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October 21, 2018167Views

The Kavanaugh Confirmation & Its Place in American History

Jonathan Headington explains the confirmation of Brett Kavanaugh and why it represents a unique point in Supreme Court and American history

Bad-natured, partisan US Supreme Court confirmations are not an entirely recent phenomenon. Grover Cleveland had difficulty getting nominees confirmed by a Senate dominated by his fellow Democrat yet implacable rival David B. Hill, and Richard Nixon suffered two rejected nominations in a row at a time when the two major parties were still restructuring into the straightforward conservative-liberal dichotomy we know today.

Two names previously stood out though in recent history: Robert Bork (whose sustained media and political attacks and ultimate rejection gave us the verb 'bork') and Clarence Thomas. Both marked a new shift in the politics of Supreme Court nominations, and a very abrupt shift; just one year before Bork in 1986, Antonin Scalia, the most conservative Supreme Court Justice of the past 50 years, was confirmed by the Senate by 98 votes to 0. Joe Biden, at the time the ranking member of the Senate Judiciary Committee and subsequently its chairman including for both the Bork and Thomas confirmations, later said he regretted not opposing Scalia.

Bork and Thomas' confirmations have since loomed large in American political consciousness; being too young to remember either of them, both to me have that feel of being major historical events which I didn't experience, and I wonder whether people appreciated at the time what a mark they would leave. History in the making isn't always obvious as it happens, but it was for the confirmation of Brett Kavanaugh, and with its clear significance came partisanship and ugliness perhaps to outdo even Bork and Thomas.

When it comes to the Supreme Court, for the left the end justifies the means; if you can get the Court to achieve the double whammy of effectively writing what they want into law and at the same time put that issue beyond the reach of elected legislators (and so democracy itself), then the shoddy fact that this whole process is just getting liberal judges to read into the Constitution what they want to be there is acceptable. Likewise, if keeping a conservative judge off the court and maintaining a liberal majority can only be achieved by attempting to destroy that man's career and reputation, then it's a price worth paying to keep nationwide abortion, particularly as they're not the ones paying it.

The right, though, is not just the other side of the coin when it comes to the Supreme Court. The right's position isn't that the Court should decide the other way on abortion or gay marriage, but rather that these issues are the purview of the legislature, and if the Constitution doesn't mention something, it isn't the place of the judiciary to read these things back into the Constitution but rather for legislators to legislate. This philosophy, that the law should just be what the text of the law says and not what judges want it to say, is called textualism.

The irony of The Democratic Party using the Supreme Court to put its pet issues beyond the reach of democracy is almost too obvious to point out, just as one almost has to admire the audacity of their claims to act on the principle expressed by Michelle Obama of 'when they go low, we go high' (their oft-repeated catchphrase of the last couple of years). As we'll see, this audacity was about to be stretched beyond a joke.

The heightened significance of Kavanaugh is down to him changing the balance of the Supreme Court in favour of conservatives. Donald Trump has already had one successful nomination in Neil Gorsuch, who replaced the late Antonin Scalia. Gorsuch's confirmation vote though was narrow and almost exactly down party lines with just a couple of relatively conservative Democrats voting in his favour. This is in contrast with Barack Obama's two nominees (Elena Kagan and Sonia Sotomayor), both of whom passed with around two-thirds in favour (meaning significant Republican support), and indeed, since Clarence Thomas in 1991, only George W Bush's nomination of Samuel Alito had a particularly close margin.

Trump getting another nominee wasn't unexpected, but the source was: the retirement of Anthony Kennedy, Ronald Reagan's replacement nominee for the rejected Bork, who disappointingly turned out to be a mainstay of the liberal wing of the Court. Justices Kennedy, Stephen Breyer and Ruth Bader Ginsburg are all over 80, so the replacement of one or more soon seemed likely, but for a liberal Supreme Court Justice to retire a year and a half into the Trump presidency, with enough time before the midterms to confirm a new Justice while the Republicans would still definitely be a majority in the Senate, was a surprise to all.

Judge Brett Kavanaugh had been appointed as a federal judge to the DC Circuit by George W. Bush 12 years prior, and had been listed among Trump's potential nominees; his candidacy was regarded as likely enough that liberals had the signs opposing him premade, along with those for some other nominees just in case. Like Gorsuch, Kavanaugh had a reputation as a textualist in the Scalia mold. Many Democrats immediately pledged to oppose him, citing of course the expectation he'd vote to overturn the 1973 decision of Roe v. Wade, which decided a right to abortion had been hidden in the 14th Amendment for over a century and no one had noticed.

His confirmation initially proceeded as would be expected; inside the Senate the hearings were the usual dry questioning, senators trying to nail Kavanaugh down to answers on specific cases and issues, and him giving generalised answers. This has long been how confirmations play out.

Possibly the most memorable moment came as Senator Cory Booker, probably with an eye on running for the 2020 Democratic presidential nomination, made an attempt at looking heroic which ended up tarnishing whatever reputation he had as he proudly declared he'd be releasing confidential documents knowing the potential penalty for doing so was that he could be ousted from the Senate, but that the public should know the contents, which pertained to Kavanaugh and race. This performance was a pratfall for several reasons: firstly, the documents were actually cleared and released that morning anyway so his pretense of brave rebellion was just that, a pretense; secondly, the contents showed that Kavanaugh actually opposed racial profiling as probably unconstitutional; thirdly, and perhaps most damningly of all, Booker likened himself to Spartacus.

Also demonstrating that the most memorable parts of these proceedings usually aren't the dry question-and-evasion routine, Zina Bash, one of Kavanaugh's team who sat on the first row behind him, was accused in the media of making a white supremacist hand signal with her hand rested on her arm. This 'white supremacist' signal is, of course, just the OK sign anyway, re-imagined as being a WP for 'white power' by 4chan so the gullible media would start seeing it as such. Another layer of absurdity is present in the fact Bash is part Jewish and part Mexican. A couple of days after this made the news, Bash, again sat behind Kavanaugh, flashed an explicit OK sign, and so it was that the libs were epically trolled.

Outside the Senate, the protests were as vociferous as we've come to expect from leftists in the age of Trump, particularly with the right to abortion as the focus. The Handmaid's Tale having recently been adapted for television has given the left a new literary reference to add to Harry Potter, so some protestors wore costumes from that in bait for the left wing media to call pictures of them 'powerful'. Protests also erupted sporadically on the inside from public spectators, leading to arrests including perpetual nuisance Islamic activist Linda Sarsour. During the initial hearings, from September 4-7, 227 protestors were arrested in total. Senator Susan Collins, naturally a target as she's Republican and a woman, was sent 3,000 coat hangers, because of course that's the only alternative to abortion on demand and not, say, contraception and responsibility.

Kavanaugh's hearings finished on September 7, and the vote was set to take place on September 20. It was now that we learned about Dr. Christine Blasey Ford.

Senator Dianne Feinstein first received a letter from Ford in July, alleging that Kavanaugh had assaulted her in 1982, when he was 17 and she was 15; Feinstein took no action, and didn't mention it, either in the private or public hearings with Kavanaugh. On September 12 online publication The Intercept revealed the existence of the letter, on September 14 The New Yorker revealed its contents (though didn't reproduce the text) and the letter itself appeared online from September 16, the same day as Ford made her identity public. Writing the letter hadn't been Ford's only action; she had also spoken to her congresswoman Anna Eshoo (through whom the letter would reach Feinstein) and contacted the Washington Post tipline. The crucial thing to know is that it seems Ford wanted to influence events while remaining anonymous.

On the one hand then we were to believe that the allegation was serious and credible and could disqualify Kavanaugh from serving on the Supreme Court (albeit by people who believe his judicial philosophy disqualifies him anyway), and on the other hand Senator Feinstein had this letter but, as Ford wanted to remain anonymous, it wasn't so serious that it should be brought up at any point throughout the whole confirmation process, but as it was brought up because someone leaked it then it is incredibly serious after all. That's the kind of logic we're dealing with when it comes to the Democrats.

Why though would Feinstein want to sit on the letter until this point? I believe it was about maximising its effect in attempting to stop Kavanaugh. The allegation itself is weak, and so she could reasonably hope initially that perhaps something might come up in the hearings that would play against Kavanaugh such that he would lose the vote, and she wouldn't need Ford's allegation to stop him at all. Once it was clear that this wasn't the case, she then passed the letter to federal authorities. This is similar to how the Anita Hill sexual harassment allegations against Clarence Thomas weren't brought up until right at the end of his hearings. What's more there was just a month and a half to go until the midterm elections, and so from here began the other plan: that the whole process could be dragged out until the Democrats would hopefully retake the Senate in November.

 

 

Two things are necessary to know to place what would happen next into context. The first is the so-called Republican war on women, a vicious phrase which reached full prominence during the 2012 Presidential election. What it boils down to is that Republicans oppose abortion (hardly a war on women, considering half of the unborn are female and women usually poll as slightly more pro-life than men on the whole), but the attack was multi-pronged.

Republicans favour religious liberty, including for employers with moral objections not to have to fund their female employees' birth control. In opposing abortion, Republicans are also against federal funding of Planned Parenthood, the largest provider of abortions in the US; as Planned Parenthood also provides breast cancer screenings, STD tests and non-abortion pregnancy services (though what proportion of what they do is abortion is tricky to nail down, not least due to a lack of transparency by this organisation which accepts taxpayer funding), this action is again taken to be part of the GOP war on women, as though there's no other way of securing or funding the other services outside of giving millions of dollars to an organisation which offs upwards of 300,000 unborn babies every year.

A couple of clumsy comments in 2012 were also used to advance the war on women narrative. Mitt Romney in the second presidential debate referred to 'binders full of women' being brought to him as Governor of Massachusetts when he asked for more female candidates when he was putting together his cabinet; how this could be construed as anti-women when it's plainly the opposite defies logic, but thanks to the leftist tactic of repeating a phrase with no context to attack opponents, 'binders full on women' entered the zeitgeist and has been remembered since. The same year, Republican Senate candidate Todd Akin when discussing abortion in cases of rape used the phrase 'legitimate rape', both an inaccurate adjective for what he was getting at and a real blunder when it comes portraying policy; as such this was cast as anti-women malice and that characterisation then projected onto the GOP at large.

The war on women trope has been periodically revived since, though despite Trump's chequered past, occasional remarks about women such as Rosie O'Donnell and Megyn Kelly (not that he was any less restrained about male opponents) and the Access Hollywood tape, it never managed to stick with Teflon Don, perhaps assisted by who his Democrat opponent's husband was. As it turned out, more white women voted for him than Hillary Clinton, just as more have voted for the Republican candidate in every presidential election apart from 1996 and 1964 (though ethnic minority women, as well as non-white men, reliably lean Democratic). Despite the seeming lack of success of the 'war on women' attack however, Republicans at large were cautious and circumspect when Dr. Ford's allegation against Kavanaugh was brought forward, knowing how much the media insists on portraying them as having a women problem.

The second thing to contextualise the subsequent proceedings is the 2017 special Senate election in Alabama, in which Doug Jones became the first Democrat in 25 years to win a US Senate election for the state. He ran against Roy Moore, thought by many not to have been the ideal Republican candidate, but the election was marked by day-in, day-out coverage of multiple allegations of sexual assault against Moore, alleged to have taken place during the 1970s. Moore himself had a long career in both the judiciary and politics and had been Chief Justice of the Alabama state Supreme Court, and yet weirdly it wasn't until he ran for the US Senate at a time when the seat would be as important as ever that multiple allegations of abuse four decades earlier were made. Democrats and the media made hay out of them and many prominent Republicans called for Moore to drop out.

The Alabama election as such seemed to be a test case for the left as to whether essentially unverifiable allegations of sexual abuse from many years prior could damage someone's reputation enough to give them the victory, and having achieved success in this instance, they deployed the same strategy again against Kavanaugh. This was assisted by the new prominence of the #MeToo movement, and is a useful deflection onto the right, being as it started with numerous allegations against Harvey Weinstein who, being a big Hollywood producer, every left wing figure and his dog seems to have a now awkward photo of them palling around with.

As with Roy Moore, Dr. Christine Blasey Ford's accusation dated back decades, in this case to 1982 when she alleges a heavily inebriated 17 year old Brett Kavanaugh pushed 15 year old her into a bedroom, onto the bed, groped her, held his hand over her mouth, attempted and failed to pull her one piece bathing suit off, then gave up and just laughed hysterically as his friend Mark Judge, who had observed all this, laughed along with him. All witnesses Ford cited as being present at the party would not corroborate her story (under penalty of perjury), and her lifelong friend Leland Keyser said she did not recall ever meeting Kavanaugh nor attending any party where he was present. Neither could Ford recall where the house was or how she got home, and though she said she mentioned the assault in couples therapy in 2012, the notes say it involved 4 boys and not 2 (Ford claimed the therapist made a mistake), and nor did the therapist's notes name Kavanaugh.

What can reasonably be done with such an allegation, kept quiet for 36 years until the alleged assailant is nominated to the Supreme Court, to be one-ninth of the body with the ultimate say over the laws of the most powerful country in the world? The only potential corroboration could be witnesses, and all those offered did not do so. Should the accusation alone, out of nowhere and at a moment of optimal political expedience for the left, be enough to ruin the previously unblemished reputation of a man and possibly jeopardise his career and with it his life and the lives of his family?

If you're on the left, then the answer is clear: well duh, obviously! This is, of course, assuming the target is on the right; mentioning Bill Clinton seems clichéd at this point, but Deputy Chair of the Democratic National Committee Keith Ellison has his own domestic abuse allegation at the moment, which the left aren't nearly so keen on you bringing up. Assuming you're a political enemy though, guilty until proven innocent seems to be the standard, calling to mind the strategy wreaked by the first leftists, the Jacobins, and their Committee of Public Safety. So too is the underlying justification the same, that of protecting the revolution, and likewise the real crime is being a counter-revolutionary.

More than one commentator likened the Kavanaugh situation to To Kill a Mockingbird, in that a man falsely accused is believed to be guilty, in that case because he was black, but in this case because he's a conservative. A left-winger may be inclined to scoff at this, because they'd see themselves as on the obviously right side, that Kavanaugh is a white man and perpetrator of the patriarchy and so the complete opposite of the situation Atticus Finch faced; they prove the point here by missing it completely – the prejudiced never recognise themselves as prejudiced. Patriarchy is the pretext for prejudice in this case, and so follows the righteous anger.

From the publicising of Ford's accusation, the mob mobilised. #BelieveWomen and #BelieveSurvivors were the hashtags and slogans tweeted and chanted nonstop. Saying to believe survivors is of course circular, because how do we know they're actually survivors to begin with (it's why we have courts to administer justice and not mobs), but it also tries to walk that tightrope of modern feminism; on the one hand Cultural Marxism seeks to divide according to victimhood, but at the same time women are strong and independent. #BelieveVictims would contradict the latter, so it's become survivors instead, on the grounds that overcoming a negative experience, even one not life-threatening, makes a woman a survivor. I suppose we can thank Destiny's Child. Bogus statistics were frequently repeated asserting that false accusations of rape are just rare enough that seemingly all potential false allegations can be cancelled out by Bill Clinton's accusers, and so we can now do away with due process; Michelle Malkin unravels the real false accusation statistics here.

A couple of activist videos particularly caught my attention during this time and seemed representative of the leftist perspectives in general; as is typical of left wing activist videos, they followed a similar pattern of a montage of women joined together to tell a message while sombre music plays in the background. The first was directed at Kavanaugh himself, asserting neither his guilt nor innocence, but that he should nevertheless withdraw for the sake of the Court's legitimacy, and just to make extra sure he has a reason not to if only to spite them, ended with 'Your time, Judge Kavanaugh, is up'. It can be so hard to tell if leftist campaigners are really convinced by what they say or if it's just particularly despicable realpolitik, but imagine the precedent it would set if any accusation could make a nominee withdraw. America would have to get used to an 8 person Supreme Court. Kavanaugh withdrawing have suited Democrats as well of course, as a new nominee's confirmation would begin after the midterms; perhaps there was some hope of making the process punishing enough that he would. Instead though, Kavanaugh dug in and was determined to clear his name.

The second video is directed at Ford, and came out only a few days after her name was publicised, long before her testimony. In it, a succession of activists and celebrities tell her that they believe her, that she's strong and that her allegation is credible despite never having seen or heard her and the previously mentioned complete absence of corroboration. It ends with 'Signed, your sisters', the last word hissing as they all earnestly repeat it. The standard for evidence here is seemingly so low that these people will believe anything any woman writes in a letter.

One particular person who was brought to prominence was Democrat Senator for Hawaii Mazie Hirono. Some of her tremendous contributions in the press during this delicate situation were to say the men of America should 'shut up, step up and do the right thing for a change' and, most staggeringly, when asked about whether Kavanaugh's entitled to the presumption of innocence that she puts Kavanaugh's denial in the context of how he decides his cases; for Hirono, being a judge she doesn't like makes you guilty of anything someone accuses you of. Another towering intellect to add to the 2020 field, perhaps.

The Republicans though were prepared to treat the allegation both seriously and delicately, and wanted to set up a hearing for Ford. This was subject to some horse-trading between the senators and Ford's lawyers; initially her lawyers only wanted her to be questioned by senators, who on the Republican side of the Judiciary Committee were all male (bad optics), rather than by an outside counsel as eventually transpired, and a further condition was that Ford wouldn't have to be in the room at the same time as Kavanaugh. Worst of all though, they wanted Kavanaugh to testify first, before Ford – effectively asking for him to mount a defence before he's heard her allegation.

Two further accusers, Debbie Ramirez (who alleged an incident of indecent exposure) and Julie Swetnick (who alleged attendance at multiple gang rape parties) also came forward, though attempts by Republicans to also secure their testimony with Ford were unsuccessful. In the case of Swetnick at least, the outlandish nature of her claims and subsequent interview with MSNBC meant even liberals knew her accusation was a hindrance to their cause rather than a help. 'Believe Women' may have its limits after all.

At a time when the Democrats wanted anything to help stall for as long as possible, there were worrying signs as the testimony hearing, originally set for September 24 (the Monday) was put off by Ford's side, saying she had a fear of flying and so had to drive instead. The fear of perpetual delays was allayed though as it eventually took place on Thursday September 27, and as I and so many others prepared to watch proceedings live, one thing was certain: whatever would happen, history was about to be made.

 

 

The Democrats' moral grandstanding at Ford's testimony session began near the outset; the hearing opened with Republican Senator Chuck Grassley (Chair of the Senate Judiciary Committee) recapping the facts that had led up to that point, following which Dianne Feinstein immediately launched into sexual abuse statistics and memories of Anita Hill during the Clarence Thomas hearings, as though this should have any bearing on the credibility of Ford's testimony, and decided to recount too the allegations of Ramirez and Swetnick even as their own lawyers wouldn't co-operate.

After briefly introducing herself, Dr. Christine Blasey Ford immediately began speaking in the voice that would characterise her entire testimony: a perpetual quivering, as though on the edge of crying without actually crying. This is entirely amateur dramatic and exactly how someone would put it on. And yet, judging the reaction at the time, many seemed convinced by it, not just liberals but conservative pundits as well; combined with a cutesy innocent demeanor throughout and a voice you wouldn't have expected before she opened her mouth, perhaps this isn't surprising, but her performance is just how one would put on an act. Ford recounted that drunken teenage Brett Kavanaugh in the summer of 1982 (prosecutor Rachel Mitchell, to whom the Republicans had delegated their questioning of Ford, would later clarify how the year was guesswork) had pushed her into a bedroom at a house party, attempted to pull her bathing suit off and held his hand over her mouth (which she feared would kill her), and then gave up as Kavanaugh and his friend Mark Judge laughed as they had done throughout (a pantomimish detail too far, which she would return to later in the questioning as being 'indelible in the hypocampus').

Further details in her follow-up seemed strange. She mentioned having a second front door put on her house due to the fear from the assault (though didn't mind subletting to Google interns). She said she came forward having seen Brett Kavanaugh on a shortlist of judges who would potentially be appointed to the Supreme Court in July 2018, but she'd been aware much earlier that Kavanaugh could one day be appointed; making it to circuit judge was one thing, but seemingly the Supreme Court was too far, even though she claimed not to have made her allegation based on any political motive.

She testified how she told friends on a beach (a very odd detail) about the assault, and from there reached the decision to write a letter to Senator Feinstein, who replied that she would keep it confidential unless Ford said otherwise. She claimed to have agonised over the decision, but ultimately decided against going public. I believe she sent the letter hoping word of it would spread and be enough to influence Kavanaugh's confirmation without having to take any public action; instead that's not how it worked, but then of course the letter was leaked and set this wheel turning.

Democrat interventions kept up the theme established by Feinstein of requesting an FBI investigation; FBI investigations into nominees though do not reach conclusions, and the alleged assault on Dr. Ford would be a state crime rather than a federal one. As we saw later once an FBI investigation had taken place, they criticised its lack of time and scope, and the clear intent was to drag the process out beyond the midterms in the hope that the Democrats would take the Senate.

Democrats fawned throughout; Senator Patrick Leahy, after requesting an FBI investigation to establish the truth (even though that's not what they do), said Ford was owed a debt of gratitude for inspiring other survivors. If victims of sexual assault are encouraged to seek justice then this can only be a good thing, but if Ford's lying then that is not justification for destroying a man's life for a political cause, and the chants of sexual assault victims have no bearing on the truthfulness of Ford's claim. And yet, time and again when Democrats and activists spoke, we'd hear about statistics and experiences that weren't anything to do with Ford and Kavanaugh.

Senator Dick Durbin expressed the same gratitude as well as adding his own earnest assurance that she didn't sound like a liar, and also added another line which would be frequently repeated in the media: that Ford had nothing to gain by coming forward. With her social media having been wiped shortly before for some reason (indeed, her presence on the internet vanishing so completely, some have suggested some collaboration in this by Google, whose interns she sublet part of her home to) we'll never be certain of the previously expressed political views of this registered Democrat female professor at a California university who donated to Bernie Sanders, and so it's complete guesswork whether she'd have any interest in keeping the Supreme Court from having a conservative majority, but it misses firstly that the letter was leaked and it's quite possible she never expected to be in this position (not that it did Anita Hill's career any harm), and secondly that her GoFundMe raised over half a million dollars.

Senator Sheldon Whitehouse was the first to bring up that this psychology professor passed a polygraph test. This was brought up a few more times, and Mitchell closed the questioning of Ford on this subject, getting her to explicitly deny that she'd ever either learnt from anyone or taught how to pass a polygraph test; this, in retrospect, suggests she may have known there was cause to think that this could be a lie, as a later sworn statement by an ex-boyfriend said he witnessed Ford actually coach someone to take one.

At the time and seeing the live responses on social media, I initially felt that Rachel Mitchell was a mistake; the Democrats spent all their time affirming and praising Ford, and without a strong counterbalance an onlooker of the session would get the impression of Ford going unchallenged on many fronts, explicitly or implicitly; the soft touch treatment may work on someone who's obviously unconvincing or easy to lead into a trap, but while Ford didn't convince me, it seemed I was in the minority.

Mitchell though was a professional, and besides making a point of getting Ford on record about the polygraph, she uncovered particularly that despite Ford's claims that she was afraid of flying (which put off the testimony by several days), there are numerous instances of her having flown including for holiday purposes to Hawaii, so this would seem to be false. It was also revealed here that the Republicans had offered to fly out instead to get her testimony in California, an offer Ford said wasn't clear to her. While Mitchell seemed to soft ball Ford at the time, she provided much for scrutiny after the hearing.

At half time then, punditry seemed assured that Ford's testimony was, as became a buzzword, 'credible'. Next though came Brett Kavanaugh. His emotion was clear from the start, the emotion of a man who had been smeared throughout the press for weeks, all with his wife in the background occasionally seeming to struggle to hold back the tears. If the outcome should be based on plausibility and even moreso if it should be based on reaching any legal standard of probability, then Kavanaugh's confirmation should have been certain. If though it was based upon believable emotional display, then at this point he regained any ground lost to Ford's performance. His was genuine emotion; not a permanent quiver, but a peaking and troughing of emotion with the occasional need to break and regain composure. It was heartbreaking.

He began by pointing out the flaws in Ford's testimony, and then moved on to how Democrats had attacked him and even called him evil. He himself nearly shed tears as he told how his daughter had prayed for his accuser. So too did he come close to tears as he mentioned all the women who he had known and worked with over his career and had spoken up for him (which included a public letter signed by 65 women), something which was underreported in the media presumably because this doesn't gel with the #BelieveWomen narrative. He even coaches girls' basketball!

Upon their chance to question Kavanaugh, Democrats resumed their obviously pre-determined game plan of pushing for an FBI investigation and took turns asking him repeatedly whether he'd call for one; this was an obvious catch-22, as on the one hand why wouldn't he ask for one if he has nothing to hide (the angle they wanted to push), but with time ticking away to the midterms, there was the chance that an open ended investigation could help put off the confirmation vote to the point where the Democrats had retaken the Senate. Kavanaugh's own stated reason for not calling for it, when Senator Chris Coons specified such an investigation would be a week long, was how long just the prior ten days had felt with its turmoil and accusations.

Proving that something didn't happen 35 years ago is tricky, but being a different era Kavanaugh had his old calendars which he'd kept and which, along with the statements of everyone Ford cited to corroborate her testimony, refuted her, showing that he didn't attend any party in the summer of 1982 that matched her allegation. His yearbook having also been revealed though, questioning from the Democrats focussed on some of the patois contained in it, hoping to expose nefarious meanings. This set the tone in the news cycle for the next week, the absurd spectacle of a man having to explain slang from his yearbook and a Twitter of blue ticks disbelieving on the grounds that terms used by teenagers in the 1980s can't possible have had different meanings from their entries on Urban Dictionary a quarter of a century later – not to mention the incessant focus on his teenage alcohol consumption.

The most memorable moment not only of the questioning nor even of the Kavanaugh confirmation but quite possibly in recent US political memory came as Lindsey Graham, the senior Republican senator from South Carolina, made as stunning an intervention as could be conceived, all the more so because he's previously had a reputation as being one of the wettest Republicans in Congress and was a close ally of John McCain in most things; indeed, he even mentioned he'd voted for Elena Kagan and Sonia Sotomayor's confirmations to the Supreme Court, and the penny seemed to have dropped that bipartisanship only ever seems to have existed insofar as Republicans will cave to Democratic demands.

All through the session, Democrats competed to out-nauseate each other on the scale of their virtue signalling in their contributions; Senator Richard Blumenthal asked Ford to confirm that she's a teacher; upon receiving the affirmative, he said she'd taught America. Kavanaugh, having graciously said he believes Ford may have been assaulted but it wasn't him, was asked by the continuingly ludicrous Senator Cory 'Spartacus' Booker (who recounted his own tale of committing a sexual assault in a 1992 column he no doubt regrets) whether he therefore wished that she hadn't come forward and whether he was questioning her sense of civic duty, as though objecting to a false sexual assault allegation against him being publicised would be a real 'gotcha' moment. Booker also snuck in the social justice warrior-sounding phrase multiple times that Ford had 'told her truth', as though truth is personal and subjective. And that it was 'credible', natch. And this guy's meant to be a real contender for the Democrats' 2020 presidential candidate.

The mystery of who leaked Ford's letter to Feinstein to the press was also raised and questions asked of Feinstein who said she hadn't asked her staff directly whether they were responsible, but nevertheless assured everyone that they weren't. Perhaps Feinstein just cried out in her office one day 'Who will rid me of this turbulent letter!' and someone got the wrong/right idea (it should be noted, the author of the article of the initial leak at left wing website The Intercept says it wasn't leaked by either Feinstein or anyone on her staff, deepening the mystery if true – who does that leave?). Following that, Feinstein suggested the letter itself wasn't really leaked at all, presumably meaning that only the nature of the allegation in it was told to The New Yorker. What a tangled web someone who isn't Feinstein or a member of her staff has woven.

A person alleging a sexual assault before the Senate is a strange means of accomplishing justice; it's not a trial, a legal conclusion isn't reached on guilt or innocence, and while the statutory punishment for the offence isn't meted out, the punishment of halting Kavanaugh's career progression and destroying his reputation was possible and, when it comes to the latter, that black mark may always be against his name. The function of this testimony was merely to sway the votes of senators, directly or perhaps via the public pressure that may result. Clarence Thomas famously decried his own hearings as a circus, something Kavanaugh would echo, and it's not a word a federal judge – whose respect for institutions and procedure would be paramount – would apply lightly. For such a strange set-up to determine the rest of a man's life and possibly the future course of the entire country while having no actual legal standing or ramification (though testimony is given under oath, so perjury proceedings are theoretically possible if factually extremely unlikely), 'circus' seems entirely apt.

 

 

Hopes were that the confirmation vote could take place within the next couple of days following Dr. Ford and Judge Kavanaugh's testimonies, but there were also worries that some Republicans would yield to pressure and reject Kavanaugh. These seemed to be confirmed when Republican Senator Jeff Flake made his Judiciary Committee vote on advancing the nomination to the Senate conditional on a further FBI investigation into Ford's allegation taking place, though crucially specified as being no longer than one week and as only being about Ford and not the other allegations that had been made.

As well as being blessed with a name so apt that you'd think he's written by John Bunyan, Flake has long been considered a RINO (Republican in Name Only) and is not seeking re-election this year, making this one of his final acts as a senator. He had earlier been confronted and admonished in a lift by protestors who said they had been sexually assaulted; not by Kavanaugh though, so why this should have any bearing on the vote wasn't clear. All it did was call into question Senate security. The newly reborn and completely based Lindsey Graham, by contrast, when confronted by a protestor who told him she had been raped was to tell her to go to the cops.

Jeff Flake though just faced his protestors with a glum face, which would be replicated again in this instantly iconic picture of him surrounded by his unimpressed Republican colleagues. He said the protestors hadn't influenced him and he always planned to call for the investigation. In retrospect it turned out to be a good thing – it cleared any imputed stain on Kavanaugh's character that there could have been for many (aside from, shockingly, many Democrat senators who despite getting the FBI investigation they said they wanted, still said they believed Dr. Ford). At the time though, there was a gut-churning fear that this would lead to more delays.

Democratic Senator Joe Manchin, a blue dog conservative outlier of his party from the now very red state of West Virginia (one of only 2 states where Donald Trump won every individual county) made his support for Kavanaugh contingent on the FBI investigation taking place, as did Republican senator for Alaska Lisa Murkowski, herself a party outlier in being pro-choice. The FBI investigation of course turned up nothing, but while Manchin was as good as his word, Murkowski would be the only Republican senator to vote against Kavanaugh anyway, prompting what appeared to be a veiled (and quite funny) threat to primary challenge her for her senate seat in 2022 by Sarah Palin.

This one week period then would be the final stand of the left against Brett Kavanaugh. As well as the predictable complaint of lack of scope (focussed as it was on Ford only and not the other accusations) came the equally predictable complaint of lack of time for the FBI investigation, though during his questioning of Kavanaugh, Democrat Senator Coons specified a one week investigation. It was almost as though they knew really that this FBI investigation (not that they reach conclusions anyway, it operates in the same way as the background investigation all nominees have before their hearings) wouldn't find anything new about an alleged teenagers' party from over three decades ago, and was just another delaying tactic.

A couple of other new lines of attack were trotted out. Kavanaugh's emotion at the final hearing was suggested to disqualify him, usually accompanied by unflattering stills of his face or brief clips of him letting his frustration show in the face of constant smears and attacks on his character, as though reacting like a human should be beneath a judge. His emotion in his testimony certainly doesn't have anything on the age-regressive lack of dignity exhibited by leftist protestors ever since Trump's candidacy, including how they reacted after Kavanaugh won the vote. These are only those caught on film as well, goodness only knows what craziness a mob who will unashamedly chant 'Hey-hey, ho-ho, Kavanaugh has got to go!' will get up to with no cameras on them (and surely anyone not a toddler would be left red-faced merely considering bellowing anything that goes 'hey-hey, ho-ho').

An equally gutter-tier attack on Kavanaugh was that, after the way they had gone after him, he may be partial as a judge against Democrats. That's another future strategy to look out for then, that Democrats will be as nasty and vile as possible towards a nominee, only to then say 'well there's no way he'll be a fair judge to us now!'

Some quarters of the more moderate-sounding commentariat made the argument that while Kavanaugh may not be guilty, surely it would be better that he withdraw anyway in favour of a candidate without these allegations (which is to say, a candidate like Kavanaugh himself before his nomination). Of course, this would achieve the stalling until after the midterms that the Democrats longed for, as well as setting the precedent that similar accusations could be enough to derail future confirmations; and so having worked once, or even twice when we consider Roy Moore, it would become a likely tactic to be made against any conservative nominee until the GOP can find a textualist Kaspar Hauser. You could bet too that should Kavanaugh have caved to the pressure and withdrawn, there are many on the left who would later claim it was a tacit admission of guilt.

There is also, of course, the thorny issue that a man not proven guilty of something shouldn't have to suffer from the allegation, which makes this seemingly moderate line of reasoning all the more a silver-tongued trap every bit as underhanded as the more hardline detractors. The result of this reasoning, after all is the same: no Kavanaugh and no conservative justice before the midterms. Disappointingly though, even Jordan Peterson, who since his brief moments of glory in refusing to make himself a liar against biology by adhering to whatever pronouns trans people insist the world around must adopt, and the time he made Channel 4's Cathy Newman look as intellectually unserious as Cathy Newman probably is, continued his ongoing trend of letting down anyone who ever saw him as a figure of hope by seemingly acquiescing to the same logic.

Surprising no one, the FBI investigation came up with nothing. The Democrats' demand for an investigation with wider scope, covering other accusations against Kavanaugh, went unheeded, and that was their last ditch attempt to delay beyond the midterms; after all, if the investigation starts looking into any accusation, more can come forward as it goes and so the longer it can drag on. As it stood, the last accusation to try to derail Kavanaugh was that he threw ice at someone in a bar in 1985, and so it was that the circus to hopefully end all circuses of this nature concluded with a whimper, indeed a lot of whimpering from the blue side of the aisle.

The day before the cloture vote (the vote the Senate has where they agree to end the debate and take the actual vote; a vote to have a vote, effectively), Brett Kavanaugh himself wrote an op-ed for The Wall Street Journal reiterating that he would be an impartial judge, and it was every bit as dry a read as you would expect of a man whose job it is to write careful, precise decisions steeped in legalese. The cloture vote would once have required a two-thirds majority, but after extending a precedent set by former Democratic Senate Majority Leader Harry Reid regarding judicial nominations in 2017 for the Neil Gorsuch nomination (you can bet the Democrats regret starting that game), now only a simple majority was necessary, and the cloture vote passed 51-49. With that, all hope for the Democrats of stalling beyond the midterms was gone.

There were still some jitters though before the final vote on October 6. As mentioned, Senator Murkowski ultimately opposed Kavanaugh, though to pair off with Senator Steve Daines who had to miss the vote for his daughter's wedding, she merely voted present. Republican Senator Susan Collins (the unlucky recipient of the 3,000 coat hangers) was another potential worry, but after giving a great speech, she voted to confirm. On the Democrat side, Heidi Heitkamp and Doug Jones (the Alabama senator who defeated Roy Moore), both Democrat senators in predominantly red states, were seen as possible votes to confirm Kavanaugh, but ultimately voted to reject, leaving Kavanaugh confirmed by a vote of 50-48. That evening, Brett Kavanaugh was sworn in as the 114th Justice of the Supreme Court.

 

 

While all aspects at the time were covered individually and exhaustively from many corners, this record of events has been written in the aftermath to give a full picture of events. With increasingly frequent agitation against the electoral college and now even the Senate (not to mention the ongoing drumbeat of Trump having colluded with Russia in the 2016 election as though repetition makes it so, or the illegitimacy of the Brexit vote on this side of this pond for that matter), part of the left's constant attack is to delegitimise things that don't go their way, and so they will continue to weave the accusations against Kavanaugh into the ongoing political narrative, to delegitimise him and perhaps even the Supreme Court itself once it ceases to conform to their agenda.

This whole Kavanaugh saga seems to have made the midterm elections more unpredictable according to polling; while the Democrats were thought certain to take the House of Representatives beforehand and to have a possibility of taking the Senate, now control of the House looks like a toss-up and Democrats taking the Senate unlikely. Polling is of course unreliable and can be skewed by methodology (2016 showed us that), and opinions were mixed regarding Kavanaugh throughout – even among women.

As we've seen though, even as the left claims all minorities (and, with women, a majority) as persecuted by an establishment toxic masculine white patriarchy, women or minorities who side against the leftist narrative are excluded from this hallowed regard, recently illustrated by this archetypal figure of a leftist hipster (soyboy in internet slang) roundhouse kicking a female pro-life activist, or this unnerving clip of a mad old liberal activist saying he can commit a rape against a conservative reporter while surrounding activists immediately disbelieve her. Just as 'believe survivors' doesn't count when the accused are Bill Clinton or Keith Ellison, the same basically political dichotomy exists for all, and the left wing's claims of standing up for women and minorities are dishonest rhetoric; really, they only stand up for people who conform to their identitarian view of what these supposedly arbitrary characteristics (brown skin or XX chromosomes) should make them. For a particularly noxious and unhinged example of where this logic leads, see these neomarxist ramblings against white women as 'gender traitors' here link by Alexis Grenell in America's newspaper of record, The New York Times.

The complete lack of corroborating evidence including the denial under oath of all cited witnesses, the vagueness or complete absence of many details, the sheer amount of time that had passed and the political timing of the allegation meant, in my view, that Dr. Christine Blasey Ford should not have impacted Kavanaugh's confirmation. If something did happen to her, law enforcement are the people to speak to, not a Democrat senator just as the confirmation starts 36 years later. Sure enough, since Kavanaugh's accession to the Supreme Court, Dr. Ford has said she won't press charges. Another very telling story that didn't get much media coverage was that Leland Keyser, Ford's friend and one of the supposed witnesses who then wouldn't corroborate, said she was pressured to change her statement.

The Republican line and the line given by Kavanaugh himself on Ford was that they believed she suffered a sexual assault, just that Kavanaugh wasn't the culprit. President Donald Trump though, no stranger to accusations of a sexual nature, put forward his position on the seriousness of false accusations brilliantly at a press conference on September 26. At one of his rallies on October 3, he went further and pointed out how lacking Ford's testimony was, widely reported as him mocking her. Trump had initially held back and stayed pretty quiet on the subject while it was ongoing, but his contributions were perfect, culminating in his apology to Kavanaugh on behalf of the nation at his swearing-in ceremony.

Is it possible someone else sexually assaulted Ford in the past? Certainly. But with all evidence (what there can be after 36 years) contradicting her as it pertains to Kavanaugh, I think this goes beyond either side just believing what falls into line with their desired political outcome; the Republicans were entirely willing to hear Dr. Ford's testimony and did. It's the Democrats who, in the face of the evidence against it, still piously declared that they believed her. If there is a lesson to be derived ultimately though, it's that victims should report any crime against them immediately.

There was plenty of leftist vituperation following the confirmation. We've seen above the madness of some of the protestors. Stephen Colbert writer Ariel Dumas tweeted (since deleted) that she was glad that at least they'd managed to ruin Brett Kavanaugh's life. Linda Sarsour, the activist who had been arrested for protesting inside the earlier hearings, echoed Alexis Grenell in her contempt for Susan Collins and white women who refuse to be subject to the intersectionalist notion of what they ought to be. Here in the UK, where you can be sure popular understanding of Kavanaugh amounts for many people to 'The Americans have just put a rapist on the Supreme Court, that's Trump for you', feminist politicians such as Plaid Cymru's Leanne Wood and Labour's Jess Phillips have insisted on chipping in their predictable two penneth worth. Meanwhile, in the real world, Associate Justice of the Supreme Court Brett Kavanaugh has become the first such judge to hire an all female clerk staff.

What this process has meant for future Supreme Court confirmations we may soon find out, considering the ages of Justices Breyer and Ginsburg. The Republicans may even increase their 51 seat majority in the Senate, and with Heidi Heitkamp's seat in conservative North Dakota now up for re-election, opposing Kavanaugh could have sealed her electoral fate. Doug Jones too may be unlikely to risk again voting against another conservative nominee if one comes up before his Alabama re-election campaign in 2020. If the Democrats do take a hit in the midterms because of this, then it'll show trying to strike down a nominee with an allegation in this manner is like a bee sting, it can only be used once (or at least, once in a generation, considering Clarence Thomas). It seems impossible to imagine now as well that any Republicans will be nearly as willing to co-operate with the nominations of future Democrat presidents as some were with Kagan and Sotomayor.

I'll close by considering Senator Lindsey Graham, once the epitome of a RINO, who in a short time has become someone many Trumpian Republicans would happily support running for President in 2024. When Democrat Senator Elizabeth Warren, who having once postured in her academic career as being part Cherokee (and gained the nickname 'Pocahontas', courtesy of Trump) to the point that Harvard Law School called her their 'first woman of colour', released a DNA test showing her supposed Native American ancestry was negligible at best and possibly lower than the average white American, Graham said he'll take a DNA test reckoning he might be able to outdo her amount of Indian heritage. Graham's shift from the most willingly bipartisan kowtower to the Democrats into a carefree Trumpian memer might just be a microcosm for the transformation of the Republican Party as a whole during the Kavanaugh confirmation; so too have Senators such as Orrin Hatch and Majority Leader Mitch McConnell shown a new similar willingness to stand their political ground and have some fun at the Democrats' expense.

Two real meme images above all others arose from the confirmation; the first was this one mentioned earlier of Lindsey Graham's former RINO stablemate Jeff Flake surrounded by his Senate colleagues. The second though is this one below of Graham, smiling and cheekily adjusting his tie as yet another leftist protestor lets her emotions get the better of her in the background. As Graham's seeming shift might be mirrored in the GOP at large, so too for now does this picture represent the right and left of American politics. I for one hope that, after the midterms and into the future, Graham has cause to keep smiling. If nothing else though, the United States should have a Supreme Court keener on interpreting and applying the law than creating it.

Jonathan Headington

Co-founder and Editor of Excvbitor

 

Twitter: @IonathanRex

 

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