‘His appointment became a symbol of every woman’s worst nightmare’
Dr Cherrie Short looks at the politicisation of justice
IN JULY of 2018, US President Trump chose Brett Kavanaugh, a conservative judge from Washington DC, to replace Justice Anthony Kennedy on the US Supreme Court.
Kavanaugh was appointed to the United States Court of Appeals for the DC circuit in 2006 by former President George W Bush. He quickly gained a reputation as a staunch conservative, often siding with the right on issues like abortion and healthcare.
If you’ve been following the news at all, you’ll know that it wasn’t long after President Trump nominated Kavanaugh that he was confronted with allegations of sexual misconduct.
Professor Christine Blasey Ford testified at a Senate Judiciary Committee hearing that Kavanaugh had pinned her to a bed, groped her, and attempted to remove her clothing when they were in high school together. She was 15 at the time of the alleged assault; he was 17.
Two more women came forward with accusations when Kavanaugh was in college, claiming he either “exposed himself”, was present during dormitory gang rapes, or attempted to drug girls so that they could be easily raped by a group of men.
As the allegations quickly spread through the media, many Democrats posted tweets about being disgusted that such a man could be considered for the Supreme Court, while many Republicans continued to defend him. Kavanaugh maintained his innocence, and Trump continued to give Kavanaugh his support.
The US Supreme Court is the most powerful judicial body in the country with the authority to interpret the US Constitution and provide judicial review of acts of the Congress. The justices hold decision-making power over issues like gay marriage, access to healthcare, gun rights, property rights, presidential investigations, and even climate change agreements. The Supreme Court voted to legalise abortion in 1973 and to integrate public schools in 1954.
There are nine justices, led by the Chief Justice of the United States. The federal judges must first be nominated by the President and appointed with the advice and consent of the Senate.
On October 7, 2018, Brett Kavanaugh was sworn in as America’s 114th Supreme Court justice, following a short investigation and a personal testimony.
For many across the US, his appointment became a symbol of every woman’s worst nightmare. Some expressed shock over how this could actually happen. When the allegations first went public, many felt it was enough to not confirm his nomination, and watching him join the most powerful court in the land after such serious allegations was beyond understanding. Many are concerned that his appointment will only further disenfranchise women who are victims of sexual assault, and generally provide legal judgments that reinforce a system of inequality and oppression.
Yet beyond the issue of alleged sexual assault, Kavanaugh exhibited two other disqualifying behaviours during the Senate hearings. In a prepared statement, Kavanaugh gave an angry, highly partisan, and defiant presentation that attacked the Clintons and blamed Democratic Party money for the accusations against him. This statement completely contradicted his earlier claims to judicial impartiality and to considering all issues before the court purely on legal precedent and constitutional law.
Second, when asked about his drinking habits in high school and college, Kavanaugh repeatedly denied any heavy or binge drinking, which contradicted several witnesses’ accounts of his drinking behaviour during this period of his life.
Tragically, the extreme partisan polarisation over his nomination and his outburst of defiant partisanship during the hearings will only serve to further politicise the Supreme Court, thus damaging the credibility of the institution and potentially undermining the rule of law in the years ahead.
This major American political controversy over Kavanaugh’s appointment has important implications for the Supreme Court in the UK as well. A report by the human rights organisation Justice shows that over the court’s entire history through 2017 there had been only one women member among the 12 justices and all the rest have been privileged white males. Fortunately, over the past year, two more women have been appointed, bringing the total female justices today to three of 12.
Yet the total lack of ethnic and social-economic diversity continues, which clearly does not reflect the makeup of the nation and risks undermining the legitimacy of the highest court and the rule of law in England and Wales.
While UK citizens may be appalled by the growing extreme politicisation of the US Supreme Court and its nomination and confirmation processes, we should look to our own UK Supreme Court and work to assure the kind of administration of justice in England and Wales that promotes justice for all, not a privileged few.
■ Dr Short, a former Race Equality Commissioner for Wales, is now associate dean of Global and Community Initiatives and professor of practice at USC Suzanne Dworak School of Social Work in Los Angeles, California.