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Kavanaugh - A Risk We Can't Afford to Take


In 2016, our current president, when still a candidate, boasted that he would surround himself “only with the best and most serious people." "We want top-of-the-line professionals," he insisted.

That clearly hasn’t worked out so well, with two cabinet appointees resigning under scandal, another one ending a reign as one of the least effective Secretaries of State ever, and other lower level officials cycling in and out of the administration like characters in “It’s a Mad Mad Mad Mad World.”

Fortunately for the country, these officials have blessedly short tenures, so far ranging from a few weeks (Michael Flynn), to less than two years (Scott Pruitt). It seems like an eternity now, but even those cabinet members who are still in place should be out of government and back to corporate lobbying within a few short years. Maybe we can survive this interregnum with less than the best people until saner heads take over.

Unfortunately, there is one place where the failure to select the best professionals portends dire consequences—the Supreme Court. Each Justice is one of but nine people with unchecked legal power, who can join in an opinion with just four colleagues to set binding (so they say) precedent. Moreover, this person serves for life (a fact I lamented in a previous post), thus allowing him to influence American jurisprudence for the better part of two generations.

It’s true that the men who’ve served on the Supreme Court have not always been the best and the brightest. (I say “men”, because the four women so far have been pretty great.) They’ve come up with some cockamamie decisions such as Dred Scott, Plessy v. Ferguson, and Citizens United (corporations, people—same difference). But that doesn’t mean we shouldn’t strive for excellence in this exalted and influential position.

Let’s say politics was not an issue in naming a new Supreme Court Justice. Let’s say that, like the United Kingdom or Israel, we really did aim to select the best person, and had a judicial selection commission to consider this appointment. How would such a body treat the potential candidacy of Brett Kavanaugh?

Such a commission would weigh all evidence and not make a rush to judgment. It would mobilize an experienced set of investigators to look into allegations. Its ultimate decision would be based not on party affiliation but on qualification for the office.

In contrast, how are the Senate Republicans treating the Kavanaugh nomination? Rushing through the hearings and withholding hundreds of thousands of documents. Doing everything possible to get this done well before the midterm elections. And treating the sexual assault allegations against Kavanaugh as a mere hiccup on the road to confirmation. “Hiccup” is the term used by dimwitted Senator Dean Heller of Nevada. Citizens of that state—if you think the integrity of the next Supreme Court justice is important, then vote against Heller this November. He doesn’t care a bit about your democracy.

If Brett Kavanaugh were the defendant in a criminal case, then he would be entitled to full presumption of innocence. If he were the defendant in a civil case, then the plaintiff would have to supply burden of proof. But judicial nominations are of a different nature, and the burden of proof is on him. We should never take a chance on whom we hire to be our next Supreme Court Justice. We should do more than just pay lip service to the idea of finding the best people. The risks are too great to take a chance with the country’s jurisprudence.

I still predict that Kavanaugh will be confirmed. And if the allegations against him are true (like I said, they should be investigated), then it means our next Justice will be a sexual abuser and a liar. Quite a package for a man who will be ruling on women’s reproductive issues, health care, and possibly the criminal liability of a president.

Make no mistake, even if Kavanaugh is confirmed, the truth will come out. The Senate Republicans may not seek out an investigator, but we have a number of journalistic outlets who will do so. Put Ronan Farrow on the case; I’m sure he’ll get to the bottom of this. And if so, if the allegations are proven true for a Justice now sitting on the bench, what will that do to the reputation of the Court? Will its honor and impartiality be a thing of the past?

The only decent thing for the Senate and the current president to do is honor Christine Blasey Ford’s request and fully examine her allegations against Kavanaugh. If they are true, he has no place on the Supreme Court. This is too important a decision, and as I have said, the risks are too great.

In short, this nomination by now has little to do with whether or not you agree with Kavanaugh’s judicial philosophy. Right now, a key pillar of our democracy is at stake. Can we trust Republicans to exercise sound judgment and make sure that only the best people become justices? Well, there is always a first time. It is a mad mad mad mad world.

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