THE TUMULTUOUS DAYS of furious speculation and strange – indeed, quite sad – events have come to an end. A 50-48 vote in favour dictates that Brett Kavanaugh fills the vacancy left by the retirement of his mentor, Anthony Kennedy, and has been sworn in as an Associate Justice of the Supreme Court of the United States.
This was the unfortunate, yet foreseeable, nadir of the extreme politicisation of the process for selecting federal judges in the US. The founders would be appalled. Of course, it is only natural that Republicans and Democrats pick judges whose broad outlook aligns with their own. But the manifest elevation of ideology over capacity in assessing a nominee’s fitness for the bench is a profound perversion of the Constitution.
In the end, one Republican, Lisa Murkowski of Alaska, opposed his confirmation (she declared herself “present” to facilitate a colleague who was at a family wedding) and one Democrat, Joe Manchin of West Virginia, voted for Kavanaugh. Murkowski, a maverick who has endured close-run primary fights before, was apparently swayed by Native Americans in whose community sexual assault is regrettably a major problem. She will surely have another primary opponent from the right when she seeks re-election in 2022. Manchin, the Senate’s most conservative Democrat, is currently slightly ahead in the polls in his own re-election campaign and represents a place that Donald Trump won by more than 40%. His backing Kavanaugh was no surprise.
To say that Brett Kavanaugh is damaged goods as he limps onto the Court is an understatement. Dr Christine Blasey Ford testified in equally credible and compelling fashion about a sexual offence perpetrated decades ago upon her. In assessing her testimony, which was not corroborated in the run-up, in its aftermath or in a truncated FBI investigation, there are two competing circumstantial factors.
First, why would she have waited 36 years to make the allegation, especially as she advanced successfully in her own profession and Brett Kavanaugh served in the White House and was subsequently appointed to the second most powerful court in the US, the District of Columbia Circuit Court of Appeals? Second, why would she come forward now, when an unwelcome and unforgiving spotlight would inevitably be shone on her and her family?
The future of Roe vs Wade
To me, having litigated several “he said, she said” sexual harassment cases as a junior lawyer, the latter question is far more revealing. There is no doubt in my mind that Dr Blasey Ford is a survivor of sexual assault. That she comported herself with such dignity and grace while recounting her disturbing story in a pressurised and subtly unfriendly environment on Capitol Hill is evidence of her character. Some have said Dr Blasey Ford is the real victim here. But she is also a hero.
As for Brett Kavanaugh, much has been made of his performance under questioning from Democratic Senators. He certainly was combative, emotional and downright angry at times. This has been an exceptionally hard time for him and, in particular, for his wife and daughters. Nonetheless, it is not too much to expect a steely, impenetrable resolve from a man who will deliberate over some of America’s most vexed disputes.
Kavanaugh’s conduct – former Attorney General Michael McDowell aptly described it as “unjudicial” – in responding to the interrogation from the membership of the Judiciary Committee, however, pales into comparison with the prepared remarks he delivered that day. His sharp attacks on Democrats were spectacularly inappropriate and lend credence to those critics who contend that he is more a right-wing operative than he is a lawyer or judge. They cast significant aspersions on whether he can sit impartially on any case with a political dimension.
Some commentators posit that this category of cases where Justice Kavanaugh should recuse himself includes any challenge to Roe v Wade. Of course, abortion is the issue that has loomed large in the background ever since Justice Kennedy, the perennial swing vote on the Court, announced his retirement. And it is likely that Brett Kavanaugh will be the fifth vote to overturn the 1973 decision. But he has publicly stated little more than his predecessor nominees: that it is “settled law.”
That said, and while it is something of an aside, the truth is that consigning Roe to the dustbin would not make abortion illegal in the US. Individual states could then legislate for the procedure. Massachusetts would have a very liberal abortion regime; Alabama would severely restrict it.
The now probable end of Roe simply means that abortion will be removed from the constitutional and judicial realm and returned to the purview of democratically elected representatives. Ironically, and although they come at the topic from a very different perspective, this is precisely what those who persuaded the Irish electorate to repeal the 8th Amendment demanded earlier this year.
Leaving aside longer term matters, the immediate political question is what impact the past couple of weeks will have on the mid-term elections that will be held on 6 November? Both history and the polls prior to Dr Blasey Ford’s accusations were made public strongly suggest that Democrats might retake the House of Representatives and have an outside chance of regaining a majority in the Senate.
A referendum on Donald Trump
The polling since indicates that Republicans have been energised by this unseemly episode. Elements of the mainstream American media and virtually all international journalists covering it have not dealt sufficiently with the reality that there are two narratives. Yes, many believe Dr Blasey Ford and will take it out on the party of President Trump. But there are also a considerable number of men and women who do not believe her and think that Brett Kavanaugh has been crucified unfairly.
Whether the latter cohort will mobilise on behalf of his allies in Congress is an open question. Not many voters ultimately tick boxes on ballots because they approve or disapprove of judges. And sage GOP advisers will remember that the last occasion they did was in 1992, shortly after Clarence Thomas took his seat on the Court despite Anita Hill’s charges that he had sexually harassed her. It was the “year of the women” and a great election for Democrats. In 2018, it is all to play for and, even if it is trite to say, turnout will tell the tale.
It should not be lost on anyone that the mid-term elections will inescapably be the first nationwide referendum on Donald Trump. The nomination of Brett Kavanaugh combines with so many other happenings to make one word singularly applicable to this presidency: unprecedented. The first Tuesday of November, come what may, will define the next chapter.
Larry Donnelly is a Boston lawyer, a law lecturer at NUI Galway and a political columnist with TheJournal.ie.
To embed this post, copy the code below on your site
have your say