Oct. 2, 2018: While we wait for the FBI…

The Jourmudgeon offers his crabbed perspective on what went on in the Senate Judiciary Committee’s confirmation hearings last week:

1. Everybody – not just the committee members – has gotten the job description wrong. Presidents nominate candidates who piously pledge to worship the law, and the Judiciary Committee makes a great show of looking for evidence in the candidate’s record that he or she has done so in the past. That would be fine if the job was Supreme Court Lawyer, but it isn’t; it’s Supreme Court Justice. Lawyers are advocates in an adversarial system. Justices are supposed to seek and deliver justice.
2. “It’s not a criminal prosecution, it’s a job interview” has been repeated endlessly. It sounds glib, but it passes the smell test. Late in the game, we’ve discovered something critical that was apparently missing from Judge Kavanaugh’s c.v., from a source he didn’t cite as a reference. What hiring committee wouldn’t responsibly and conscientiously pursue that?
3. Why did Sen. Diane Feinstein wait so long to reveal Christine Blasey Ford’s accusations against Kavanaugh? “Because none of the Democrats’ other mud would stick” is the Republican response. Turn that around: Senate Republicans were so eager to confirm Kavanaugh before the mid-term elections that they ignored earlier evidence that he was unsuitable – evasiveness, misrepresentation, possibly outright lying about his role and actions while a Bush administration staffer. Blasey didn’t want to come forward, and Feinstein wanted to protect her if possible. But they believed Kavanaugh wasn’t suitable for a reason that hadn’t yet been revealed, and neither wanted to think Blasey’s silence might contribute to an unsuitable person sitting on the Supreme Court for decades. By ignoring all the other red flags, the Republican leadership and committee members forced Blasey’s and Feinstein’s hand. And by not ordering the FBI to investigate as soon as Blasey’s accusations were revealed, they assured a public spectacle – last week’s hearings — that made everyone’s skin crawl and put a terrified Blasey in the spotlight.
4. Similarly, piously blaming Democrats for the ordeal Kavanaugh has been through is rank hypocrisy. By refusing to suspend the hearings and seek an FBI investigation, the Republican leadership forced the issue, and ensured the public humiliation of both Kavanaugh and Blasey for crass political points.
5. We have yet again witnessed a lot of breast-beating about how contentious and partisan the confirmation process has become. There have been longing looks at a time past when it was agreed that the Senate owed a President his choice of a Supreme Court nominee, absent a deal-breaker in the candidate’s background. Even if we grant the Republican insistence that Kavanaugh’s past behavior doesn’t disqualify him, or that Blasey is either mistaken or lying, the we-owe-him-confirmation train left the station when Mitch McConnell refused even to give Merrick Garland, Barack Obama’s nominee, a hearing. For those who argue the gentlemen’s agreement was broken as far back as the Robert Bork and Clarence Thomas hearings, the Jourmudgeon doesn’t buy that argument in the first place. If a Supreme Court justice served only the length of the term of the president who appointed him, then the argument might make sense, as it does with cabinet appointees. But a Supreme Court justice’s tenure far outlives the president who appointed him. Because it is lifetime, it’s the most consequential appointment there is in our system, and one over which voters have no direct control. We leave it to the people we can vote for to represent us in the vetting process. The Jourmudgeon submits that confirmation hearings should be raucous, messy and intrusive. There is too much at stake for them not to be.
6. The Judiciary Committee presumably considers a nominee’s judicial temperament. Now the full Senate will also have to consider his judicial temper. We saw the latter on full display from Kavanaugh after Blasey testified. The Jourmudgeon’s late colleague, the ethicist Lou Hodges, liked to say that character should not be an issue with candidates. He was reacting to Gary Hart’s having to leave the presidential race in 1988 after revelations about his extramarital affairs. So what if public officials are subject to pleasures of the flesh?, Hodges argued. (Hodges was talking about consensual affairs, not accusations of sexual assault.) He liked to point to men who changed history, and wonder what would have happened if their own carnal weaknesses had driven them from office. The Jourmudgeon would argue back that even if character wasn’t an issue, judgment is, that at the least Hart showed poor judgment, and that poor judgment should be a deal breaker for someone who aspires to great high office and great power. Even people who ignore Blasey’s testimony need to consider the genesis of Kavanaugh’s meltdown. Either he showed real temper rather than temperament, or he was following the script of a president and Republican leaders who think white male outrage will keep the Senate in Republican control after November. Either reason manifests bad judgment. And if you do believe Blasey, what Kavanaugh displayed 36 years ago, even as a high schooler, was far more serious than poor judgment.
7. Then there is this argument from Kavanaugh supporters: “For heaven’s sake, what boy didn’t misbehave in high school and college? Boys will be boys.” At a gut level that’s revolting; at a rational level it’s called the ad populum logical fallacy: “Others do it, so that makes it okay.”
8. Many people have worried – justifiably – that the spectacle has permanently damaged the court’s standing. Again, they should ask Mitch McConnell about Merrick Garland.
9. People The Jourmudgeon respects, including New York Times columnist Bret Stephens, worry about where the country goes from here if we begin to accept a guilty-until-proven-innocent standard for people who seek public service. See https://www.nytimes.com/2018/09/28/opinion/kavanaugh-blasey-testimony-believe.html?emc=edit_th_180929&nl=todaysheadlines&nlid=271745000929 and https://www.nytimes.com/2018/09/27/opinion/blasey-ford-kavanaugh-senate-hearings-.html The Jourmudgeon agrees that news media have been too quick to conflate all the accusations against Kavanaugh as supported by equally compelling evidence. But The Jourmudgeon, again, makes the distinction between due diligence in reviewing an applicant for a bulletproof lifetime job determining the country’s course and the Constitutional burden of proof in a criminal prosecution. And again, Republican attempts first to block and then to limit the scope of an FBI investigation serve only to perpetuate and aggravate the trial-by-combat standard.
10. Finally, in response to the Kavanaugh hearings several of The Jourmudgeon’s former students have come forward, reporting their own traumas, and their heartbreak at having to accept sexual assault or other misconduct as the norm and keeping quiet as their only sensible option. What should they now tell their sons and daughters, and themselves, about what is and isn’t permitted, and what does and doesn’t disqualify a person from being a final arbiter of justice in the country we all share?