleen Willey, Karen Monahan) are demonized and shunned.

Call out Keith Ellison for recently alleged sexual battery, or produce a police record of an earlier complaint (such as a record of a 911 call from 2005), and one is at best ignored and at worst demonized; call out a teenage Brett Kavanaugh for an alleged sexual assault 36 years ago, without corroboration, and one is lauded as courageous if not saintly. Again, the common denominator has never been just allegations of sexual assault per se, but also the respective ideologies of the accuser and accused.

Policing the Police
One of the weirder aspects of the Kavanaugh spectacle was the sanctimoniousness of Senate Democrats who picked away at Brett Kavanaugh’s high-school yearbook of some 36 years past. In the past ten days, we have been lectured, admonished, and sermonized by an array of the senior leadership of the Democratic Senate, who by any fair ethical standard have long ago been found ethically wanting.

Senator Corey “I Am Spartacus” Booker may be a Stanford and Yale graduate and a Rhodes scholar, but such résumé entries only remind us how empty many elite CVs have become. Booker, remember, had given serial lectures about his pal “T-Bone,” a sort of street-hustling Socrates who hung with Corey — except he could not have, because the Bone never existed.

Senator Elizabeth Warren has also warned us about the dangers of Brett Kavanaugh and reminded us that he is not to be believed — this from someone who invented out of whole cloth a Native American identity that was likely designed to enhance her academic career.

Senator Feinstein weighed in often on the ethics of Brett Kavanaugh. Feinstein, who has a propensity for withholding information from Senate colleagues, as we saw in the matter of Christine Ford’s written accusations, recently disclosed that five years ago the FBI had informed her (she then chaired the Senate Intelligence Committee) that her chauffeur of 20 years, and gofer, was also a two-decades-long Chinese spy — at a time when her husband was making money from business deals with China.

Senator Richard Blumenthal often seems a troubled, sad figure. Every time he warned Judge Kavanaugh of the consequences of lying, he seemed to be subconsciously referring to his own fabricated alter ego as a Vietnam War combat veteran. Or as the pretentious Blumenthal put it at the Kavanaugh–Ford hearing: “falsus in uno, falsus in omnibus” (false in one matter = false in all matters). Yet, if Kavanaugh had wished to show off his own Latin in replying to Blumenthal, he might have used the more appropriate line from Horace: Mutato nomine de te fabula narrator (change only the name and the story is about you).

Senator Joe Biden has also periodically weighed in on Kavanaugh’s unsuitability and lack of credibility — Biden, the past plagiarist who once appropriated the “coal miner’s son” story of British Labor politician Neil Kinnock, fabricating an entire ancestry of working-class Biden coal miners.

The list of such hypocrisies could be expanded, but the point is that the present progressive leadership has been reduced to haggling over Kavanaugh’s teenage past, when any such commensurate scrutiny of their own adult years would have found many of them “allegedly” not living up to their own exalted moral standards. No doubt had Kavanaugh made up a “T-Bone”-like chum a few years ago, or confessed that his intern for two decades was a Chinese spy, or claimed that he was a combat veteran of Iraq, or suggested that he was the first of the coal-mining Kavanaugh clan to go to college or was rumored to have bothered female Secret Service agents by swimming nude in front of them, or had disclosed to the committee that his supposedly factual autobiography, in Barack Obama style, upon examination, was actually a fictive and impressionistic story, or had proudly talked of belonging to a high-school chronic-marijuana-smoking cadre (the “Choom Gang”) he would have been summarily disqualified.

Moments Matter
The gloomy morning of the Kavanaugh inquisition saw Republicans senators timidly outsourcing their examinations to veteran prosecutor and the designated questioner of Ford, Rachel Mitchell. Yet soon committee members were paradoxically blamed for bringing in a sympathetic prosecutor to ensure that her questions to Ford would be far more accommodating than their own might have been. Mitchell’s inquiries eventually proved mostly mere depositions.

Occasionally when Ford was contradictory and obviously mistaken about facts and details (e.g., her admission that she had no actual record of any fear of flying, or was confused about how her therapist’s notes ended up in the press, or couldn’t reconcile the differing number and gender of witnesses in her various spoken and written accusations), Mitchell gently receded rather than pressed. There often seemed little point to her interrogatories other than not to bother the sometimes contradictory and confused Ford. Her five-minute intervals left listeners hanging for some sort of summation that was never forthcoming.

In short, by noon, television pundits voiced conventional wisdom that Ford was “believable” and certainly empathetic. Emotions trumped logic. Assertion outweighed evidence. Kavanaugh was all but through. Perhaps, we were told, Trump would soon be forced to dump him as a loser. The midterm blue wave would then be assured. The stampede had started.

Then in mere minutes these assertions of the punditocracy simply vanished.

Kavanaugh turned out not to be the tentative, spoiled frat-brat, as caricatured in the media and senatorial character assassins. Instead, he was fiery, unapologetic, combative, completely informed, and knowledgeable. He wagered his entire career, past, present and future, on principle, and so damned without restraint his McCarthyesque accusers who at least for a few moments seemed to cower in silence.

When Kavanaugh was done, a few unexpected “teachable moments” followed.

One, Senate Democrats appeared momentarily taken back and startled that anyone might fight back as they had attacked. They were soon reduced to fixating on teenage flatulence and high-school nerd talk, as if having once been 17 was a disqualification (as well as being suburban, white, and affluent), 36 years later, for serving on the Supreme Court — as if any of the present justices, other than Clarence Thomas, had ever been interrogated about their high-school calendars. Kavanaugh drew back the curtain and revealed himself as a “Have you no decency?” Joseph N. Welch, and the Democrats as a creepy collective Joe McCarthy.

Second, seemingly out of nowhere, Senator Lindsey Graham grabbed back his proper role as a senatorial examiner. He lambasted not just Kavanaugh’s accusers but the entire stunt of reducing a fine man to little more than a two-bit rapist on nothing more than 36-year-old, stale, contradictory innuendo — all in order to prevent a 5–4 conservative majority on the Supreme Court, the mechanism of enacting progressivism without relying on either public or legislative support.

Not since Ronald Reagan grabbed back the mike (“I am paying for this microphone”) during the 1980 New Hampshire primary debate had a Republican flashed such anger. In a nanosecond, Graham had become iconic, and perhaps crowned his career in principle, in the opposite fashion of the pitiful octogenarian Dianne Feinstein, who had all but ruined hers by chronic dissimulation, machinations, and rank expediency.

Third, the Republican committee itself became emboldened by Graham. Suddenly the erstwhile timid senators shared a collective Howard Beale moment — “I’m as mad as hell, and I’m not going to take this anymore!” — and began expressing their outrage. For a while, the Democrat senators were mute, in deer-in-the-headlights fashion, as if to suggest, “How dare you expose our character assassination — and now that you have, we have absolutely nothing to say in our defense.”

History is not always constructed by résumés and staged theatrics but occasionally is the stuff of moments of defiance.


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