The U.S. Supreme Court has a new justice—a very conservative one who it is anticipated will tip the balance of power in ways that will profoundly affect every American citizen one way or another for years to come.
Some will rejoice. Others will lament what happened.
But however each of us feels, that is not the principal lesson to be drawn from this bitterly contested nomination. In our system there will always be winners and losers. It is how that is determined which matters most.
The battle is over, but there is every indication the war has only just begun.
This does not bode well in a nation already bitterly divided where the allegations against Justice Brett Kavanaugh—not conclusively proven but so incendiary produced a firestorm of outrage among women and men as well which leaves a permanent stain on his name and possibly that of the court.
It also called into question the fundamental fairness of a governmental proceeding which denied accuser and accused, Republicans and Democrats, supporters and adversaries alike the benefits of a fully convincing, thoroughly credible and constitutionally warranted investigation.
The FBI—entrusted with that task and sworn to absolute impartiality—was apparently instructed otherwise.
With the slender 50-48 vote confirming this hotly contested nomination, we have taken a big step toward politicizing the nation’s highest tribunal to a degree never envisioned and capable of unleashing citizens’ fury about which we were forewarned by our founders.
The last time a Supreme Court judge was confirmed by such a narrow margin was in 1881.
James Madison in The Federalist Papers, argued prophetically, “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason.”
He was thinking about ancient Athens before the Enlightenment where 6,000 citizens were required for a quorum which invariably resulted in mob rule.
In the United States it may have taken only the misguided decisions of a handful of Senators and a truth-allergic leader resolute on achieving a single objective to arouse a susceptible populace.
The Supreme Court was not intended to be an appendage of any governmental body but a totally independent institution whose integrity and fairness needs to be inviolable and whose rulings without exception must be rendered with greatest impartiality to the extent humanly possible.
While that may be a very high standard especially in light of the over-heated atmosphere and raging animosities swirling today, the appointment of an individual regardless of one’s impeccable academic and career credentials who attributes his opposition to a “left wing conspiracy”, “a witch hunt”, “revenge on behalf of the Clintons” and “a calculated and orchestrated political hit,” strains credulity.
If the intention was to paint Kavanaugh as the victim and those opposing him as evil doers, it did not wash for the millions more inclined to believe his accuser.
If the strategy worked there will be another reckoning in less than 30 days when voters head to the polls.
In the end, Kavanaugh’s inelegant outbursts and unrestrained insults aimed at skeptical questioners mattered not a whit.
As to one thing the newly-seated Justice said there can be common agreement: “It was a national disgrace”.
But that was not the fault of a visibly shaken though otherwise well educated, calm, earnest and troubled victim of alleged sexual abuse willing to tell her harrowing story.
That was the fault of a chaotic, disorderly, very un-Senate like public display that dissolved into angry outbursts by several senators who were more interested in making home-state pleasing speeches than in finding the facts.
To his credit Arizona’s GOP Sen. Jeff Flake asked for a week’s delay which as it turned out changed nothing.
To her greater credit, GOP Sen. Lisa Murkowski of Alaska, was the only Republican to heroically break with her party: “In my conscience I could not vote for him,” she said.
It should be noted that the rate of sexual assault in Alaska is reportedly three times the national average.
Dr. Christine Blasey Ford came forward to give her searing account of what happened despite threats to her and her family’s life. Even the President acknowledged her testimony was “credible”. For those who still doubted her veracity, there could only be two fundamental questions remaining:
If it had not happened, why would she agree to testify under oath and why did she wait so long?
Her unadorned response: She saw it as her civic duty.
Women victims throughout the nation are also answering those questions and if issues bearing on sexual assault ever come up before the Court, another question likely to be asked is: “Should Justice Kavanaugh recuse himself?
The absolute truth may never be known as was the case in the Anita Hill/Clarence Thomas hearings a generation ago.
Once again it boiled down to believability.
And just as then, this was not a trial where the burden of proof lie with the accuser except that the heinousness of the alleged crime, the evasive answers of the nominee who refused to submit to a lie detector test, failed to be questioned by the FBI, discouraged other witnesses coming forward, and may have committed perjury in prior nomination hearings, are not reliable signs of innocence.
An even more disturbing question if it should ever reach the high court could pertain to criminal wrongdoings of the sitting president who went to great lengths in support of Justice Kavanaugh’s troubling candidacy.
With so many other available and equally or better qualified candidates who might have gained easier acceptance, the perils in getting Justice Kavanaugh confirmed can only be explained by an intense desire to put conservatives with the most extreme views on the court open to carrying out Trump’s promises.
Only time will tell if he has succeeded.
What is certain is the clearly partisan breakdown among the Court’s current members: Five of the sitting justices were appointed by Republican presidents and four by Democrats.
This was of less consequence when Justice Anthony Kennedy, a conservative centrist who Kavanaugh is replacing and who sometimes voted with his more liberal colleagues was the critical swing vote.
Many of the Senators who approved will be gone sooner or later as will the president who is now gleefully declaring victory. Depending on your ideological bent, the damage may have already been done.
If it is true that as the nation currently goes so goes the court, with this appointment, it’s future place in the overall scheme of things becomes a subject of continuing speculation.
Justice Elena Kagan in a recent talk at Princeton University summed it up very well:
“Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country now.”
Or we can turn to Ben Franklin, another founding father who upon the final inking of the Constitution was asked by another signer,
“What have you given us? Franklin replied, “A Republic if you can keep it.”