Not surprisingly, and virtually on party lines, Brett Kavanaugh was confirmed to the Supreme Court, the third “independent” branch of government, in the most acrimonious judicial nomination process since Robert Bork’s forty years ago. America has always been divided but every President in living memory, once elected, has sought to unite the country. All Presidents that is except the present incumbent. In addition the Republican leader of the Senate has shredded the time honored mechanisms that ensured some form of bipartisanship in the election of Supreme Court Judges. Added to the mix was a Judicial nominee, who was selected for his partisanship which he then duly openly displayed in a remarkable exhibition of lack of judicial temperament. All this exacerbated the growing great divide in America and played out to unprecedented protests across the country.
It is fair to argue that the spirit of the American Constitution was abandoned in the obscene desire for aging white men to enshrine the bigotry of the past. It is interesting to note that the issue they elected to fight on was the women’s right to equal protection under the law as manifested in the #METOO movement. The upshot of this all that the once hallowed institution, The Supreme Court, whose current approval is at thirty - seven percent, will be even further mistrusted.
THE DIVISIONS IN THE COUNTRY EXACERBATED BY TRUMP, KAVANAUGH AND MCCONNELL
Everything about the process relating to the Kavanaugh hearings was designed to deepen the already divided Republic. Trump continued with his Nuremberg style rallies, convinced that all he needed to retain power was just to hang onto his base, who are in fact a minority. He openly punted his support of his nominee while stooping to belittle Dr. Christine Blasey Ford, who in attempt to relate the attempted rape by the nominee, was made out to be the dupe of the Democrats with her “unproven” allegations. Kavanaugh, when he believed his nomination was on the rocks blamed a vast left wing conspiracy angry at Trump’s election and the acting out of revenge on behalf of the Clintons. (This partisan outburst by a contender to the final arbiter of constitutional disputes resulted in twenty - four hundred professors of law of all political persuasions and a former Supreme Court Judge to declare him unfit for the court).
The final member of this unholy trifecta was the leader of the Republican Senate, Mitch McConnell, who in his fanatical desire to place on the court those whose opinions are so well vetted that the outcome of their decisions can accurately be predicted. In his three year thrust he has succeeded in destroying the fabric of the collegiality of Senate and its role as the moderating influence on affairs of state. It started when he unilaterally dropped the number of Senators to confirm a Supreme Court Judge from sixty to fifty. It accelerated as he refused to even consider a centrist Obama nominee to the Court leaving the seat vacant for a year till a Republican President named purist judges vetted by the Federalist Society. Having been saddled with Kavanaugh he sort to limit the documentation available for his vetting then when the latter was credibly accused by a number of women of sexual impropriety colluded with the WhiteHouse to limit the FBI investigations. All along he maintained that Kavanaugh was the victim of a smear campaign masterminded by the Democrats with the accusers either being dupes or colluding.
“ALL MEN ARE CREATED EQUAL…. (WITH) ….. INALIENABLE RIGHTS”
On July 4, 1776 when Thomas Jefferson who is considered to be the Founder of American Democracy, wrote in the Declaration of Independence, “… we hold these truths to be self evident that all men are created equal, that they are endowed by their Creator with certain inalienable rights….”. All men, needless to explain, did not include all women. Nor did it include anyone not white whom invariably were slaves. It may even, today, come as a shock to many that he didn’t even mean all white men. This situation pertained, as it did for two centuries, it was up to each individual State to decide who could vote and poll taxes and the like were instituted. Up to 1910 the Southern States excluded poor whites. It took Constitutional amendments and interpretations by the Supreme Court to get today’s situation which includes the responsibilities of each State not to gerrymander districts.
The Supreme Court have been involved in defining what these inalienable rights are, Decisions include the fact that segregated facilities are inherently unequal, (Brown v Board of Education) and Roe v Wade a women’s right to control her body, specifically in relation to abortion. The most recent swing vote Anthony Kennedy, although a conservative on most issues believed that “inalienable rights” extended to gays, women, (abortions) and affirmative action. He was persuaded to resign so that he could be replaced by Kavanaugh.
Judge Kavanaugh’s judicial philosophy leaves little doubt as to where he stands ob Inalienable rights.
KAVANAUGH’S JUDICIAL PHILOSOPHY
Broadly speaking there are two judicial philosophies. While there are several names for these divergent approaches from a laymen’s point of view they are that the Constitution is a living evolving document, (loose constructionism) versus it must be interpreted as to its original eighteen century intent, (strict constructionism). Brett Kavanaugh falls squarely in the latter category which has resulted in him issuing, to put it kindly, quaint opinions, which to date on the Appellate Court have been in the minority. Although he reassures, mainly in private, that Roe v Wade is settled law his minority opinion where he ruled that an illegal seventeen year old who had been raped could not go through with an abortion that the Texas Courts had ruled that she could. Then he concluded that second amendment rights were equivalent to those of the first. That meant citizens had the right to purchase hand grenades, and even nuclear weapons. Most significantly from Trump’s world he believes in the divine rights of Presidents in that they cannot be subject to the law while in office.
It was with all this in mind that and with the emergence of Dr. Christine Blasey Ford and other women who alleged sexual molestation by Kavanaugh that the Trump/McConnell axis sought to turn the issue of Kavanaugh’s confirmation on it’s head by claiming that men accused of sexual impropriety were the real victims as opposed to their accusers.
THE POLITICAL, LEGAL AND PHILOSOPHICAL DEFENSE OF KAVANAUGH BECOMES THE MANTRA OF THE GOP 2018
The moving, electrifying and mesmerizing testimony of Dr. Ford was trashed directly and indirectly initially by Kavanaugh, then by Lindsey Graham and then became the mantra of Trump and McConnell. Kavanaugh was the victim as was Trump and all men accused of sexual assault. The liberal #MeToo movement was sexist labelling all men as predators by mere accusation. You now needed to fear for your sons, husbands, fathers and uncles being crucified by mere uncorroborated accusations. Trump told the adoring cult followers that he had been subject to endless false accusations. The fact that the facts did not back such a scenario was irrelevant. The statistics that one in three women had been sexually assaulted was liberal ‘fake news”.
The defense of Kavanaugh to the specific accusations was that nothing was proven or corroborated. The fact that the FBI investigation was hamstrung by the WhiteHouse and not allowed to fully enquire into the facts was conveniently overlooked. So the claim that everyone was entitled to due process only applied to Judge Kavanaugh and not his accusers. Senator Collins the token female to lead the charge to nominate Kavanaugh was an ardent supporter of due process. She forgot that she had called for Senator Al Franken’s removal from the Senate on the basis of aged allegations alone. Franken had called for an ethics investigation into allegations that were mild compared to those of Kavanaugh but he was to be denied.
So self satisfied were the Republicans with the success of their own rationalizations that they declared victory on their tactics and got ready to march into the midterms to take on the women. They were secure in the knowledge that the Supreme Court Judge they appointed was not about to rule that an inalienable right of a women was to obtain due process in reporting sexual molestation.
It remained to be seen whether the Republicans led by Trump, drunk with success could thwart history as women sought protection from molestation.
“WE THE PEOPLE”
This is ultimately where the rubber hits the road. How would the electorate respond?
The Declaration of Independence had as one of its key concepts a covenant with the people in that the powers of government would be with the “consent of the governed”. As it so happens what transpired in the Senate was at the behest of a President who was elected with a minority of voters, with Senators who represented a minority of the population in order to effect for generations policies that were not supported by a majority of the voters. While the actions were within the letter of the law they were not in the spirit of the covenant. Most significantly those that perpetrated this action exacerbated division rather than recognize their responsibility to “We the people”. Furthermore they sought to nullify the concept of three independent and equal branches of Government by cementing their viewpoint for generations to come in one of them.
As matters stand the majority of “The People” were opposed to the Kavanaugh nomination and the Republicans overlooking very real injustices being perpetrated against women. There has been a mobilization of the women’s movement ever since the Trump inauguration that promises to alter the balance of power in Washington. They will be further incensed by the Republican Chairman of the Judiciary Committee explaining that the reason the Republicans had no women representatives on that committee was because it involved hard work.
So at the end of the day any hope to salvage democracy and the value system that has characterized America since it’s exception rests fittingly on, “We The People”. It is down to them because the system has failed them miserably.
The current polling points to at least a loss of the Republicans in the House of Representatives. The Kavanaugh nomination seems to have fired up the GOP base so all bets are off in what must be the most important midterm elections in modern history.
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