The pundits wax long about what procedures are "fair" for questioning Brett Kavanaugh, and how best to pillory his accuser. Should there be "due process" in Senate confirmation hearings? What is proper senatorial due process: for a nominee; for a witness, for The People?
While pundits fill hours of distraction with such questions, what of the substance of the whole business? What is the Senate's Constitutional role in providing "Advice and consent" in the appointment of Supreme Court Justices?
The Senate is not a Court of Law, with legal procedures for examining witnesses, presenting evidence, and cross-examining, to search for the truth. As their zeal for profitable war investments made clear during the Cheney/Bush administration, truth is often something senators want to conceal, rather than find. Senator Grassley's announcement that he and his Republican pals on the Judiciary Committee were not going to allow an FBI investigation of sex abuse allegations, or allow any witnesses other than the accuser and the nominee to testify, made clear that truth is, again, something to be feared and hidden.
This situation is not Anita Hill redux. When Clarence Thomas was nominated, a large percentage of interested people were willing to believe that Anita Hill, rather than Clarence Thomas was lying. But only days after Professor Blasey-Ford came out, even the rightwing blogosphere seems to be acknowledging that she's telling the truth. Their task is now to discount the importance of Kavanaugh's attack on her, at least long enough to get him onto the bench.
Anita Hill had to fight to rebuild her reputation. Professor Blasey-Ford will emerge from this nomination fight with a stronger reputation than she started with. Although Kavanaugh will probably be confirmed to the Court, his reputation has already been destroyed and has no place to go but further down.
If Kavanaugh were honest about his history, would the proper response to the current accusation be his strident denial, or would it be an acknowledgment that he had times of conduct that he cannot remember, and that an unremembered event could have occurred?
None of that addresses what the Senate should be doing. There is no Constitutional definition for "Advice and Consent." Black's Law Dictionary doesn't even have an entry for the phrase. But we have Constitutional context for it. The president is supposed to appoint justices to the Supreme Court. The same section of the Constitution, Art. II, sec. 2, deals with appointments of ambassadors, cabinet officers and others who are essential to the government running well and effectively. So it must mean that the Senate is supposed to help the president select people who are qualified to do the jobs to which they are nominated.
What do we know about Brett Kavanaugh's thinking about the role of a judge, and is that thinking appropriate for a justice of the highest court in the nation?
We know for a certainty that Brett Kavanaugh believes that lying, even under oath, is okay when it is done to achieve a personal goal. Thus, we have seen documentation that directly contradict's Kavanaugh's testimony about his role in the Cheney/Bush White House and the selection of appointees. The documents that prove his perjury were released by the current administration, even as they held back millions of pages of "worse" documents.
The released documents proved that he lied about his political work at the White House. That might be understandable—he was a political operative, and he now wants to be a partisan "justice." But there is another lie that gives us clearer insight into his soul. Kavanaugh was a clerk to 9th Circuit Court of Appeal Justice Alex Kozinski. Kozinski retired from the Court after it became public knowledge that he was a constant sexual predator in the chambers of a United States Federal Court of Appeals.
Part of Kozinski's behavior included maintaining an email list of people with whom he shared sexually abusive jokes and stories. Judicial clerks are famously close to their Judges. Kavanaugh considered Kozinski one of his mentors. Yet he now claims that he was unaware of the sexual harassment in which Kozinski routinely engaged, and which other clerks discussed. He claims that he was unaware of the infamous email list.
If the Senate Judiciary Committee actually wanted any investigation of the present controversy, they could easily ask the FBI to produce a copy of the email list that was part of the evidence that got Kozinski to retire from the Court. That list would show that Kavanaugh was or was not a participant.
Regardless of that email list that Senator Grassley and his Republican colleagues don't want to review, Kavanaugh's denial that he knew what every other clerk and secretary in the 9th Circuit Court knew reveals a man who will not accept the truth when it is not to his benefit.
Is that the proper character for a Supreme Court Justice? Is the Senate's Advice to the president that that sort of human character is what we want on our highest Court?
Another of Kavanaugh's mentors was Anthony Kennedy. Kennedy is a hero to many in the LGBTQ community, because he so forthrightly wrote that members of that community (those communities?) should be afforded equal rights with other white people. Kennedy may be less fondly remembered by non-white people, as he seemed unable to vote for their rights. He missed no opportunity to vote against minority rights other than LGBTQ rights. We would still have an effective Voting Rights Act except for Kennedy's vote to destroy it, after even mainstream Republicans in congress voted to renew the Act. Kavanaugh has praised Kennedy as a mentor. He has not been asked if he shares Kennedy's racism.
But he has ruled so as to show us where he stands. When a Latinx girl was placed in custody of ICE, and wanted to obtain an abortion for a pregnancy she didn't want, the Texas Court system said that under Texas law, she was entitled to the abortion. But anti-immigrant activists asked the Federal Court to block the abortion. Kavanaugh wrote an opinion which expressly ignored facts that were in the case record, in order to conclude that the girl should be forced to carry the pregnancy to term. Kavanaugh lost that argument and the girl obtained a safe, medically overseen abortion.
If that under age child had been forced, as Kavanaugh wanted, to have the child, she would have spent decades raising the child, decades in which her life would have been greatly affected by a man who was willing to ignore facts in the record to impose on that girl HIS personal wishes.
Is that the sort of man we want on our nation's highest court—a man who will ignore unwelcome parts of case evidence to achieve his own goals?
Many rightwing pundits lament the consequences of taking a 36-year-old attempted rape complaint seriously. Look how that accusation will affect this man's life, they demand. But not one of them yet has spoken about how Kavanaugh wanted to affect the life of an underage child who was carrying a fetus that she didn't want.
I agree with many people who have said that things done by children, including teens, should not rule the children's lives for all time. We know that Kavanaugh was a teen in an environment which encouraged wanton drunkenness and drunken behavior. I have no problem imagining that Kavanaugh was often too drunk to know what he was doing.
But he is not drunk now. IF he were honest about his history, would the proper response to the current accusation be his strident denial, or would it be an acknowledgment that he had times of conduct that he cannot remember, and that an unremembered event could have occurred? Would people accept such an acknowledgment, especially if paired with a sincere apology to another teen, now adult, who does remember being victimized?
Which would make a better justice for our highest court, a man who can't remember and so denies, or a man who acknowledges youthful misconduct, and has learned from it, and become a better person from that learning?
Kavanaugh presents us with a clear contrast with another American politician. Ku Klux Klan member Robert Byrd, who grew, learned and became Senator Robert Byrd, using his office to right some of the wrongs of his previous beliefs. Kavanaugh seems eager to use his new position to continue the wrongs of his previous beliefs.