Law & the Courts

Kavanaugh and the Crisis of Legitimacy

Supreme Court Associate Justice Brett M. Kavanaugh in Washington, D.C., December 3, 2018. (Jabin Botsford/Pool via Reuters )
All the Kavanaugh coverage has been intended to undermine his tenure and lay the predicate for structural reform of the U.S. judiciary.

It is impossible to separate the latest attack on Justice Brett Kavanaugh from the political strategy of the Democratic party. On September 16, two days after the New York Times’ “Sunday Review” section told of another allegation of sexual misconduct during Kavanaugh’s college years, Axios AM, an online newsletter, described Democratic plans “to portray President Trump, Justice Brett Kavanaugh and Senate majority leader Mitch McConnell as the three villains defining the three branches of government for the 2020 campaign.” The reasoning: “Each of these white men, they will argue, symbolizes Republican corruption and rule-bending.”

Because opinions of Trump do not change, the Democrats have decided to rally their base against the two other “white men.” That is why all the major Democratic presidential candidates except for Joe Biden and Amy Klobuchar called for Kavanaugh’s impeachment after the publication of the Times essay. It is why the media gave the accusation, heard by reporters secondhand, saturation coverage. And it is why Ayanna Pressley, a member of the “Squad,” introduced a resolution to start an impeachment investigation.

Democrats are not dissuaded by the fact that Kavanaugh and the Court unite the conservative movement and Republican party like no other figure and issue. What counts to them is the Democratic base, not the Republican one. Anger, outrage, and animosity whip up voters, boost enthusiasm, and drive people to the polls.

Nor does it matter to the activist Left if the source of the allegation did not speak to the Times; if the alleged victim does not recall the incident; if the Times accompanied its story with a weird and gross tweet that it later deleted; if everyone involved in the publication of the essay turned on each other in an orgy of blame-shifting and buck-passing; if one of the authors resorted to sharing Vox articles on social media to rationalize her behavior. The goal is neither objectivity nor factuality. It is delegitimization.

All the Kavanaugh coverage for the last year has been intended to undermine his confirmation and subsequent rulings and lay the predicate for structural reform of the U.S. judiciary if the Democrats win the presidency and Senate. The disastrous rollout of this latest smear has had the ironic effect of highlighting the weakness of the original charges against him. Author Ryan Lovelace uncovered footage of Christine Blasey Ford’s attorney, Debra Katz, saying that the desire to put “an asterisk” next to Kavanaugh’s decisions “motivated” her client to come forward. Authors Mollie Hemingway and Carrie Severino report that Blasey Ford’s friend Leland Keyser did not believe her story and does not recall meeting Kavanaugh. Blasey Ford’s father, who along with Blasey Ford’s mother was noticeably absent from last year’s hearing, is reported to support Kavanaugh. There is not a single corroborating witness to Blasey Ford’s account, and the “seven witnesses” to Deborah Ramirez’s story are less than they seem.

The Kavanaugh controversy is not, as one reporter for the Washington Post described it, a “journalistic mishap.” It is a case of Democratic activists and lawmakers using journalists precisely as intended: as instruments of a political agenda. Democrats are much more aware than Republicans that the very survival of their party depends on the maintenance of the “living Constitution,” as opposed to the Constitution as written and subsequently amended. The courts have been the Democrats’ backstop. If Donald Trump transforms them, liberals would have to reckon with the voting public. Things could get ugly.

If the judiciary were to overturn Roe, end affirmative action, roll back the administrative state, protect the Second Amendment, and limit congressional power to regulate interstate commerce, American politics would look vastly different, and the constituent groups of the Democratic party would be radically disempowered. That is why the Democrats have responded so fiercely to nominations of conservatives to the bench, beginning with Judge Robert Bork in 1987. They know the stakes.

They also understand that sentiment and social position matter much more to the new woke progressivism than fact, evidence, and due process. For the Left, Kavanaugh is a symbol of structural racism and the patriarchy, the cool kid in high school envied and loathed by outsiders. Accusations against him are “credible” simply because he is the target. Only by confessing his privilege and repenting for his beliefs would Kavanaugh gain absolution and relief. The high price he and his family have had to pay for replacing Justice Anthony Kennedy also acts as a deterrent. Some judges may now think twice before accepting a nomination to the Court.

“Mankind is an incorrigibly myth-making species,” wrote James Burnham in 1958. “It is marvelous to observe how, in the history of great struggles that seem too complex for rational understanding, the participants invariably find an outward and visible symbol by which to express the essential meaning.” Brett Kavanaugh has been put in such a position. He is a stand-in for the crisis of legitimacy that is coursing through our institutions, as an emboldened cultural progressivism seeks to upend traditional understandings of American history and citizenship.

The irrepressible conflict over his office testifies to the overwhelming power of the judiciary, and to the tenuous nature of the rights the Court has invented over the last 50-odd years. Kavanaugh matters because he is a living reminder that the threat to the Founders’ Constitution comes from a left willing to break rules, and lives, to achieve social transformation.

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