Kavanaugh: Where do we go From Here?

It has been impossible not to get drawn into the drama surrounding the Kavanaugh confirmation hearings. It has all the ingredients that will keep us glued to the story; corruptive power, intrigue, political power struggles and even sordid sex, which never fails to attract us like a moth to a flame.

However, do not be fooled; this is not some shallow, superficial infatuation with meaningless gossip. The stakes are very high. Some may say that the credibility of America’s Supreme Court – and the American people’s faith in its judicial system is in the balance. I contend that the stakes are even higher than that. I believe that the future of America as a democratic republic is what is on the line, no less. And, I believe that this is a defining moment in American history, yea, a watershed moment, where if he is confirmed, America will have changed forever, with no way back. I am not exaggerating. Loading the judiciary with judges whose loyalty is to their political party, rather than the Constitution and the law, will lead to irrevocable erosion of the independence of the judicial arm of government, which will irreparably harm the delicate balance of any democracy. Make no mistake about it; Brett Kavanaugh is a Republican Party operative through and through. His first job out of law school was with Kenneth Starr, when Starr was a judge. He followed Starr to the Office of Independent Counsel, and played a leading role in drafting the Starr Report, which urged Clinton’s impeachment. (Ironically, Kavanaugh was belligerently intolerant of Clinton’s inconsistencies under oath, succeeding in impeaching him on perjury with regard to his affair with Monica Lewinsky. Yes, this is the same man who now asks for us to be lenient with inconsistencies in his own testimony under oath). From there, he worked on George W. Bush’s election campaign, and joined the White House staff as Staff Secretary. He was a central figure in confirming federal judicial nominees, and allegedly inappropriately used stolen emails from Democratic Senators’ communications about their strategy to oppose these nominations, to confirm them. His appointment to the Appeals Court dragged on for three years between 2003 and 2006 before he was finally confirmed, specifically because of objections to his partisanship. He has been a fixer and a political enabler almost his entire career. Every appointment has been political. His judicial record is arguably the most conservative recorded in judicial history for the last twenty years, and reflects hardline Republican ideology. Thus, the alarm and the objection to the appointment of a Supreme Court judge, who has never been impartial – not for one second – and who has a clear political agenda, which he has promoted and will unrepentantly promote in the future, is understandable.

I would have thought that the expectation for a judge of the Supreme Court to be a person of unimpeachable personal character and integrity, would be a bipartisan, or perhaps even a universal expectation. I would expect that at least this one principle would be agreed upon as an uncompromising standard for the highest judicial qualification. After all, it should be self-evident that a Supreme Court that has lost its integrity would undermine the people’s faith in its ability to dispense justice. Is that a standard too high to expect? Yet, despite very strong suspicions that Kavanaugh may have committed perjury, inexplicably, the Republicans of the Judiciary Committee seem hell-bent, literally (?) to ram his nomination through.

Enjoying a clear majority in the House and the Senate, the Republicans should feel supremely confident in their ability to steer their nomination through. Their enemy, perversely, is not the Democratic representatives on the committee, they should be able to be swatted aside like pesky flies. Their real enemy is time. In truth, there are two time related factors, which are driving them to panic. The first is the upcoming mid-term elections; the prospect of them losing the majority, makes the urgency of confirming this nominee now, a priority. More important than their duty to conduct their job of vetting the candidate with requisite due diligence. The second, is the very reason that Kavanaugh was nominated in the first place. Robert Mueller’s investigation into Russian involvement in the 2016 election, and Trump’s presidential campaign’s suspected complicity in Russia’s interference, could be drawing to a close as we speak. Add to this the prospect of criminal charges for obstruction of justice by Trump – in the firing of FBI Director Comey and Sally Yates – and Trump needs Kavanaugh on the Supreme Court as soon as possible. He was picked above others, precisely because of his known stance on the constitutionality of prosecuting an incumbent president, specifically in order to obviate future potential prosecution. It’s a race against time, and Kavanaugh is his trump card (sic).

So, with cavalier disrespect to the gravity of the responsibility on their shoulders, to determine the character of the Supreme Court for generations to come, Senator Grassley crassly refused to allow the vast majority of Kavanaugh’s past record to be scrutinized by the Judiciary committee. What was released was heavily redacted to render it virtually valueless, and to add insult to disdain, the Democratic Senators were given a scandalously limited time constraint to examine the 400,000 documents before the scheduled vote. The Democratic Senators have fought back surprisingly effectively, despite being checked at every turn. The revelation of emails which brought to light that Kavanaugh possibly perjured himself in the confirmation hearings for his appointment to the Appeals Court, when he denied knowledge of their existence back then and denied utilizing them to push through federal nominations – and which now, these emails refute his testimony under oath, threatened his nomination. Yet somehow, the Judiciary Committee Chairman denounced the release of these emails, questioning the “ethical decency” of submitting evidence released unlawfully. The fact that the emails which Kavanaugh used to confirm federal nominees during his time in the White House were also obtained illegally doesn’t seem to bother their sensibilities one bit. The fact that they were fine with illegally obtained emails to demand an FBI investigation into Hillary Clinton, is not even a prick on their conscience. But allowing the release, and the time to examine these emails which could prove the commission of a federal crime by their nominee? That would be outrageous! By consistently putting procedure before propriety, the majority in the Senate Judiciary Committee have been derelict in the duty entrusted them, as guardians of the objectivity and impartiality of the judicial system.

WASHINGTON, DC – SEPTEMBER 27: Rachel Mitchell, counsel for Senate Judiciary Committee Republicans, and the Senate Judiciary Committee

Enter the unlikely hitch in a confirmation procedure that was rigged, and whose conclusion was preordained from the outset; Christine Blasey Ford. Suddenly, the curtains to Kavanaugh’s past, which had been conscientiously screened from us up until now, are drawn aside. This, if true, goes to the flawed character of a Supreme Court candidate that they cannot afford to dismiss. This could threaten his confirmation, something which was considered a mere matter of procedure just three weeks ago. The question of the timing of release of her letter, is irrelevant to the consequences of selecting to the Supreme Court a suspected sexual molester. The delay it caused would not be an issue, if the Republicans did not feel the mid-terms and Mueller breathing down their neck. They have in the past delayed the hearing of a Supreme Court nominee for ten whole months, citing that it was inappropriate to discuss a judicial appointment so close to an election. But, with barely two months to an upcoming election, suddenly, not only is it appropriate, but the delay is “one of the worst displays of partisanship in my career” (Lindsay Graham).

This needs to be investigated and cleared up. If not, Kavanaugh’s legacy will forever be clouded by this suspicion. His ability to sit in judgment of any case involving sexual assault or rape will be compromised from the minute he takes his seat. Every decision he will ever make, will bear the mark of Cain, the questionable credibility of his reasoning – nay, the moral legitimacy of his judicial opinion, of his very position as a judge. Therefore, Dr. Blasey Ford’s testimony had to take place.

Clear away all the noise and clutter of analyses and op-eds, disinformation, obfuscation and speculation; what it all comes down to, is the reliability of the two testimonies. Who is more believable?

I found Dr. Blasey Ford’s testimony believable. After reading endless articles about her letter and everything else, her testimony started disappointingly low-key. And then I realized that that was precisely why she was believable. She did not embellish anything to make her allegation more convincing – the opposite, she was brutally honest with what she didn’t remember. The part that I found most telling is when she was questioned by Ms. Mitchell about Mark Judge; she did not try to incriminate him, but rather she expressed her wish that the employment records at Safeways be examined in order for her to narrow down the time-frame. Nobody who fabricates a story could ever think of something like that under cross-examination. She did not use hyperbole. There was only one thing she was adamant about; the identity of her molester, Brett Kavanaugh. I can relate to that. In my one #MeToo moment way back in 1976, I was accosted late one Saturday night at the central train station, by a middle-aged man. There are things you never forget: the way he combed his grey-black hair with a coif to the side. The brown polyester suit, which I found a horrible color. His wide brown tie, too high up, above his navel. The fact that his trousers were too short, because they never touched the top of his brown shoes, which were too expensive for the suit he wore. Then there were his eyes, brown, set close together, and I remember his nose was arrow straight and sharp, and me thinking incongruously, how someone obviously not rich could afford to have had his nose done. All that in barely thirty seconds, if that, and I remember these details, to this day. Thankfully, nothing really happened to me, I managed to slip away. But, if I can remember these details, I have full belief that Dr. Ford is capable of definitively identifying the boy who attempted to rape her. Only someone who has not had such an experience would not understand that.
As for Kavanaugh. I remember an episode of the legal drama series, The Good Fight. In a case where all the evidence was stacked against them, what was the defense they chose? Bang on the table, shout with indignation, make it all about the outrage and not about the facts. That is what I believe I saw Kavanaugh do. High drama to hide something. He did not address Ford’s testimony, only to say that he did not doubt that she had such an experience, but that it wasn’t him. How generous of him. All the rest was diversion. All the people who were predisposed to be in favor of him originally, believed him. They took his bluster as a reaction to an affront of his character. I was not convinced. The emotion was real, but what brought that emotion out, in my eyes, was not the injustice of what he was accused of, but the outrage that it might jeopardize his appointment and the damage it would do to his name. I admit that I am predisposed to not believing him. That is because of the sheer weight of all the corollary circumstantial evidence which has come to light. The yearbook with allusions to his sexual conquests and drinking (I found his explanations both unrealistic and fantastical, even rehearsed in advance). The incident with Debbie Ramirez. But most of all, his excessive drinking. There are just too many people who knew him and saw him, saying how much he drank and how drunk he got, for his protestations to be convincing. There was too much blanket denial and he left no room for doubt whatsoever. All covered up with righteous indignation.

WASHINGTON, DC – SEPTEMBER 27: Judge Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation.

To me, Ford is more believable, but that’s not the point.

The point is that Kavanaugh’s denials were made under oath, in a Senate hearing. If, in the FBI investigation any details are found which prove he lied – about his sexual aggressiveness, or even the seemingly innocuous matter of his drinking habits, he still lied under oath – and that should disqualify him. A judge cannot lie under oath and then demand for people in his Court to tell the truth or risk perjury.

I fear that in the end, after this tormented tango, the Republican majority members of the Judiciary Committee will choose to dismiss the findings regardless what they are, and confirm him nonetheless. They will choose party and loyalty to Trump over propriety and the unimpeachable integrity of the judiciary. They will make even the semblance of even-handed impartiality one more victim of irreconcilable partisan politics. I hope I am wrong. But if I am not wrong, where do we go from here?

About the Author
Paul Mirbach made aliya from South Africa to kibbutz Tuval in 1982 with a garin of Habonim members. Together they built a new kibbutz transforming rocks and mud to a green oasis in the Gallilee. He served in infantry during his army service, serving in both Lebanon and the West Bank, including on reserve duty during the first intifada. Paul still lives on Tuval with his wife and two sons.
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