Hello all and thank you for your support.
I, like many of you, have been transfixed by the testimony and hearings of Christine Blasey Ford and Brett Kavanaugh.
I was initially hesitant to weigh-in as I believe that we are, in general, paying too much attention to the drama in Washington. But this has become the center of our national conversation. We can’t look away. And this appointment will have massive legal and cultural implications for years to come.
I found Christine Blasey Ford to be incredibly sympathetic and genuine. I instinctively believe her. She seemed like a thoughtful and introspective woman. She also seemed like exactly the opposite of the kind of person who would welcome having her life disrupted and uprooted. She had every incentive not to come forward. To me, the only reason she would have is if she were telling the truth.
Brett Kavanaugh, on the other hand, painted a different picture. His testimony centered on him, his work, his career, his relationships. There was a sense of indignance, aggrievement and disbelief throughout. I thought some of his testimony was either utterly unbelievable, odd or unseemly. He seemed like a man who believes that his accomplishments render him above inspection. He did not seem thoughtful or introspective.
He also made the process overtly political by attacking Democrats and blaming them for his situation. This is immensely destructive, as the Supreme Court is supposed to be one of our primary apolitical institutions. That presumption is getting demolished.
Most people did things to be ashamed of when they were young and still figuring things out – and many men in particular are deeply uncomfortable with being held accountable for misdeeds from our distant past. Many are also uncomfortable with a sense of guilt upon accusation when it is very difficult to confirm or deny what happened because of time passing or the fact that only two people were in the room.
I share these concerns. We generally should not be railroading people because of unconfirmed accusations from decades ago. We should not be weaponizing people’s teenage years and behavior. I, like most people, said and did some things as a teenager that make me cringe now. We should respect an objective process and not assume guilt.
Here though, the standards are very different for a number of reasons.
Brett Kavanaugh is not owed a Supreme Court position – he’s applying for a job. There are perhaps 200 – 300 jurists with equivalent credentials and accomplishments who are technically qualified. No one is forcing Kavanaugh to apply for this particular job. And if you are searching for someone whose judgment will shape the law of the land for decades to come, he or she can rightfully be held to an exactingly high standard. Many employers, if they were confronted with the likelihood or even possibility of this sort of behavior, even from the distant past, would pass and move on to other candidates.
Of equal importance, the behavior Kavanaugh is accused of goes way beyond usual teenage behavior. If true it indicates a wildly debasing attitude toward women and actions that inflicted serious harm for decades afterwards.
Third, the argument he is making is not that “This shouldn’t matter.” It is “This did not happen.” And to support that belief you would have to believe many other things that he said that were contradicted by other accounts and common sense.
Fourth, Kavanaugh is putting his own career and interests above that of the Supreme Court and the country. Even if the accusations are false, he would know that a significant proportion of the country would see his ability to objectively rule on many issues as compromised. It is hard to see a scenario where his being on the Supreme Court is good for the court’s ability to command popular and moral authority.
Fifth, this process is clearly designed for political expedience. Imagine if Kavanaugh makes it to the Supreme Court and then 10 other women come forward. It makes no sense not to let some time pass and investigate further. It particularly makes no sense not to compel testimony from Mark Judge, who was in the room at the time and wrote a memoir called Wasted: Tales of a Gen X Drunk which featured a character named “Bart O’Kavanaugh.” No one could look at this process and conclude it was anything other than a maximal attempt to cram an appointment through before more facts come to light or elections take place.
Kavanaugh strikes me as a distinctly Trumpian figure – someone with a history of debasing women who has a mindset that facts and the truth are what you make of them. The fact that he may become our newest Supreme Court Justice would be a further step in the erosion and disintegration of our institutions. The Republicans could nominate virtually any other qualified figure and it would be a massive improvement. It is also a disaster for those who believe our society must evolve in its treatment of and respect for women.
|The Republicans have a very narrow majority of 51-49 (Mike Pence votes on a Tie) so they need all of their votes with one defector. Right now, the goal should be to push Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Jeff Flake (R-Arizona), Heidi Heitkamp (D-North Dakota) and Joe Manchin (D-West Virginia) to vote ‘No’ on Kavanaugh. It looks like it’s going to go down to the wire.
If Kavanaugh does wind up on the Supreme Court, there are very few options. Supreme Court Justices can be impeached just like Presidents. But this requires a supermajority of Senators (67), which is why you never hear about it as a possibility. The other move is equally dramatic – adding Supreme Court Justices. There is nothing in the Constitution about the number of Justices – indeed the number has changed over the years. In theory, a Democratic President and a majority of Senators could add 2 Supreme Court Justices, swinging it the other direction.
This last move would make the Supreme Court avowedly political, which would itself lead to problems. For the record, my suggestion is to replace Supreme Court lifetime appointments with an 18-year term. That’s long enough to resist influence – each President would get one appointment every 2 years. It makes no sense to have the law of the land hanging on the ongoing health of an 83-year old, or to have an appointment impact laws for thirty years afterwards. This could be bipartisan as it simply makes the Supreme Court less volatile and more predictable on both sides.
In the meantime, the problem is that the Republicans are winning elections and when they win, they pull out all the stops to achieve their goals. They blocked Merrick Garland who should be on the Court right now. It is difficult to be principled if only one side seems to be adhering to norms.
The only lasting way for us to make changes is to win. And win big. There is naturally a pendulum dynamic in American politics – that as one side governs the discontentment grows and the energy swings to the other side. There will be a reckoning on the other side. We must take full advantage of it.
If you’re in Maine, Alaska, Arizona, North Dakota or West Virginia, call your Senator.
Otherwise, the best way forward is to win big in 2018 and 2020. It is the only way. And after we win, we should be relentless in making our vision a reality. I, for one, would love to nominate Christine Blasey Ford’s pick to the Supreme Court and invite her to the announcement.
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