There’s been a lot of excellent commentary on the Kavanaugh carnage from, to hijack a phrase from an erstwhile commenter of ours, “the adults in the room”. Here’s a sampling (with a hat-tip to Bill Keezer for sme of these links):
First up, we have former senator Tom Coburn, who identifies as a root of this darkening storm the concentration of power in the Federal behemoth — and more specifically, in the Supreme Court. We read:
First, it’s important to ask why both sides treat Supreme Court confirmation hearings as existential, life-and-death struggles. The reality is lifetime appointments to the Supreme Court feel like lifetime prison sentences for those of the opposing ideology. If either side views the stakes as incalculably high, it’s easier to understand why politicians employ the win-at-any-cost rhetoric and tactics Lindsey Graham lambasted.
In our system, the Supreme Court was never designed to be the final arbiter of every difficult and controversial question in American cultural and political life. Yet, both sides see the court as the final decider on everything from marriage to life to what kind of health insurance we can buy. The stakes were never supposed to be this high.
If the Senate wants to lower the nation’s temperature it needs to lower the stakes. The senators can do this by reapplying the timeless advice of our Founders.
As James Madison wrote in Federalist 45 in 1788, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’
The Constitution’s enumerated powers don’t give the Supreme Court the vast powers it has today. The Founders wanted to focus power in the states in part because they believed it was wise to concentrate power closest to the people having disagreements. Our Founders didn’t have a naÁ¯ve view of what we call “polarization’ today. They viewed passionate debate as the natural outcome of a free and prosperous society. At the same time, they feared government would become unstable if regular citizens lost the ability to resolve differences to an overbearing central government that tried to right every wrong.
If senators love the Constitution as much as they say they do, they should define total victory not as vesting power in the court, but devolving power from the court.
Exactly right. The three branches of government are peers, and each of them is equally qualified to interpret the Constitution. The supremacy of the Court in this regard is what Daniel Horowitz, in this essay, calls “an absurd and tyrannical fiction”:
In the 1780s, our Founders feared many things about the tenuous future of the republic they were creating, but a tyrannical judiciary that acts as supreme to the other branches wasn’t one of them. They would have laughed at the spectacle of two parties at each other’s throats not over the balance of power in the Senate, but over how that balance of power will determine the tilt of the Supreme Court, where the true power resides these days.
Regardless of whom Trump nominates to fill the latest Supreme Court vacancy, both sides will vociferously question the nominee over his or her views of certain court precedents. But we could go a long way toward cooling some of this political acrimony (and fixing our republic to boot) if we focused on just one court precedent: The Supreme Court’s own declaration, during the Warren era, that its decisions over the Constitution are exclusive, final, and universally binding over the other branches of government. It’s this legal fiction that is fueling the high-stakes fights over every other precedent. If we all agreed to end judicial supremacy, control over the other two branches of government ”“ with their more robust powers to affect their respective interpretations of the Constitution ”“ would matter much more than control over the Supreme Court.
Mr. Horowitz adds:
Ultimately, it’s the political branches of government ”“ with their powers of the purse and enforcement ”“ that are tasked with executing the law. When answering the question of “what is to control Congress when backed and even pushed on by a majority of their Constituents’ to enact something unconstitutional, Madison said that ultimately the power resides with the people. “Nothing within the pale of the Constitution but sound argument & conciliatory expostulations addressed both to Congress & to their Constituents.’
Yes, the Supreme Court can always be used as one avenue for pushing a specific constitutional interpretation, particularly for specific cases and controversies, but it should by no means be the only and final avenue. That is the core difference between judicial review and judicial supremacy. But the Founders purposely didn’t give the judiciary any tools to enforce its decisions, because they relied solely on sound argument resonating with the people to pressure the other branches into acquiescence.
Yes, “…ultimately the power resides with the people.” That’s true, as a purely natural fact, under any form of government or sovereignty. And in a last resort, they may appeal to heaven. (So keep your powder dry.)
Next, here’s Michael Anton, who as “Publius Decius Mus” wrote the critically important Flight 93 Election essay back in 2016. In this essay he writes about what he calls The Gillibrand Standard. Here are some longish excerpts, but you should read the whole thing.
The Left has created a new “standard’ for American politics””indeed, new in the entire history of Anglo-American jurisprudence. Let us call it the Gillibrand Standard, after its most insistent advocate, Senator Kirsten Gillibrand (D-N.Y.).
According to the Gillibrand Standard, accusation suffices to destroy. Not only is no corroborating evidence necessary, to ask for such evidence makes one just as guilty as the accused. Especially monstrous is to ask questions of the accuser; that is to repeat or compound the alleged crime. The accusation, once stated, immediately takes on metaphysical certainty. To doubt is to blaspheme.
Actually, “accusation’ is too generous. Machiavelli distinguishes between “accusation’ and “calumny’ in order to demonstrate that “as much as accusations are useful to republics, so much are calumnies pernicious.’ The difference is that accusations are public, subject to critique and refutation, and a mendacious or even inaccurate accuser pays a price. Calumnies, by contrast, “have need neither of witnesses nor any other specific corroboration to prove them, so that everyone can be calumniated by everyone; but everyone cannot be accused, since accusations have need of true corroboration and of circumstances that show the truth of the accusation.’ A more incisive summary of the Gillibrand Standard cannot be found.
… There is but one limiting principle to the Gillibrand Standard: It shalt be used only against the Right and Republicans. Credible accusations””with evidence, witnesses, contemporaneous police reports””against Democrats and liberals are not merely to be ignored but also stonewalled and attacked, alleged victims and witnesses alike smeared. That is, until this or that liberal is no longer useful in the moment and safely can be discarded. Throwing an expired liberal to the wolves now and then is useful to maintain the fiction of evenhandedness.
This is obviously outrageous, unjust, unfair, and offensive to any conceivable standard of decency. Just as obvious, the Democrats and Left not only do not care, they welcome the weaponization of accusation. Their only conceivable regret is that it might not work this time. But even if it doesn’t “work’ in the sense that Kavanaugh is not confirmed, they know that it “works’ in other ways. It rallies their base. It drives fundraising. It degrades public standards of decency and credibility, making its effective use more likely in the future. It delegitimizes institutions””in this case, the Supreme Court, which, with the addition of Justice Kavanaugh, may later rule constitutionally and correctly in ways the Left does not like. And, most important for the nihilistic Left, it delegitimizes and dehumanizes””makes a villain out of””Kavanaugh himself.
It is hard to say what is the most shamelessly disgusting aspect of this affair. I offer as a candidate the following tactic. First, smear your target with uncorroborated, unprovable and almost certainly false allegations. After you have””inevitably””failed to substantiate those charges, insist that your target withdraw since his reputation will now forever be under a cloud and his rulings will lack popular legitimacy. This is akin to breaking an opponent’s arm before a sporting event and then insisting that he forfeit.
Next we have historian Niall Ferguson:
Having watched Ford testify, I have little doubt that she believes the truth of what she said. But as an historian who has spent many long hours interviewing people about past events, including in some cases highly personal matters, I do not regard that as good enough to destroy the reputation of a distinguished judge.
Human memory is, generally speaking, bad at history. Were I writing Kavanaugh’s biography, I could not possibly depict him, on the basis of uncorroborated testimony provided long after the fact, as a man who attempted rape in his youth and lied about it later. His memory is also unlikely to be perfect. But his story ”” that, as a young man, he glugged beer and had the usual Catholic hang-ups about sex ”” is more plausible.
…Let me offer two hypotheses about why we are in this mess. The first is that the world’s elite educational institutions are now so dominated by self-styled liberals and progressives, that an inexorably rising proportion of people in other elite institutions ”” corporations, the media, government agencies ”” now subscribe to all or part of their ideology.
Ask today’s graduate trainees (for example) if they think there should be limits to free speech so that people “feel safe.” Ask them if “implicit bias” is something all white men suffer from. Ask them if the achievement of “diversity” matters more than promotion on merit. The answers will mostly be yes. Campus politics is spreading. Soon you, too, will be asked to state your preferred pronouns at the beginning of each meeting, just in case someone present favors the gender-neutral “zhe.”
My second hypothesis is that the rise of internet platforms such as Facebook, YouTube, and Twitter has disastrously exacerbated the polarization of not only the United States but all Western societies. For it is on social media that the show trials of our time are now held, as anyone knows who followed Thursday’s hearing on Twitter.
The rule of law can be killed in more than one way. In liberal nightmares, a despotic president sweeps aside the Constitution in the manner of a Latin American caudillo. But in conservative nightmares, the graduates of Yale Law School agree that social justice would be best served by discarding the presumption of innocence and relying on Twitter polls to determine guilt.
Victor Davis Hanson comments on the spread of a new and relativistic radicalism from our ivied halls to the halls of power:
The polarizing atmosphere of the university has now spread to Congress.
During the recent Supreme Court confirmation hearings for Judge Brett Kavanaugh, we witnessed how college values have become the norms of the Senate. On campus, constitutional due process vanishes when accusations of sexual harassment arise. America saw that when false charges were lodged against the Duke University lacrosse players and during Rolling Stone magazine’s concocted smear of a University of Virginia fraternity.
Americans may disagree about the relative credibility of either Kavanaugh or his accuser, Christine Blasey Ford. But they all witnessed how the asymmetry of the campus governed the hearings.
Ford’s veracity hinged on empathy and perceived believability. There was little requirement of corroborating testimonies, witnesses and what used to be called physical evidence. In contrast, Kavanaugh was considered guilty from the start. He had to prove his innocence.
One belief of the university is the postmodern idea of relativist truth.
On campus, all can present equally valid narratives. What privileges one story over another is not necessarily any semblance to reality, at least as established by evidence and facts. Instead, powerful victimizers supposedly “construct’ truths based on their own self-interests. As a result, self-described victims of historical biases are under no obligation to play by what they consider to be rigged rules of facts, evidence or testimony.
This dynamic explains why Sen. Cory Booker (D-N.J) insisted that Dr. Ford told “her truth.’ In other words, evidence was not so relevant. Ford’s story of events from 36 years ago inherently would have as much claim on reality as Kavanaugh’s rebuttal””and perhaps more so, given their different genders and asymmetrical access to power.
There was little interest in discovering the ancient idea of the Truth.
Here is Roger Kimball on The Democrats’ Dead Ideals:
The ground is littered with dead and wounded ideals: civility, dead; basic decency, dead; the presumption of innocence, gravely wounded, ditto for the idea of due process. And this disgusting carnage is all on you, O ancient one, Dianne Feinstein, and your self-important, preposterous colleagues. You were desperate to keep Brett Kavanaugh off the Supreme Court so you abandoned any semblance of decency and respect. You travestied the processes of the United States Senate for the sake of a cynical grab at power. I’d say that you should be ashamed of yourselves, but, like the thugs that you are, you have no shame. You believe the acquisition of power is a magical antidote to shame. You are wrong about that, and one can only hope that you will one day reap some portion of the obloquy you have sowed.
…There are not words sufficiently contemptuous to describe this repulsive display. Several commentators have drawn parallels between the unfounded attacks on Judge Kavanaugh and the tirades of Senator Joe McCarthy in the 1950s. A better parallel, perhaps, is the case of Captain Alfred Dreyfus, who was ritually humiliated, drummed out of the French army, and given a sentence of life imprisonment on trumped up charges of espionage. He was eventually cleared, years later, but his career had been shattered and his life ruined. “Where do I go to get my reputation back?’
The real crime of Captain Dreyfus was that he was Jewish. The crime of Brett Kavanaugh is that he is Donald Trump’s nominee.
Here are some facts of the matter. Until he was nominated by President Trump in July, Brett Kavanaugh was not just widely admired, he was universally commended for his intelligence, his judiciousness, and his impartiality. Everyone who worked for him, he worked for, and everyone he worked with sang his praises. In the aftermath of Christine Ford’s accusation, scores of women from Judge Kavanaugh’s past — girls he had been friends with and dated in high school, college friends, professional colleagues — attested to his integrity and decency.
On the other side, what do we have? We have Christine Ford and in her toxic wake increasingly preposterous accusations by unhappy hysterics like Deborah Ramirez, whom The New Yorker spent six days helping to “assess’ her memories, and various lowlifes dredged up by Creepy Porn Lawyerâ„¢ Michael Avenatti. Stepping back, we can see that the spectacle forms a sort of bell curve:
1) Rumors of a letter in Senator Dianne Feinstein’s possession are leaked to the jackals of the press.
2) After the Senate hearings conclude, the letter itself is leaked. It accuses a drunken 17-year-old Brett Kavanaugh of pushing Christine Ford on a bed and fumbling with her bathing suit. (That, by the way, was the alleged “assault.’)
3) With Deborah Ramirez, the volume increases in this Wagnerian drama. Now an 18-year-old Brett Kavanaugh is accused (no witnesses, though) of exposing himself to Ramirez at drunken party at Yale.
4) Volume now at full blast, Creepy Porn Lawyerâ„¢ Michael Avenatti pushes Julie Swetnick into the jackals’ klieg lights. She says (but offers no proof or witnesses) that she had been at 10 parties — 10! I guess she liked those soirées — at which Brett Kavanaugh participated in drugging and gang-raping women.
5) Another chap, now under criminal investigation for offering false information to the Senate Judiciary Committee, said that Brett Kavanaugh participated in assaulting a woman on a boat in Newport.
6) Diminuendo now. The Newport story falls apart. The Ramirez story falls apart. The Julie Swetnick story falls apart.
7) The music is very soft now. Almost every particular of Christine Ford’s story disintegrates.
Remember the second front door she wanted installed in her house as an emergency escape route in case the boogeyman came back and assaulted her? She said it was in an argument with her husband over that that she first mentioned Brett Kavanaugh. But that was in 2012, when she was in couples therapy. (It would be nice to know more about Christine Ford’s psychiatric history.) In fact, the Fords got a permit for the front door in 2008, years before. Over the years, the front door was used by renters and then for Ford’s psychology practice (though I can see how her patients might have regarded it as an escape hatch).
Remember her supposed fear of flying? It turns out that she flies all the time. The real question is, who gets her frequent flier miles? Rachel Mitchell, the sex-crimes prosecutor that the GOP senators employed to question Christine Ford at the hearings because she was too delicate to be questioned by men, has released a memo detailing the many contradictions in Ford’s testimony.
8) Back on the ground floor now, the New York Times, in one last, pathetic effort to smear Brett Kavanaugh, runs a piece titled “Kavanaugh was Questioned by Police After Bar Fight in 1985.’ The story, written by an anti-Trump, anti-Kavanaugh Times opinion writer, reveals the astounding fact that Brett Kavanaugh might have thrown ice at someone in a bar. It’s so quiet now that you can hear the titters in the background. From drugging and gang raping women to throwing ice at someone in a bar in one week. Swift work!
Finally, here’s Andrew McCarthy on the question of Mr. Kavanaugh’s ‘judicial temperament”:
Brett Kavanaugh has been a judge for a dozen years on one of the most important judicial tribunals in the country, the United States Court of Appeals for the D.C. Circuit. In that office, not only has he issued over 300 opinions, which have been broadly admired for their craftsmanship and heavily relied on by the Supreme Court and other federal courts; he has also been widely praised for his judicial temperament by litigants, colleagues, and bar associations. The diverse group of clerks he has mentored has been in high demand for Supreme Court clerkships and other distinguished positions in the legal profession.
His judicial temperament could not be more apparent.
By contrast, here is Supreme Court justice Ruth Bader Ginsburg speaking about Donald Trump, then a presidential candidate, two years ago:
He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. . . . How has he gotten away with not turning over his tax returns?
Guy Benson reminds us of some similarly injudicious remarks by Justice Ginsburg:
In a New York Times interview, Ginsburg doesn’t hold a thing back when it comes to the 2016 election. “I can’t imagine what this place would be ”” I can’t imagine what the country would be ”” with Donald Trump as our president. . . . For the country, it could be four years. For the court, it could be ”” I don’t even want to contemplate that.’ Ginsburg also recalled something her late husband said about such matters: “Now it’s time for us to move to New Zealand.’
Enough for now, I think. The weekend will be interesting.
