Ugliness makes sense but it’s still depressing
Joseph Stalin is supposed to have said something like: ‘‘It’s not the people who vote that count, it’s the people who count the votes.’’ Whether those were the precise words he used is subject to debate. If he did say it, however, the point was well made.
To Stalin, voting was fine, as long as it didn’t affect the outcome.
In the United States, they might adopt a similar aphorism for lawmaking and the courts. In theory, Congress passes the laws and the courts uphold them as long as they don’t violate the US constitution. But if the courts decide that the constitution is something without a fixed meaning, then that theory breaks down.
And it has, with the Supreme Court now the legislature of last resort. Because there is no repealing its rulings, it has become a popular avenue for short-circuiting the democratic process. So, in the US, it’s not the lawmakers that rule, but the people who rule on the laws.
This fact is key to understanding the undignified mess that has characterised the latest appointment to the US Supreme Court, where Brett Kavanaugh has been elevated from the Court of Appeals to the Supreme Court. Because of the politicised nature of the US judiciary, this was always going to be something of a brawl. The late making of a sexual misconduct claim against the judge, however, relating to his teenage years, seemed to ignite a powder keg.
Some people seem to be working on a presumption of guilt on the basis of Kavanaugh’s conservative leanings. But there is no way of actually establishing whether Kavanaugh is guilty of the things he has been accused of by Dr Christine Blasey Ford, a childhood acquaintance. All those identified as being at the event have denied knowledge of the claimed events. There are gaps and inconsistencies in the accusations against him. This is not surprising, in many ways, since the accusations are more than three decades old.
Equally, we cannot simply dismiss the allegations. People who have suffered these kinds of things often have good reason not to report them at the time. I have helped people close to me work through a decision about laying a complaint with police. The fact that something is not reported takes away not one ounce of the pain of what has happened. Nor does it detract from the truth of the allegations.
To have denied Kavanaugh the appointment on the basis of an unprovable charge would, from his perspective, seem unfair. However, institutions are meant to be bigger than the people serving them. This is particularly true of courts, which rely on the perception of probity for their legitimacy.
In New Zealand, we get US news through a black and white filter. The Republicans are evil (but cunning) and the Democrats are good (but weak). Those with a less cartoonish view of politics will recognise the unreality of this assumption. And in this case, as in most, there is plenty of shame to go around.
If there were any good faith left in US politics, things could have unfolded very differently. On receiving notice of the complaint, Democrats could have raised the matter with their Republican counterparts instead of waiting to leak it at the latest, and most damaging, moment. The matter could have been looked into discreetly, noting that Ford actually asked for confidentiality.
The Republicans, agreeing the matter was serious, could have sought to have Kavanaugh’s nomination withdrawn with as much dignity as possible. To allow this, the Democrats could have promised to have co-operated in giving a quick hearing to his replacement.
But that was never going to happen. There have been too many acts of bad faith, on both sides, for anybody to trust anybody else on the best of days. And when the stakes are so high? Forget about it.
Kavanaugh has replaced retiring justice Anthony Kennedy. Where Kennedy was a centrist, Kavanaugh is solidly conservative. The appointment creates a 5-4 conservative majority on the court, something Republicans have been working towards for decades.
Adding pressure to all this is the fact that Americans are heading into midterm elections. The Republicans are expected to fare poorly. They may retain the Senate, but their clout may still be diminished to an extent that their ability to approve a new nominee will be in doubt.
So when you consider the prize on offer, the ugliness of the events makes a certain (depressing) sense.
Dame Sian Elias, New Zealand’s chief justice, is due to retire next year. The Government will be considering who her replacement will be. Thankfully, we will be spared the kind of circus that has been on display in the US.
We can thank our non-political courts and the unchallenged supremacy of our elected lawmakers for that. Long may it last.
If there were any good faith left in US politics, things could have unfolded very differently.