Courting doubts

WHY THE KAVANAUGH CASE STILL TROUBLES ME

Irealize I’m dipping into fading memories here. It’s been a long while since the Kavanaugh hearings, maybe as long as a couple of weeks — a full geologic era in the Twitter age. But despite all that has occurred since — Canadian MPs’ end-of-theworld emergency debate on climate change (it got a whole night); Donald Trump calling a former paramour “horse face;” and the all-consuming Jamal Khashoggi crisis — it may be vaguely recalled that for six or seven days the world turned only on Brett Kavanaugh and how much he loved beer and frat parties, and allegedly sexually assaulted a young woman when at university.

I’m probably alone in this, but there are still aspects of that now-forgotten moment that perplex me. Not the least of which is how matters that were allconsuming in the Western world for a while simply evaporated from the public agenda. Who talks of Kavanaugh and Christine Blasey Ford now? Two matters in particular are troubling: the strange bend of the hearings, and what they said of the nature and essence of the U.S. Supreme Court itself.

It was distressing from the very first to see how automatically Blasey Ford was acknowledged, it seemed almost universally, as credible. I simply didn’t understand that, and never for a moment subscribed to the ludicrous and banal slogan of “Believe the Victim” — a classic example of the lexicon’s most misunderstood phrase, begging the question.

On any common-sense plane the allegation was incredible. What was credible about an alleged event from 3½ decades ago, brought up during the most critical moment of the most important appointment to the United States Supreme Court? Surely the story was, as the lawyers like to say, prima facie suspicious. How convenient that memory “returns” after 36 years just in time to potentially sink a Supreme Court nominee?

It was a curious recall, too, something that had been forgotten or submerged in the accuser’s unconsciousness (a dubious psychological phenomenon in itself) till a marriage therapy session some 30 years after the event flushed it out. Or so we were told. What was credible about Blasey Ford notifying Congress members of the alleged assault as the hearings unfolded, while insisting she wanted to be kept out of the controversy that would inevitably follow? What was credible about knowing nothing except that “it happened?” Or being without any recollection of where or when? And, what was credible about absolutely no corroboration whatsoever, that stood up, for the charge?

Finally, on this point, what was credible, especially in this highly charged political context, about not investigating Blasey Ford as scrupulously as Kavanaugh? A false accusation of sexual assault, to any fair mind, is an extremely vicious action, and calls for equal scruple in its investigation. What was credible about all the accommodations to the “victim’s” alleged pain, even to the extreme of the committee members abdicating their responsibility to question her, and turning that function over to an outside female? Is this a new congressional standard, that only females may question females? Is there a new gender rule along with the new pronouns these days?

Things are just as troubling about the aftermath of the huge storm. By which I mean the utter absence of an aftermath. Blasey Ford’s recollections were not Kavanaugh’s only trial. He was also multiply accused; of exhibiting his penis, a rape on a yacht, and most exuberantly, of setting up at least 10 gang-rape parties, spiking punch to put female teenagers at the disposal of a conga line of raping males and (this was not quite as definite) of being one of the train himself.

Now, there was a charge. I do not think that in the entire history of the republic to our south any politician or judge has been called up to answer so severe an imputation, or been accused of such depravity. Why has there been no followup investigations on any of these charges? Are citizens permitted to toss slanderous hand grenades into the process of selection for a nation’s highest court, to pollute the process and destroy a person’s reputation, set off a political and media frenzy, and then calmly, insouciantly, walk off the stage at their own convenience? How can such immense charges simply “melt into the air?” It’s as if the hearings were just a play where nothing lingers after the curtain comes down, as if what everyone was watching had no reallife consequences after the last act — the vote. Well, it wasn’t a play.

If the charges were empty or false or purely politically malicious, should there not be new charges against those who insolently inserted themselves into the process? Why no penalties for false or malicious interference? Even Blasey Ford, whose allegations, compared to these others, were the least serious, has now decided — she’s decided — that this is enough and she wants no more of it. Should she be the one deciding if there’s no followup? In Star Wars-ese: The mind, it boggles it does.

Far more significantly, these hearings have demonstrated a terrible truth about the U.S. Supreme Court itself: It’s not a court at all.

Consider. It is apparently perfectly understood that if a person is nominated by one party, his or her rulings will mechanically always favour that party. Which is either true or not true. And which is why the hearings were such a tumult. And if true — which is the far more likely assumption — that reduces the Supreme Court from an assembly of highprincipled and open-minded sages, divining the principles of and preserving the balances of the great American democracy, to nine men and women robotically pulling a lever every time for their side.

Given that the absolute essence of judicial determination is utter neutrality — “Justice is blind” is the oldest and strongest of axioms — how can this be? If judicial outcomes are inexorably a function of partisan orientation, why bother with the nuisance and expense of trials, the submissions and briefs, the arguments and interventions? Tally the judges nominated by Democratic administrations, tally the judges nominated by Republican administrations, and the side with the higher number wins. Replace the United States Supreme Court with two rows of red and blue jelly beans, and do a count before every case.

What the hearings with their brutality and intensity demonstrated beyond question is that the court is political — before all else. It is judicial only by convention of usage.

The most important question of the most recent presidential campaign was this: Will it be Hillary’s court or Donald’s? As before it was, will it be Obama’s or Romney’s, and before that, Clinton’s or Bob Dole’s? Which means it really is not a court at all. It is a partisan entourage. And that’s sad.

HEARINGS DEMONSTRATED A TERRIBLE TRUTH ABOUT THE U.S. SUPREME COURT ITSELF: IT’S NOT A COURT AT ALL.