Well, it’s done. We have a new Supreme Court Justice, which, given the manner in which he was confirmed, seems a funny thing to call the person who, together with 8 others, will, for the next 30 years or so, set the course for virtually every aspect of how Americans live their lives. Having lived through the last month closely following this story, I’m not sure anyone, regardless of their politics, believes that justice played any role in the confirmation of Brett Kavanaugh to our nation’s highest court.
It occurs to me that my perspective on the process is necessarily tinged by the fact that I am a lawyer, and a litigator at that. I try cases, I argue in court, and any matter I handle has the potential (albeit extremely remote) to be reviewed by the Supreme Court. Indeed, one of my partners just argued a case before the Court, and every attorney at our firm – litigators, all – were so very thrilled that one of our own got to experience the ultimate professional goal for a litigator.
For lawyers, the Supreme Court is a mystical, sacred institution. It was the Supreme Court that first articulated principles that now form the bedrock of our society – the rule of law, that all people must be treated equally under the law, and that the right to free speech may be abridged only under the most narrow of circumstances. The power yielded by the Supreme Court is enormous and far-reaching. That is why our country has consistently demanded that those who are elevated to the high Court be of an impeccable intellectual pedigree and possess a rigorous and exhaustive understanding of the intricacies of American jurisprudence.
I’ve read many Supreme Court decisions, both as a law student and as a practicing attorney who loves the law and is continually in awe of the talent, insight, complexity and passion that so many justices have brought to the bench. Whether you agreed with him or not, Nino Scalia made the Court better. So did Benjamin Cardozo and Felix Frankfurter and Thurgood Marshall and John Harlan and Sandra Day O’Connor.
I’m a scholar of the Court as well, devouring everything that’s ever been written about it. One of my most prized possessions is a copy of “The Nine,” signed by my favorite law geek ever, its author, Jeffrey Toobin.
I love the Supreme Court. I revere it. I have enormous respect for all it represents. Which is why I am so angry at the fact that Brett Kavanaugh will now join this most august assembly of jurists.
From the beginning, the process was shot through with political import: The retiring Justice Kennedy was ever a swing vote who frequently broke ranks with the more conservative wing of the Court in matters that perhaps have the greatest impact on day-to-day lives. Certainly, his replacement would have the ability to move the Court, finally, to the far right, accomplishing what so many evangelicals have, for 45 years, been fighting for.
Abortion isn’t the only issue that could be on the chopping block during this and subsequent Supreme Court dockets, but it is perennially and disproportionately the one that matters most when a Supreme Court vacancy opens up. For a very long time, it did not appear that there would ever be a point at which the Court included five reliably anti-abortion justices. Now it does, and we can all reasonably predict that Roe will be laid to waste in the not too distant future – everyone except Susan Collins appears to understand that.
So the stakes were high. Because Trump had promised that any justice he appointed would be anti-abortion (an oath that has nothing whatsoever to do with his personal beliefs and everything to do with solidifying his one-issue base), Democrats were understandably concerned about who he would nominate. When he chose yet another judge handpicked by the Federalist Society (as we all knew he would), Dems understandably lost their shit.
GOP senators have made much of the speed with which Dems expressed their opposition to Kavanaugh, suggesting that they had never even given the nominee a chance (which is sort of like what they did to Merrick Garland, some might say). It’s a spurious argument, though – the Federalist Society Chosen, as well as the names on Trump’s short list, were made public well before Kavanaugh was officially nominated. Is it credible to suggest that Dems hadn’t done their research as to ALL potential nominees and weren’t painfully aware of what a Kavanaugh nomination might mean prior to the moment he was anointed by King Donald? No.
But the instantaneous opposition to Kavanaugh set the tone for the entire process, and it wasn’t long before things spun out of control. The GOP accused the Dems of leaking the identity of Christine Blasey Ford – an accusation as uncorroborated as Republicans claim Dr. Ford’s account of a sexual assault by Kavanaugh to be. It got worse when Debbie Ramirez stepped forward with a second account of sexual assault by Kavanaugh, perhaps especially so because a number of her fellow students at Yale either corroborated her story or else raised significant questions about Kavanaugh’s penchant for frequent, heavy drinking.
And then we heard from Michael Avenatti, a self-promoter so shameless he would make Donald Trump himself blush. His client spun a tale of dubious credibility at a time when it was critically important that any challenge to Kavanaugh’s nomination be thoroughly vetted and fact-based. In disseminating a tale that seemed designed for maximum shock value while being entirely uncorroborated, Avenatti enabled many who already had questions about Ford and Ramirez to reasonably conflate their experiences with those alleged by Julie Swetnick, and it was all over after that.
That there was a hearing at which Dr. Ford and Kavanaugh both testified was perhaps as devastating to women, and Ford, as NOT holding hearings might have been. Those who watched (and there were many) almost unanimously agreed that Dr. Ford seemed credible, and that her testimony was powerful and heartfelt. Few could fairly argue (though some nonetheless did) that she comported herself with dignity and with respect for the tribunal of men so aware of experiences in their own life that must have leant a throbbing credence to the allegations of Ramirez and Ford that they did not trust themselves to do the dirty work of examining Ford on their own lest they reveal themselves to be entirely unimpressed and unmoved by testimony recounting the searing impact that such shenanigans might have on a 15 year old girl, or an 18 year old college freshman.
Terrified of revealing the inherent distrust they harbor for women, in general, and victims of sexual assault in particular, they brought in a hired gun who was largely ineffectual and severely hindered, given the manner in which the hearing was conducted, in her ability to establish what did and did not actually happen. During her testimony, Dr. Ford suggested possible avenues for locating corroborating evidence. She delivered powerful testimony explaining the neuroscience of human experience, something she has studied for 30 years. By the time she was finished, the consensus was that she was sympathetic, credible, and, in the words of the inimitable Orrin Hatch, “attractive” and “pleasing.”
It was then time for Kavanaugh. Many felt his testimony was disrespectful, arrogant, disturbingly partisan, and indicative of a man lacking the judicial temperament typically required of Supreme Court Justices. Others defended his remarks, and those of men like Lindsey Graham, John Cornyn, and Orrin Hatch – who abandoned their stolid, methodical sex crimes prosecutor, Rachel Mitchell, in favor of an all-out spleen-letting directed at SJC Dems and anyone who would seek to tarnish the good name of Brett Kavanaugh. How else would you expect him to react? they said. He’s been unfairly accused. He has every right to come out swinging.
The combined “outrage” demonstrated by these 11 white men has rarely been on display in such a transparently craven fashion, and to the extent that there was any genuine umbrage, it had less to do with the genuine pain experienced by Kavanaugh’s wife and daughters, and far more to do with the double whammy of (1) fear that their own behavior in high school and college, if known, could end their political careers; and (2) fury at any woman who dared to stand in the way of a white man getting what he wanted.
For a few minutes, Senator Jeff Flake exhibited a conscience, and a backbone, and there was hope that further investigation would tease out what even Republicans knew to be true but didn’t care about – that is, that in his earlier years, Kavanaugh was a heavy drinker who exhibited a lack of respect for women (which in turn suggested that he was very much the kind of guy who might assault a vulnerable young woman, especially if he was being egged on by a drunken buddy at the time). I think those same people understood that Kavanaugh had probably lied to the SJC, but they just didn’t care.
An investigation ensued. It appears to have been
woefully inadequate and limited. Many who alerted the FBI to information that would have been damaging to Kavanaugh never got a call back. People who perhaps could have provided greater clarity as to the cryptic content of Kavanaugh’s high school yearbook entry were not interviewed. Who knows if the Safeway where Dr. Ford claims to have encountered Mark Judge several days after the assault was ever contacted.
The FBI issued its report at the same time as the man who ordered it mocked and derided Dr. Ford to audiences all too happy to laugh right along with him. GOP senators issued statements in which they inexplicably professed to finding Dr. Ford – who testified that she was “100% sure” that Kavanaugh had assaulted her – credible, but nonetheless concluded that Kavanaugh had nothing to do with whatever had happened all those years ago.
In the court of public opinion, women called Ford either a brave hero or a dim-witted puppet of the Democratic political machinery. Those who supported Kavanaugh justified his TTEP (temper tantrum of epic proportion) before the SJC as understandable given what he and his family had so unfairly endured. Kavanaugh’s experience as a Supreme Court nominee even became a rallying cry for the #hetoo movement, and we as a nation were actually asked to commiserate with men who would now, in the context of their sexual encounters, have to exercise caution and endure the disbelief of strangers in the event that an allegation of rape was later advanced.
For a few hours on Friday, it seemed possible that Kavanaugh would not be confirmed, but as Senators Flake, Collins, and Manchin made their politically-motivated intentions known, the awful truth finally and mercilessly registered in my brain and was indelibly imprinted on my hippocampus, or whatever part of the brain records forever the twin emotions of grief and despair.
As I watched Collins’ floor speech with two of my daughters and the mother who raised me to be a nasty woman, I felt myself on the verge of tears. This was going to happen. There was nothing left to do. Protests and fury were futile. Once again, those in power chose to disregard what is more likely than not true, in order to accomplish a political gain.
I have never been sadder by what seems to be happening to our country. There appear to be no consequences for the outrageous behavior of the well-heeled and powerful, and women, when they confront men on their bad behavior, will be believed only when the experiences of those who are accused of wrongful conduct cannot somehow be used to advance the political goals of those in power.
That’s why no man in government cared that Harvey Weinstein or Les Moonves or even Roger Ailes were ousted from positions of great power following evidence that they had sexually assaulted or harassed women, because those men, and the things they were accused of doing, could not be twisted into a sound byte which would support their political agendas. It was easy to pay lip service to the to the #metoo movement, or, better still, to invoke their status as father, son, husband or brother to a woman who deserved to be treated with respect.
I have no idea what comes next, or if I can even stomach any continued involvement in or painstaking scrutiny over what happens in the hallowed halls of government. I don’t know that I can keep watching, and exhorting, and screaming about the blatant injustice that happens virtually every day in the Era of Trump.
What I do know, if I know anything at all, is that during the summer of 1982, two very drunken young men tried to rape a 15 year old woman. One of those men has acknowledged in print, and in unflinching detail, to his “wasted” youth, including the inebriated exploits of one “Bart O’Kavanaugh,” a name too conveniently similar to the manner in which Kavanaugh referred to himself in those days to be a coincidence.
The other man will now sit on our nation’s highest Court until he dies or decides to step down.
Thats what passes for “Justice,” in America, in 2018.