Magazine October 29, 2018, Issue

The Week

(Roman Genn)

Complete text of Justice Kavanaugh’s first Supreme Court opinion: “I won.”

Some partisans dismayed by Justice Kavanaugh’s confirmation have turned their anger on the Senate itself, in which California (pop. over 39 million) is equal to Wyoming (pop. under 590,000). The advantage Republicans enjoy thanks to these constitutionally mandated disparities is real, though Democrats dominate many small states too (Vermont, Delaware, Rhode Island, New Hampshire, Hawaii). The relative inconsequence of large-state voters in senatorial elections is, however, deliberate. State equality in the Senate was a political necessity in 1787: Small states would not have accepted the new Constitution without it. But there was, and is, a larger wisdom at work. The United States has always been a dispersed country. Its geographic extent fosters cultural diversity. To strip the states, and the states of mind they incarnate, of their equality would be to consign power in every elective branch of government to America’s megalopolises. Happily, equal representation in the Senate is unamendable without the states’ consent.

Another post-Kavanaugh brainstorm: Pack the Court. All it takes is an ordinary federal law. In the 19th century the Court went from six justices to seven, to nine, to ten, back down to eight (as incumbents retired), then finally up again to the current nine. There it has stayed since 1869. FDR tried to add six more justices in 1937, an effort that failed spectacularly. But could Democrats succeed the next time they controlled Congress and the White House? If they did, the likely result would be Republican tit for tat. After a few such exchanges the Court might swell to 15 or 18. That is not in itself too many justices — the Supreme Court of India may have up to 31. But a Court growing in response to election returns would lose prestige. The historian Forrest McDonald argued that the genius of the Constitution was its loose joints: The branches of government could wax and wane vis-à-vis each other. So a Court that had assumed too much lawmaking leeway would get its comeuppance.

How much less fraught would the Kavanaugh hearings have been if Luther Strange had sat in the Senate for Alabama? But Bannon-infatuated voters dumped him for Roy Moore, who lost one of the reddest Senate seats this side of Utah. Don’t vote for nuts in primaries. The seats you lose are not just your own.

Senator Lisa Murkowski (R., Alaska) did not justify her refusal to vote for Kavanaugh’s nomination by arguing that he was too extreme in his views; she disavowed such concerns. Nor did she credit the allegations against him: She said he was a “good man,” which implies confidence that those allegations are false and his denials of them accurate. She rested her case, instead, on his temperament. His response to the allegations against him — allegations including attempted sexual assault and gang rape — was so heated as to create “the appearance of impropriety.” In other words: A good man, under vicious attack, is not supposed to defend himself too vigorously. In her floor statement, Senator Murkowski said, “Some accused me of being too deliberate, too thoughtful.” It is not an accusation we will make.

Senator Sheldon Whitehouse (D., R.I.) promoted the theory that Judge Kavanaugh’s calendars from 1982 provided some corroborating evidence for Christine Blasey Ford’s allegation. They included a notation for a party on July 1 that included three of the people she said were in the house where she was attacked. The theory faced certain obstacles: The July 1 party was in the wrong place, took place in the wrong kind of house, included a different set of people than Blasey Ford had indicated, and did not include Blasey Ford herself, according to one actual attendee. Blasey Ford’s team then said Whitehouse’s theory was wrong. All the same, we think this sort of sleuthing may be the best use the senator has yet found for his talents.

Like several of her Democratic colleagues on the Senate Judiciary Committee, Hawaii’s junior senator, Mazie Hirono, took full advantage of the opportunity to showboat. Soon after Blasey Ford’s sexual-assault allegation against Kavanaugh was made public, Hirono offered this nugget of wisdom: “Not only do women like Dr. Ford . . . need to be heard, but they need to be believed. I just want to say to the men in this country: Just shut up and step up. Do the right thing for a change.” Somehow, the senator managed to make an even more inane comment just a few days later. On CNN, host Jake Tapper asked Hirono whether Kavanaugh ought to be afforded the same presumption of innocence as every other American. She suggested that his conservative approach to judging made his denials less credible. Hirono perhaps deserves praise for her honesty. To the extent she became a breakout star during the Kavanaugh fight, it reflects very poorly on her party.

Kavanaugh’s confirmation was brought about in part by a man who cast himself as his most zealous and committed opponent: Democratic celebrity attorney Michael Avenatti. It was Avenatti who lodged the third and final public sexual-misconduct complaint against Kavanaugh, tweeting out to the world the fantastical and wildly implausible gang-rape claims of a woman named Julie Swetnick. Avenatti’s involvement made plain what many Republicans suspected all along: that elements of the Left would stop at nothing to block Kavanaugh and to ruin his personal and professional life. Swetnick’s claims fell apart almost immediately. Mainstream journalists couldn’t corroborate any part of her story, and when she sat for an interview with NBC News, she backtracked on her key claims against Kavanaugh. The online Left went from vocally attacking anyone who dared question Swetnick to acting as though her claims had never been made. Convenient memories seem to be becoming something of an epidemic.

Conservatives took a brief break from arguing about President Trump to support Kavanaugh and oppose the unscrupulous tactics of his opponents. Even among those conservatives who have been highly critical of Trump, most saw that the judge was being treated with monstrous unfairness. The very few conservative writers who abandoned Kavanaugh were chiefly those whose antipathy to Trump has put them on the path out of the Right generally. For all other conservatives, this episode is a reminder that whatever our concerns about Trump — some of them deep concerns — the contemporary Democratic party provides no civil or sensible alternative, any more than it did in 2016.

When Hurricane Brett was blowing full force, Ted and Heidi Cruz were surrounded by hecklers at Fiola, an Italian restaurant in D.C., who shouted, “Sexist, racist, anti-gay!” and “We believe survivors.” The Cruzes finally left. When owner Fabio Trabocchi subsequently urged people to keep elbows and politics alike “off the dinner table,” his employees received death threats. Cruz’s opponent, Beto O’Rourke, tweeted, “The Cruz family should be treated with respect.” Good for him. Intimidation-by-heckling lies between street theater and riot, moving toward the latter. There is video of the event; have perps been identified, or charges pressed? Such actions, if they continue unpunished, will lead beyond threats to violence. Or, considering the shooting of Representative Steve Scalise, to more violence. 

In a debate in Dallas, Beto O’Rourke, while calling his actions a “terrible mistake,” explicitly denied allegations that he had attempted to flee the scene of a 3 a.m. car crash near Anthony, Texas, for which he had been arrested for drunk driving. Recent reporting has revealed that Officer Richard Carrera wrote in a police report that, after the high-speed crash, the “defendant/driver then attempted to leave the scene.” But O’Rourke told the Texas Tribune that “the police report on this count is wrong,” and that his unnamed passenger that night backs up his story. Since O’Rourke blew a .136 blood-alcohol level, and since the only contemporaneous documentary evidence suggests that he did try to flee the scene, we are inclined to agree with the Washington Post’s fact-checker that O’Rourke is not the most reliable of witnesses.

One of the puzzles for biographers of the 45th president is, How did Donald Trump rebound from disaster after disaster — shuttered casinos, a failed airline shuttle — to be worth $10 billion? Partly it was exaggeration (Forbes calculates his current worth to be $3.1 billion), partly self-branding: Trump’s media savvy made him an attractive business partner. In a long report, the New York Times uncovers a third reason: Trump absorbed huge chunks of his father Fred’s real-estate empire without paying gift or estate taxes. Many of the tax shortcuts father and son used are legal trusts. Others were dodgy: The “main purpose” of one Trump family company, All County Building Supply & Maintenance, “was to enable Fred Trump to make large cash gifts to his children and disguise them as legitimate business transactions.” (All County bought services and supplies cheap, and billed Fred Trump for them high, with the children pocketing the difference.) Trump spokesmen deny everything, and the statute of limitations has long run out. The lesson for assessors of reputations: caveat emptor. 

The recovery has passed an impressive new milestone: The unemployment rate reached 3.7 percent in September, its lowest point in almost 50 years. As usual, success has spurred many claims of paternity; President Trump has proudly taken ownership of each positive new development, while last month his predecessor urged that we “just remember when this recovery started.” One should resist the temptation to assume that presidents, or even governments more generally, have a great degree of control over the business cycle. A full decade out from the Great Recession, though, it’s nice to finally have an economy worth taking credit for again.

After trashing NAFTA for years and calling it “the worst deal ever made,” President Trump agreed to the U.S.–Mexico–Canada agreement (USMCA), a trilateral trade deal. (The name “NAFTA 2.0” was not an option.) The deal is far from perfect, but it beats the alternative of pulling out of NAFTA with no replacement for it and represents an encouraging sign that the Trump administration will stop short of truly reckless action on trade. In some areas, the agreement improves on NAFTA, for example by slightly reducing Canadian barriers to the dairy market and modernizing rules on digital commerce and intellectual property. Gone is Wilbur Ross’s ridiculous idea to attach a five-year expiration date to the agreement, along with other foolish demands made by protectionists within the administration. On the other hand, tightening the automobile rules of origin is a bad idea that could drive car manufacturers away from North America. If Democrats take the House come November, it may not get off the ground. But a trilateral agreement with Mexico and Canada is a good idea, and we are pleased to see that Trump agrees.

A rare win for the pro-life movement in California: Governor Jerry Brown has vetoed a bill that would have required public universities in the state to provide students access to medication-abortion pills. Acknowledging a point that pro-life groups such as the Students for Life of America made against the legislation, Brown said abortion is available to students close to campus, so it is unnecessary to compel universities to provide it. Had it passed, the bill would have been the first of its kind in the country. For now, this newest frontier of the abortion campaign has been closed off.

But Brown also signed into law a foolish measure that purports to force every publicly traded corporation in California to have at least three women on its board of directors, or two women if the board has five or fewer members. Governor Brown’s efforts have a few problems: About 75 percent of the publicly traded companies headquartered in California meet his sexual quota, but an even larger share — 80 percent — are legally incorporated in a different state, most of them in Delaware. Under federal law, corporations are subject to the laws of the state in which they are incorporated, not the laws of the state in which they have their main office. As the California Chamber of Commerce notes, the law will in practice require dismissing current board members solely on the basis of their sex, which puts it at odds with existing state and federal law, as well as the California constitution. (The U.S. Supreme Court also has long held that sexual discrimination violates the Constitution, though this claim has no textual basis.) It’s the usual identity-politics, symbolism-over-substance approach. But we wonder whether it has occurred to Governor Brown and his friends to ask why it is that so many allegedly Californian businesses are as a matter of law Delawarean businesses? He has just given those businesses another reason not to incorporate in California and thereby take on its political burdens. Governor Brown’s bill is good business: for the post-office-box business in Wilmington.

For the first time in more than 50 years, a Chicago jury has convicted an officer of murder for a shooting in the line of duty. Laquan McDonald was carrying a three-inch knife and walking away from Jason Van Dyke when the latter shot the former. The verdict marks an important moment in the contest over the use of force by police. Typically, when an officer is involved in a questionable shooting, the mere invocation of fear is enough to keep a jury from convicting. Juries are reluctant to “second guess” the actions of officers when they make split-second decisions. The law, however, requires some second-guessing, because it considers a shooting justified only if based on the “reasonable” fear that an officer or another party faces imminent death or serious bodily harm. Not all fear is reasonable. By holding Van Dyke accountable for his unreasonable actions, the Chicago jury both achieved a degree of justice for the deceased and took steps towards restoring a degree of trust between a justice system and the community it protects.

At a rally in West Virginia, President Trump spoke of his relationship with Kim Jong-un, the North Korean dictator. “We were going back and forth, and then we fell in love, okay? No, really. He wrote me beautiful letters, and they’re great letters. We fell in love.” Kim, remember, is the murderous dictator of a gulag state. The United States may have to deal with such leaders — but with our noses held. Untold millions around the world look to the United States to stand up, in some degree, for freedom and justice. This is especially true of people under dictatorship. They hear us — and we have certain obligations to them. When he made his remarks, Trump knew he would be criticized. “They’ll say, ‘Donald Trump says they fell in love. How horrible. How horrible is that?’” They will indeed say that, and for good reason.

In the Vietnam War, many Vietnamese assisted American forces, making it dangerous for them to remain in their country after the war. We took many in, as refugees. In the Iraq War, many Iraqis assisted us: as interpreters, drivers, security guards, etc. These men and women are known as “U.S.-affiliated Iraqis.” As with U.S.-affiliated Vietnamese, it was dangerous for them after the war. We have an obligation to take them in. The human consideration aside, it is in our security interest: If people are going to assist us in the future, they have to know that they have an escape route. For each of the past several years, we have taken several thousand Iraqis in. This year, the number has plummeted to 51. By all means, screen carefully — but we must remember our obligations, and our interests.

As of this writing, it appears that Jamal Khashoggi has been killed — killed by a team of Saudi agents at the Saudi consulate in Istanbul. Khashoggi was (is?) a liberal-minded journalist from Saudi Arabia. He was once close to the regime but broke with it during the Arab Spring uprisings of 2011. “This was a critical period in Arab history. I had to take a position. The Arab world had waited for this moment of freedom for a thousand years.” Khashoggi fled to the United States when the man known as “MBS” took over: “I would say Mohammed bin Salman is acting like Putin.” An alliance with the Saudi dictatorship is important to the United States, particularly in light of Iranian maneuvers, but no one should be under any illusion about what that regime is.

• The more openness about the Kremlin’s machinations, the better. The Dutch government has been very open. They are laying out raw evidence. Russian agents tried to hack the OPCW — the Organization for the Prohibition of Chemical Weapons — in The Hague. In Malaysia, they spied on the team investigating the downing of the civilian airliner over Ukraine in 2014. They hacked the World Anti-Doping Agency. They planned to hack the laboratory in Switzerland where deadly nerve agents, employed by the Kremlin, are examined. They are busy bees, these agents. Good for the Dutch for laying it all out. Know thine enemy.

In the world of Chinese officialdom, you can fall very quickly — and be disappeared very quickly. This is what happened to Meng Hongwei. He was China’s vice minister of public security, but, more important, the president of Interpol. Meng was the first Chinese person to be appointed to this position. Interpol is based in Lyons, France. Meng went home to China for a visit. Then he went missing. His wife received a message from his phone, just an emoji: a knife. The Chinese regime is now saying that Meng is being charged with bribery. Don’t start a betting market on the verdict.

Bloomberg Businessweek published a blockbuster report alleging that the Chinese government had infiltrated the computer networks of almost 30 American companies. According to the report, Chinese military officials tampered with critical computer hardware between 2013 and 2015, inserting tiny microchips into parts made by Super Micro Computer, Inc., that are in common use in global supply chains. Servers run by Amazon, Apple, and a government contractor that has worked with the CIA, among others, were reportedly compromised. Most parties involved have strongly denied the story; Businessweek stands by its report and claims the FBI has launched a counterintelligence investigation into the matter. If true, the story is a sobering reminder that the Communist Party of China considers the U.S. its competitor — not simply a counterparty in the global marketplace.

Brazil’s general election is headed to a second-round runoff, with Jair Bolsonaro having come just short of the 50 percent threshold needed to win the presidency in the first vote. Bolsonaro will be the favorite in the coming contest against left-wing candidate Fernando Haddad. The prospect of a victory for Bolsonaro, who speaks favorably of the old military dictatorship and promises extreme measures to tackle crime and corruption, has prompted hyperventilation from the international press. Much of this concern is justified; the guardrails protecting democracy in Brazil are corroded, and Bolsonaro’s authoritarian tendencies are obvious. But his undeniable popularity comes amid recession, rising crime, fears of a Venezuela-like collapse, and never-ending corruption scandals. Now Brazilians may elect a man who promises, however dubiously, to change a dysfunctional political system.

In 2016, we published a piece by Jay Nordlinger that began, “Denis Mukwege is one of the most honored men in the world.” He is even more honored today, having been announced as a co-winner of the Nobel Peace Prize. Mukwege is a Congolese doctor who treats rape victims. His country has long been notorious as “the rape capital of the world.” Rape is a weapon of war, and Congo is perpetually at war. Mukwege’s patients include infants (yes) and the aged. The burdens, especially psychological, are immense. Not greater, however, than those of Nadia Murad, the other winner of the 2018 Nobel Peace Prize. She is a Yazidi and a former sex slave of ISIS. She is now a human-rights activist. So, the Nobel committee has made a statement against sexual violence in the world. It will not curb such violence, but to honor those who work against it is a good in itself.

Let’s be civil, said NASA astronaut Scott Kelly. Let’s be gracious. No, snapped his interlocutors on Twitter. They were indignant that he had invoked Churchill, whom he identified as “one of the greatest leaders of modern times” and quoted as saying, “In victory, magnanimity” (followed by the comment “I guess those days are over.”). Critics quoted Churchill back at him, schooling him on the habit of the British Bulldog to assume the racism of his era, although you would think that he earned some points for his moral clarity about Hitler in the 1930s, when the rest of England mostly slept. Following his own advice, Kelly apologized: “Did not mean to offend. . . . I will go and educate myself further on his . . . racist views which I do not support. My point was we need to come together as one nation. We are all Americans.” That gesture provoked a firestorm of criticism from those who thought Kelly was right the first time, plus a second round of invective from those who thought that he was wrong the first time and now that his apology wasn’t good enough. Imagine the comments if Lincoln had tweeted his Second Inaugural.

Scholars James Lindsay, Helen Pluckrose, and Peter Boghossian did a great service exposing the nature of grievance-studies “disciplines” when they managed to get seven hoax papers accepted for publication in academic journals. They called the experiment “Academic Grievance Studies and the Corruption of Scholarship.” And the eagerness with which their eloquent absurdities were embraced is hilarious and disturbing in equal measure. Gender, Place, and Culture published their article exposing rape culture in dog parks; a feminist journal accepted their paper interwoven with excerpts from Mein Kampf; while their contribution to Cogent Social Sciences, which argued that the “conceptual penis” is “better understood not as an anatomical organ but as a gender-performative, highly fluid social construct,” was well received. Meanwhile, this publication — albeit not an “academic” one — holds that these so-called “social sciences” have as much use as the chocolate teapot and as much substance as the conceptual cheese soufflé.

For decades, a statue of a Gold Rush miner stood on the campus of Long Beach State University, reminding passers-by of the gritty determination that characterized the area’s pioneer heritage. The miner figure, nicknamed “Prospector Pete,” became a symbol of the college and its mascot at athletic events. Recently, though, Prospector Pete has been condemned with such ferocity that you’d think he was a Supreme Court nominee. The reason: Gold Rush miners mistreated Indians — as did pretty much everyone in the mid 19th century — and therefore the Gold Rush was a bad thing. In response, the administration has decided to move the statue to the alumni center (graduates are allowed to hold unapproved opinions as long as they keep donating), and the sports teams’ nickname will be changed from “49ers” to “1949ers” (the year the college was founded), just so no one gets the wrong idea. We’re sure this change will make California’s Indians feel much better, but perhaps a less draconian solution exists. Remember, 49ers were poor but ambitious types who traveled long distances over inhospitable terrain to scratch out a living in a strange new land. Why not just change the mascot’s nickname to “Migrant Laborer Pete,” and everyone can be happy?

At Sotheby’s recent art auction in London, a painting by the British “street artist” known as “Banksy” was sold for $1.4 million — and it came with a surprise. As soon as the hammer fell, a mechanism hidden in the painting’s frame began to run, and it shredded half of the painting before coming to a stop. Was this a Buddhist-style reminder of the ephemerality of beauty? A gesture of contempt for rich but soulless art buyers? Insiders suggest that the reclusive Banksy arranged the stunt to protest ever-higher auction prices, but it seems to have had the opposite effect: The ragged painting has acquired instant iconic status, and as conservation experts work to preserve each gash and scrap of fabric, dealers say the controversy will make the artist’s future pieces more expensive than ever. Hey, wait a minute, you don’t think that was the idea all along . . .

For Eggshells, her debut novel, about a terribly eccentric woman bouncing around Dublin, Caitriona Lally won this year’s Rooney Prize for Irish Literature. The author has bounced around a bit herself, working as a copywriter when she wasn’t an English teacher in Japan or a housekeeper in New York. Lately she starts her weekday mornings with a maintenance crew, cleaning up her alma mater, Trinity College. She gets off work at 9:30 and goes home to take care of her toddler daughter, and to write. “It is a nice thing to win a prize for writers under 40, especially when you are 39 and three-quarters,” Lally says of the Rooney, which comes with a cash award of 10,000 pounds. It was established in 1976 by the owner of the Pittsburgh Steelers, so revise your stereotype of NFL honchos, after you’ve done likewise for janitors, and for writers.

A suburban–St. Louis soccer mom has sued her son’s high school in federal district court because the soccer coach cut her son from the junior-varsity team. The coach said the boy had not improved enough to make the varsity, and he needed to open up JV spots for younger players. In response, the mom’s lawyers have presented evaluations purporting to show that players less skilled than her son were kept on the team. She is also claiming gender discrimination because the girls’ soccer teams do not cut players (since fewer girls than boys go out for soccer). The mere fact that such a suit could be filed makes us want to apologize to Madison and Jefferson, but we are happy to report that the judge summarily rejected the mom’s request for a restraining order — a decision that will soon be followed, we hope, by giving the litigious lady a red card and sending her off the field.

Jeff Maher of Colpiah County, Miss., spotted a couch on the roadside and took it home. Cleaning it, he found a gold wedding ring and began to make some mental calculations. He noted the initials on the band. They matched those of the governor and his wife, Phil and Deborah Bryant, who, Maher was aware, owned property in the area. Maher called the governor’s office. Bryant drove out to meet him, to receive from him that morsel of metal and, of course, all the symbolic and sentimental value attached to it. They posed for a photo. Bryant posted it on Twitter, above a thank-you message to “my friend Jeff Maher,” who “found my original wedding ring from 1976. . . . It had been lost since 1989,” which is about when Phil and Deborah had given her cousin the couch and, unwittingly, that little piece of jewelry tucked inside. The long-lost friend is now reunited with its owner, who made a new friend in the process — good work, Mr. Maher.

“Wake up! You’re not going to die today!” Staff Sergeant Ronald Shurer, a Special Forces medic, screamed at his severely wounded teammate, Sergeant Dillon Behr, as he packed him with clotting agent and attempted to stem the bleeding. It was April 2008, and the action in Afghanistan’s remote Shok Valley had gone to hell. A joint team of American and Afghan commandos were pinned down and dispersed, taking heavy enemy fire. For six hours, without any regard for his own safety, Shurer moved hundreds of meters between American detachments, rendering aid to the wounded and killing several enemy fighters. Repeatedly exposed to gunfire, Shurer was shot in the helmet and wounded in the arm, but he continued in his duties, at one point evacuating three critically wounded men by lowering them down a near-vertical 60-foot cliff. Through his action and heroism, all the wounded allied soldiers’ lives would be saved. “Ron’s presence in that time and being able to keep calm and cool and collected while administering to my injuries is the only reason that I’m alive today,” Behr later said. On October 1, Shurer’s Silver Star was upgraded, and he was awarded the Congressional Medal of Honor at a White House ceremony. A grateful nation honors him.

Walter Laqueur’s many books form a general history of the great political events of the age. His experience led him to think hard and carefully about the shape of the future. At almost the last possible minute, he escaped from Hitler’s Germany to what was then British Palestine, later Israel. Learning Hebrew, Arabic, and Russian, he made it his specialty to describe how a nation or a culture interacts with others. In London for most of his career, he was one of the most influential critics of Nazism and Communism and then of terrorism. European nations, he came to think, were once again misunderstanding threats to their existence and would soon become so many museums. Giving way in his life and his writings to a humorous pessimism all his own, he moved to Washington and died there, aged 97. R.I.P.

Justice for Justice Kavanaugh

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 controversy, opponents of Kavanaugh 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 proofs; because there is nothing to be gained by establishing a heckler’s veto over the Senate’s confirmation processes.

It is true, of course, that Judge Kavanaugh was not “on trial” in a formal sense. But neither were the accusations against him part of a “job interview,” as his foes’ facile talking point had it. His character was traduced, and the Senate was asked effectively to rule against him, even though the balance of the evidence was in his favor. Had the Democrats succeeded, the precedent would have been disastrous.

Arrayed against the judge were the academy, the entirety of the American news media, Hollywood, and the institutional Democratic party. And they threw everything they had at him. The old saw holds that if a journalist is told that his mother loves him, he should check it. The practice in this controversy was that if a story hurt Judge Kavanaugh, it should be screamed from the rooftops. No allegation was 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 fever dreams of boat attacks reported by trolls on Twitter.

When the sexual-misconduct allegations didn’t seem to be going anywhere, Kavanaugh’s opponents focused on his “temperament,” by which they meant his impassioned defense of his good name at the hearings. This attack, too, is mostly made in bad faith. If Kavanaugh had seemed cool and cautious after Christine Blasey Ford’s performance earlier in the day, his nomination would have been dead. Besides, he wasn’t before the Senate to be the neutral arbiter of an arcane legal dispute, but to defend himself as the accused, and the maligned. 

Kavanaugh’s critics also maintained that he had lied in his testimony by minimizing his drinking and deceiving the senators about slang terms in his yearbook. But he admitted drinking to excess, and evidence supports his versions of the meanings of the now-famous terms “boof” and “Devil’s Triangle.”

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. 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.

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 defense of Kavanaugh 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 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.

NR Editors includes members of the editorial staff of the National Review magazine and website.

In This Issue



Books, Arts & Manners


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William Tecumseh Sherman: A Warrior in Full

Statues of William Tecumseh Sherman stand throughout the country, including a striking gilded-bronze one by Augustus Saint-Gaudens outside Central Park in New York City. Reading a biography of Sherman in the context of the current spate of iconoclasm brings home how anyone looks immaculate on a pedestal, or to ... Read More

William Tecumseh Sherman: A Warrior in Full

Statues of William Tecumseh Sherman stand throughout the country, including a striking gilded-bronze one by Augustus Saint-Gaudens outside Central Park in New York City. Reading a biography of Sherman in the context of the current spate of iconoclasm brings home how anyone looks immaculate on a pedestal, or to ... Read More

The Man Who Wasn’t There

At first glance, Joe Biden’s strategy of avoiding the spotlight is paying off. He maintains his consistent lead over Donald Trump in national polls. In June, in the aftermath of the Lafayette Park fiasco, his advantage in the RealClearPolitics average expanded to ten points. The critical swing states of ... Read More

The Man Who Wasn’t There

At first glance, Joe Biden’s strategy of avoiding the spotlight is paying off. He maintains his consistent lead over Donald Trump in national polls. In June, in the aftermath of the Lafayette Park fiasco, his advantage in the RealClearPolitics average expanded to ten points. The critical swing states of ... Read More
Economy & Business

What’s an ‘American’ Car?

I’m not too sure about Dmitri’s ode to American cars, because I am not too sure what is an American car. In what sense should a Jeep Compass manufactured in Mexico be thought of as American while a Mercedes GLE made in Alabama isn’t? The answer cannot be corporate ownership: Both companies have ... Read More
Economy & Business

What’s an ‘American’ Car?

I’m not too sure about Dmitri’s ode to American cars, because I am not too sure what is an American car. In what sense should a Jeep Compass manufactured in Mexico be thought of as American while a Mercedes GLE made in Alabama isn’t? The answer cannot be corporate ownership: Both companies have ... Read More