The Big Top

Today will be Brett Kavanaugh's first day as a sitting justice on the United States Supreme Court.

Robert Bork in 2005.  Bork's nomination by Ronald Reagan, and its defeat at the hands of Joe Biden, gave us the modern Supreme Court era.  Bork was a University of Chicago educated lawyer who quit a law practice to the shock of his partners to become a law professor and then went on to become U.S. Solicitor and a Federal Court Judge.  At the time of his leaving private practice his close friends noted that he stated he didn't want to leave a legacy of "depositions, briefs and money".  He would leave a real legacy, but it was no doubt not the one in some ways that he hoped to leave.

I had predicted that the Kavanaugh nomination would be a circus.  I just didn't realize the extent to which my prediction would prove true.

It's been absolutely crazy. Even shameful.

We still don't really know what happened on that night back in the early 1980s at a high school party or that evening at an alleged college party.   We are never going to know, probably.  It's actually perfectly possible that every single person involved is telling the truth.  If the show surrounding the nomination provided any service to the nation in a larger societal sense, it might be in exposing the moral decline that had set in by the late 1970s and early 1980s from which we are now thankfully rapidly retreating, even if we fear on actually re-adopting the standards that a full retreat would require.  I can believe that Dr. Ford went to a high school drinking party in an innocent naive fashion three decades ago and was the victim of a violent groping assault that scared her, and I can believe that boys at that party through that they had the license to do that and it would just be good fun (I'm less willing to believe that their motivation was actual rape).  I can also believe that at a college party at Yale Mrs. Ramirez, after having drunk too much, was the victim of an indecent exposure by a male student and that likewise that student didn't think it assault but license.  I can also believe that Kavanaugh was a male participant in all of that.

At the same time, however, I can also believe that the long passage of time and the vagaries of memory could have messed with the accuracy of all of those recollections.  Peoples memories fail and become altered.  Either a lot of memory failure is operating here in this case, or somebody is lying.  We're not going to ever know what the situation is.

That is, I suppose the nature of recalling, but the bigger problem here is that it is now perfectly clear, if it wasn't before, that the political left has reached such a state of contempt for large sections of the voting public that it will go to nearly any extreme to prevent the electorate from voting on certain issues.  The left feels more comfortable with a type of judicial dictatorship than it does with democracy. That is, at the end of the day, which much of this is about.  The left fears that a conservative tilt to the Supreme Court will mean that the court will review decisions in which it also feels that there is little Constitutional support for the holdings and reverse them, sending the questions back to the states, where it fears it will loose.  Posed in terms of "right", it's a contest between whether a judicially constructed thin construction of rights should trump the rights of the electorate. That's a dangerous place to be as it could just as easily flip.  The left should perhaps stop and consider what it would mean if really conservative justices accepting a theory of natural law took the same approach as liberal judges have in the past and imposed a new set of rights and duties based on that analysis.

Much of this simply didn't seem to come up.  There wasn't a heated debate on "strict construction" as opposed to "living documents" or the like, which would have been instructive.  The arguments just devolved to theater, with those opposed to Kavanaugh largely acting as if he was a fascist there to seize rights rather than perhaps a jurist who might operate in combine to return questions to the states.

That's bad enough, but we've been seeing things like that every since Robert Bork's nomination went down in a debate that at least did discuss real issues and theories.  His mistake, of course, was in honestly answering the questions posed to him.  Now nobody makes that mistake, which is part of the reason we have the circus we do. We can thank Joe Biden, who lead the charge against Bork, for that.

But beyond that what is also now apparent is that there are certain elements on the left who feel that any effort is justified to prevent a conservative justice from being seated.  That effort is quixotic but scary.  That group doesn't feel that lying to keep a judge off the bench is wrong, but rather laudable.

I'm not saying that either Ford or Ramirez fit that mold.  But I am saying that those who fit into that camp are pretty happy to use and emphasize memories that they have that may or may not be faulty.  Both Ford and Ramirez did not wish to come forward but were forced by the times, or in Ford's case by unwanted disclosure in a questionable manner, to do just that.

This is a new development.  When Bork was taken down so many years ago, it was pretty openly due to his views, which actually were novel at the time, following a long Supreme Court departure from originalism.  Agree with the views held by Biden or Bork, at least it was views that were in contest.  Following that we had the entire saga surrounding Justice Thomas an Anita Hill, which is still one in which we don't know what happened a person's views tend to follow their political beliefs, but this takes the entire drama one step higher and indeed further than what seemed to be a new accommodation which was similar to the old one which was outside of pure political advantage (a factor that was always there in spite of what people claim), qualified justices would be approved.  Now it's pretty clear that qualified conservative justices will be uniformly contested on any grounds, real, suspected, or constructed, and we can presume the same will be the case for liberal justices as well.

This next act of the circus seems to have come about largely due to Trump's election, which the left has an absolutely over the top reaction to.  Readers here will recall that I was never a Trump fan and was surprised by his nomination and his election.  But the "resistance" attitude to a legitimately elected President is scary.  Not that even this is wholly new, in spite of what people claim.  That sort of view seems to have dated back to Barrack Obama's first election at which point a certain percentage of the political right took an absolutely over the top view of his election, and maintained all sorts of absurd claims regarding it.  As a result of this, we're now into the tenth year of an escalating and ever more extreme resistance to the occupier of the White House in a fashion which we have not seen since the Civil War.  It's a bleak situation to be sure.

And therefore it's probably naturally that its finally spilled full scale over to the Federal judiciary.  One can only hope that at some point this sort of behavior stops, but there's no end in sight anywhere.  All of which takes us back to Kavanaugh.

Now that Kavanaugh has been confirmed can we say he should have been?  Based on what we know, I would have voted to confirm.  I don't think he was the ideal choice, and I do think his views on executive privilege are really troubling.  Those alone would have caused me to question passing him, but they're not sufficiently dominating that I think a person can legitimately get to a no.

Added to that, and no doubt plain from my earlier writings I"m really tired of Ivy League appointees to the Supreme Court and that would have influenced me a little.  I refuse to believe that the only ones who are qualified to occupy the highest courts are those who came out of Harvard, Yale, etc. That can't be true, and that view is serving to further convert the Supreme Court into a Platonic Council of Elders, which is not what the Supreme Court should be.  It also serves to elevate the law schools of those sch

And the claims of moral turpitude?  Well, what with the Me Too movement blooming into full flower and then being taken over, i.e., having gone from legitimate exposures of sexual misconduct to lewd conduct or even the suggestion of lewd conduct, we've entered an era when any figure, usually a male, can seemingly have his career wrecked by a mere allegation.  Did Senator Al Franken deserve his downfall for acting like a lout?  Should people whose careers are well advanced see them go down by allegation alone.

At least in Kavanaugh's case, it would appear that the answer would be no, but there were those who seriously argued for that and who are very much offended.  Indeed, Kavanaugh's words in his resumed confirmation hearing when he made an observation about "what comes around goes around" were taken boldly out of context by those who, if they'd read them, should have known that they were misrepresenting what he said.

So where should all of this lead us?

Well, for one thing perhaps there needs to be some sort of consensus that times change and people do as well.  Bringing up crimes that can be proven are one thing, but perhaps a societal statute of limitations needs to exist on allegations of old past misconduct that are truly old.  That is, perhaps people shouldn't be deemed to be presently condemned for allegations or past misbehavior from decades ago if there's no suggestion, and here there wasn't, that such conduct pressed forward to the current day.  Nobody ever maintained such a thing here, and all the argument was on what happened decades ago.

Likewise, perhaps its okay to acknowledge, as some are in fact doing, that the standards of the late 60s, 70s, and early 80s that applied to the young were debased.  If we do, we have to look at where that took us and what it means for us today, and we don't seem to want to do that.  But if we're going to condemn people for acting in a manner that was actually celebrated at the time in film (and yesterday's example of Animal House is hardly the only one that could be given), maybe we better see where that same movement took us and where we're acting on it today.  We always consider our present standards to be prefect, but they rarely are, and linear time is always impacted by what came before it.

Finally, while everyone has been saying it, at some point the dysfunction in the nation's politics has got to cease.  There is seemingly no end in sight, and the Democrats are focused on the election next month with the hope that they'll take the Senate and maybe the House and then the resistance will be able to set in.  In other words, there seems to be no hope for a return to any sort of normalcy for the rest of this Presidential term, which unfortunately means that much of the nation will continue to be unwilling circus viewers while those enjoying it, and there are many, on the right and the left continue the show.