Kavanaugh’s confirmation is a terrible setback – but still only a setback
06 October 2018 15:46
‘To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters…’
Thus, in the all-important Federalist Paper 76 (1788), did Alexander Hamilton defend the role of the US Senate in scrutinising senior presidential appointments. Two hundred and thirty years later, in its disgraceful confirmation of Brett Kavanaugh as a Supreme Court Justice, has the upper house has utterly betrayed this trust.
Why has this case captured the attention of the world, far beyond the committee rooms of Washington and the febrile precincts of the White House? For the simple reason that Professor Christine Blasey Ford’s testimony to the Senate Judiciary Committee on 27 September was so powerful, compelling and resonant. In her description of Kavanaugh’s alleged sexual assault – about which she is ‘100 per cent certain’ – she spoke for women everywhere who have been too frightened, traumatised or otherwise constrained to talk about similar experiences.
Much of the opprobrium heaped upon Ford has been straightforwardly ignorant. A glancing knowledge of trauma and its long-term psychological effects would have perhaps dissuaded her foes from asking why it took Ford so long to tell others about what had happened to her. This she did in 2012, disclosing details to her husband and to her therapist (long before Kavanaugh was nominated by Donald Trump, please note).
The populist Right has resorted to pathetic claims that Ford is an agent or puppet of the anti-Trump ‘deep state’. But any ordinary, decent human being – unimpeded by misogyny or the crazed delusions of conspiracy theorists – who watched Ford’s testimony would have concluded that she was as terrified and miserable as she was lucid and honest. What possible motivation did she have to deceive, or to put herself through the wringer of global scrutiny unnecessarily?
At the behest of Senator Jeff Flake (Arizona), a short FBI investigation was held into the claims against Kavanaugh. It has now become appallingly clear that this inquiry – if it deserves the name – was stage-managed by the White House. Don McGahn, the White House counsel, was reportedly instructed by Trump on Sunday to ensure that the scope of the FBI’s review was appropriately constrained. Key witnesses were not interviewed; supplementary leads were ignored.
Meanwhile, the President – having initially described Ford as a ‘credible witness’ – mocked her in the most disgusting fashion at a rally in Mississippi. In the worst possible sense, Trump is the gift that keeps on giving: every time you think he has hit ethical rock bottom, he sinks lower.
Since the #MeToo movement launched a year ago, it has been commonplace to argue that men are being denied ‘due process’. But this term is quite specific and legal in character: Kavanaugh has not been subject to prosecution, but facing a job interview. The post for which he has been put forward requires absolute probity of character: so central is the US Supreme Court to its constitutional fabric and the well-being of the republic that its justices must be above suspicion.
This is why Senator Susan Collins (Maine) was right to refer to the ‘balance-of-probabilities’ criterion on Friday; and why it was so depressing that, supposedly applying this criterion, she announced her intention to vote to confirm Kavanaugh. In so doing, she proved herself unworthy of Hamilton’s faith.
The newly-confirmed Associate Justice is not fit to be named alongside the court’s greatest figures, such as Louis Brandeis, William Brennan, Oliver Wendell Holmes and Ruth Bader Ginsburg. That he will now wear the same robes marks a bleak day for the US Republic – and a setback for the gender revolution that is sweeping the world.
But it is only a setback. Trump’s shabby victory will, quite understandably, prompt outrage all over the world. Then, however, it will mobilise redoubled activism everywhere – not just in the US, but in every country where this battle for basic justice and civil rights is being fought. We share this anger and pledge our support.