Wednesday, September 19, 2018
The Dog that Didn't Bark
The news just now is all about who did what when, and how do you prove it? A former GOP Senator from Colorado who questioned Anita Hill all those years ago, helpfully offers that this is the issue, and the only issue is the veracity of the woman who claims the man assaulted her 36 years ago. Oh, and that this comes "so late" and is meant to "delay the process."
First: there is no process. The Constitution requires the Senate give "advice and consent" to the President's nominee. The Senate can do that any way it pleases. It declined to advise or consent on the nomination of Merrick Garland, did away the rule allowing the filibuster of nominees, and now moves with haste to get Kavanaugh on the bench before the October term starts, or more accurately to get him approved before the mid-term elections call an end to the Senate work calendar and shift the burden to possibly a lame-duck Senate in November, or even a Democrat-dominated Senate in January.
So bullshit on the sanctity of the "process" and the "lateness" of this revelation.
The second issue is that there is no issue of credibility in this story. That is not the question. The question is the judicial temperament of Kavanaugh. It should have been the deciding issue for Neil Gorsuch, but politics won out. Kavanaugh, as many commentators have noted, is a poor shadow, the incompetent younger brother, of the kid wearing Gorsuch's clothes but not his facility in the hearings. Kavanaugh's answers are not credible, are even credibly described as lies. And now he stands by the blanket refusal, the categorical denial: I did not have sex with that woman.
Well, he might as well say that. He has said he wasn't at that party. Which party? The woman herself doesn't know; how does he? He says he never did such a thing. Never? The stories are he was known for his heavy drinking in high school, and his drunken, loutish behavior. All lies? Nothing true in any of it? His evil twin, and not him at all? Where is the credibility in such denials?
Had he said he couldn't recall, but apologized anyway; had he said he drank heavily as a young man, behaved badly, and remembers little of it now because of the drink and the passage of time, and he offered his condolences to the woman who claimed he wronged her, it might have shown a judicial temperament, an understanding of the plight of others. Judges, after all, are supposed to be people, not Olympian Gods handing down decrees to those ants in the valley. But Kavanaugh couldn't do that; and now the issue of his personality, his personhood, who he is when he is not putting his best face forward for the cameras, is before the nation, and the Senate.
And that's the question: who is this man? All but two of the women who vouched for him originally will do so now. A large number of women who knew the accuser in high school vouch for her. Donald Trump weighs in as a character witness for a man he's probably spoken to once or twice; and frankly, with Donald "Grab 'em by the pussy!" Trump vouching for your character, you're already in trouble.
But that's the question: do we put this man on the bench for his lifetime, or do we reconsider his fitness? This case is a fine object lesson in reforming the entire Court, or even abolishing it: increase the number on the bench to 30, allow panels of 9 or 11 to hear cases to finality, select appointments by a Senate committee composed of experts who report to the Judiciary Committee, selecting the best, not the most political, and passing those on to the White House for nomination; perhaps even limiting and staggering terms on the high Court so the process is always in motion, and as removed from politics as possible.
The Court is rapidly losing its legitimacy. The air has been going out of that balloon since Bush v. Gore, a decision the Court should have never agreed to decide. Now it is clear the Court is simply another mechanism for exerting political control, especially when that control may be wrested away by the opposing party. A Court staunchly conservative in a country tired of such actions (the decisions on Obamacare alone are fraught with political peril for the entire nation; repeal Roe and watch the judicial shit hit the national passion's fan) will soon lose its integrity.
Perhaps in order to save the Court, we have to lose it. Certainly in order to save the nomination, the President has to withdraw it.
Who did what to whom when is not the issue. Who is worthy to sit on the hight Court, is. The parallel to Clarence Thomas is instructive here, as he has never been anything more than a reflexively conservative, even arch-conservative, vote; a silent toady always worried more about outcome than justice, more about ideology than the administration of the law. He has neither the temperament nor the capacity to be a judge. Do we really need another like him?
Posted by Rmj at 6:06 PM