What was wrong with the process leading to Brett Kavanaugh’s elevation to the Supreme Court was not its partisan and fractious nature – which is not exactly unknown in such affairs – but the absence of an objective and calming voice of reason.
Whose fault was it, then, that the whole affair became so bitter and unseemly?
I would say Brett Kavanaugh’s for one.
Here was a man, apparently with a record of honourable public service, and proudly on the verge of attaining the highest judicial honour in the land, snarling at his inquisitors like a man being harassed on the street by thugs and charging his opponents – including the Clintons, for pity’s sake – with having organised a campaign against him purely for reasons of political revenge. He may have been provoked. He may arguably have been right. But he is going to be sitting on a bench from which we rightly expect cold, analytical and subjective reason to emanate at all times, whatever the circumstances.
That standard applies to any courtroom at any level, but it must apply to an even greater degree of observance to the Supreme Court, the one institution in the governance of the United States that we expect to rise above the political fray in order to preserve … well, order for one thing, and respect for another. Some would add continuity.
Kavanaugh was not, as he should have been, an impartial observer of the fight for his nomination. He joined the argument with an embittered relish. He was entitled to deny that he had committed a sexual assault during his student years, but he was badly mistaken in ranting about political ‘plots’ to deny his nomination. His demeanour was offensive. He obviously felt he was not so much in a job interview as in a knockabout campaign debate. Whatever he was saying on his own behalf should have been said in a cool, measured and modest way, not yelled across the committee room with snaps and sneers. If he had been in a courtroom, any counsel on the receiving end of such an outburst would have immediately filed for a mistrial.
The second culprit was President Trump, who eagerly fanned the flames, as he is does in all matters, especially those in which his judgement might be questioned. He might have acted in a presidential manner: first, by calling for the two sides to arrive at a conclusion that might at least stand a chance of being labelled a bipartisan agreement; second, by staying above the dispute by saying nothing. Bipartisanship may have been a lost cause by then, but good presidents display effective leadership by raising hopes, however vain they seem to be, not dashing them in a campaign with no other aim but to win political capital.
Like the football coach of yesteryear, to this president winning is not the main thing but the only thing. That means winning absolutely, with some poor sucker on the losing end demeaned and humiliated. No wonder the country is divided. Even if this president had some idea how to unite it he would choose some other path. He is genetically programmed to brawl, and not give up until his opponents are ground into the dirt. He is devoid of empathy. He is utterly lacking in humility.
The Supreme Court, now with five conservative members and four liberals, is as divided as the country. While that is not something that – as a liberal – I welcome, it is something that I can accept. Unlike Trump, I am a good loser. What I expect, though, is that all nine justices will act within the purposes and traditions of that Court – not to grasp a winning position for either side but to reach for that rather old-fashioned and perhaps outmoded condition, consensus. Not for Republican or Democratic causes, for Right or Left, but for the sake of the Union, which was once known, not merely titled, the United States of America.
Kavanaugh’s performance at his hearing does not allow me great expectations. Perhaps the influence of his colleagues on the bench will prove me wrong.
Let justice prevail.