As a keen observer of the Supreme Court of the United States of America, it is perhaps a little uncharacteristic for me to have been oddly silent about Brett Kavanaugh's nomination following Anthony Kennedy's retirement for so long.
Truth of the matter is - I am not ecstatic about Kavanaugh's nomination. Unlike Neil Gorsuch whom I was gushing over for the most part of last year, I feel that Kavanaugh is wishy washy on his judicial philosophy. He seems to be so eager to appease everyone, as evidenced by the hearings, that I don't really know how the way he judges can be best approximated.
At worst, he's another David Souter. At best, he would be somewhat similar to current Chief Justice John Roberts. I am inclined to think that he's more of the latter as a justice - and that's sort of a relief, well, at least compared to being Souter Jr. In a nutshell, Roberts is moderately conservative, and I use the term "conservative" here not in a political sense, but a legal sense - meaning to say that whomever I think is more legally conservative is more of an originalist in the way that he interprets the laws and especially the Constitution, and exercises judicial restraint over judicial activism. I feel that Kavanaugh is similar to Roberts (being a moderate conservative) based on his past decisions. (For more on what Originalism entails, see my earlier post on Neil Gorsuch)
Someone more conservative on the other hand, such as Justice Clarence Thomas, does not shy away from his Originalist outlook - having boldy asserted that an Originalist interpretation of the Constitution trumps the concept of 'Stare Decisis' - otherwise known as 'Judicial Precedent'. 'Judicial Precedent' is a concept which establishes that past decisions are binding upon future decisions. Based on what I have observed in the hearings, Kavanaugh seems to view this doctrine of Precedent favourably. I do not know if this is an expedient move on his part simply to appease the Democrats since 'Roe v Wade' is apparently at stake here, or if he really believes in the integrity of such a concept (P.S. I do note and understand the importance of 'Judicial Precedent', but it should be binding among lower courts to ensure certainty in the law and should merely be persuasive and not necessarily binding upon the highest court of the land - in this case the Supreme Court). Both ways makes him look bad. The former makes him look weak & unprincipled, the latter makes him look unconservative.
To be fair, Kavanaugh has come out to say that there have been some bad precedents that have been justifiably overruled (i.e. Brown v. Board of Education) when pressed during the hearings, but in all - it seems to me that he lacks the same gusto that Scalia and Thomas possessed, and my main concern is that he may flip flop according to what is politically expedient at a particular time - similar to how Roberts' handled Obamacare in 'National Federation of Independent Business v. Sebelius'.
Whatever may be the case, since Kavanaugh leans slightly towards a more conservative judicial outlook, and he does accord the Constitution its proper respect, he's still not a terribly bad pick (though Amy Barrett would have been a much better choice).
Being sort of neutral about his nomination is one of the primary reasons why I've kept quiet about this, but if there's one thing I absolutely can't stay quiet about - it's the way he has been treated during this entire nomination process.
During the hearings, it seemed to be that majority of the Democratic senators were more concerned with process than substance. Instead of pressing Kavanaugh on his views on the Constitution (To be fair, some did), time was spent attempting to stall his nomination process by arguing that the Democratic senators on the Senate Judiciary Committee did not have adequate time to read certain documents about Kavanaugh or documents that Kavanaugh had written, or that such documents weren't made available to the Senate Judiciary Committee for them to properly assess Kavanaugh's competence for the Supreme Court appointment (The documents were available, by the way). When this failed, Senators such as Patrick Leahy and Kamala Harris interrogated Kavanaugh regarding his knowledge of certain emails that he received, and whether he had actually read the subject headers of those emails, or whether he knew any (apparently) dubious lawyers in a particular law firm on a personal level.
After this failed as well, and the Democrats were left desperate in their desire to sink Kavanaugh's nomination, they resorted to shameful tactics - the same tactics that were employed to destroy Justice Clarence Thomas' reputation in 1991, which was to smear Kavanaugh's good name by having a lady, Christine Blasey Ford, come forward to publicly make an allegation that Kavanaugh had attempted to sexually assault her when he was 17 years old at a high school party.
When pressed on details and whether she would make a testimony, there was so much fuzziness surrounding her allegations that it really does make one wonder if there is any credence or merit to her claim at all. From what I've read - there isn't.
A witness whom Ford claimed to have been there (apparently Kavanaugh's friend) denied that such an occurrence INVOLVING Kavanaugh ever happened. Fine. Maybe he's helping Kavanaugh out here and lying for him since it has been reported that he's a friend of Kavanaugh's, but even the accuser's own friend, according to an article by CNN (Yes, CNN) does not recall any such event happening.
Yes, there are reports that Ford saw a therapist in 2002 regarding a sexual incident, which is why I made sure to add "INVOLVING Kavanaugh ever happened" in the paragraph above, because I'm not unequivocally denying that something terrible may have happened to her, but we wouldn't know if whatever happened to her INVOLVED Kavanaugh, and as the evidence stands right now - it's not looking so good for her, and he remains innocent till proven guilty. Also, the details are sketchy. She was drunk, does not remember certain things; her memory was hazy, and it may not even have been Kavanaugh in the first place.
When pressed to testify to the Committee, Ford was initially silent, and later agreed, but subsequently came up with stipulations such as: (1) Not wanting to be questioned by lawyers, (2) that Kavanaugh cannot be present during her testimony, and that (3) Kavanaugh has to testify first. Seriously? If anything - such dubious requests doesn't make her case look any stronger.
As a result of this, the #MeToo movement was reignited, perhaps reaching its zenith amidst these Kavanaugh allegations. Feminists on my Twitter feed are hashtagging things like #IbelieveFord #BelieveFord and other variations or permutations of this.
Even worse, Senator Hirono publicly rebuked men, categorically, saying in particular "Guess who's perpetuating all of these kind of actions? It's the men in this country," and then telling them to "just shut up and step up", and that Ford should be believed. If this isn't Identity Politics, I don't know what is.
And I digress here, but this is the fundamental problem with the #MeToo movement - the idea that women should simply be believed by virtue of the fact that they are women. No trial; no right for an accused to defend himself. The idea that if a woman makes an allegation, it is unequivocally true. Women are the victims. Women are oppressed. And men, by virtue of being "patriarchal oppressors" - whatever that's supposed to mean, should be automatically vilified because of the so-called positions of power accorded to the two sexes.
This is truly messed up because modern day feminists are starting to take such a theory seriously, which is very alarming. What I'm talking about isn't hyperbole. It's already happening across college campuses in the United States. Individuals accused of sexual misconduct on college campuses have not been entitled to fair hearings. This is due to Title IX, a federal law stating that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”.
This Federal Directive allows colleges to essentially adjudicate sexual assault disputes, and such disputes have been gravely mishandled. As per this article, - "several aspects of the current procedure for addressing sexual assault on campus to omit key tenets of due process, such as accused students’ inability to confront their accuser, their lack of access to crucial information about their charges and more."
Even Ruth Bader Ginsburg, champion of the #MeToo Movement has been critical of this lack of due process. Perhaps, modern day feminists should take a page out of her book. Ginsberg stated in an interview with The Atlantic.:
" The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing."
On this basis, Kavanaugh should be accorded proper due process. The Media is no courtroom, but yet it behaves like a verdict has already been reached.
Today, news broke that a second woman, Deborah Ramirez, has also made similar accusations against Kavanaugh, and note mind you - only "after six days of carefully assessing her memories and consulting with her attorney" as per an article in the New Yorker. If this isn't fishy, I don't know what is. Careful reading of her allegation also invites skepticism. In the article hyperlinked above, you can see that she isn't sure about so many things. "A penis was thrust in her face". Whose? She doesn't directly say. She simply deduces it was Kavanaugh's.
In the face of this ludicrous adversity, and despite my disagreements with Kavanaugh on a whole range of issues, a man's integrity should never be smeared in the name of politics. Clarence Thomas went through this same horrific accusations in 1991 after Anita Hill accused him of sexually harassing her. Thomas' response to the Senate Judiciary Committee in 1991 with regards to the allegations are more pertinent than ever today for Kavanaugh, and I have to paste his entire speech here, because it is THAT powerful:
"Senator, I would like to start by saying unequivocally, uncategorically, that I deny each and every single allegation against me today that suggested in any way that I had conversations of a sexual nature or about pornographic material with Anita Hill, that I ever attempted to date her, that I ever had any personal sexual interest in her, or that I in any way ever harassed her.
A second, and I think more important point. I think that this today is a travesty. I think that it is disgusting. I think that this hearing should never occur in America. This is a case in which this sleaze, this dirt, was searched for by staffers of members of this committee, was then leaked to the media, and this committee and this body validated it and displayed it at prime time over our entire nation. How would any member on this committee, any person in this room, or any person in this country, would like sleaze said about him or her in this fashion? Or this dirt dredged up and this gossip and these lies displayed in this manner? How would any person like it?
The Supreme Court is not worth it. No job is worth it. I am not here for that. I am here for my name, my family, my life, and my integrity. I think something is dreadfully wrong with this country when any person, any person in this free country would be subjected to this.
This is not a closed room. There was an FBI investigation. This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace.
And from my standpoint as a black American, as far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. -- U.S. Senate, rather than hung from a tree. "
- Clarence Thomas before the Senate Judiciary Committee in response to the Anita Hill allegations. (Taken from www.americanrhetoric.com)
I certainly hope that Kavanaugh has the same courage that Clarence Thomas had at the time and I hope he sees his nomination through. Kavanaugh is very much a family man, and the worst case scenario right now is that he may simply withdraw his nomination to spare his family members the negative attention and publicity. This, however, will not solve the problem for the Democrats, because if Kavanaugh does withdraw his nomination, President Trump will simply appoint another Justice, likely to be Amy Barrett - far more of an originalist than Kavanaugh will ever be. A true nightmare for progressive liberals, and a hero for constitutional conservatives. And this time, since Barrett is a woman, the Democrats are going to have less chicanery up their sleeves.
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