Substituting the Political for the Legal

Brett Kavanaugh will be present for questioning at a public Senate hearing on Monday, September 24. Without further complications, his confirmation vote should be held shortly after.

As society descends back into into tribalism, we pay no attention to faults amongst our allies, even as we excoriate our enemies for the very same transgressions. Nowhere is this more evident than the #metoo movement. Every politician and commentator would like to pretend that they treat allegations the same across the board, and across the aisle. Unfortunately, the opportunity to wield accusations as partisan sledgehammers is just too tempting.

This isn’t surprising — tribalism is a natural condition for man. Over the course of centuries, Western civilization has worked tirelessly to overcome it. But today’s societal pressures are pulling on our cultural tapestry, causing its ends to fray. Consequentially, we are witnessing the return of past tribal divisions naively thought to have been defeated.

Humans feel an innate, almost biological need to defend fellow members of their in-group, even against behavior they would recognize as wrong had it occurred outside the tribe. In spite of terrible allegations and accompanying evidence, perpetrators can always count on allies to erect the proverbial barricades. This is the root of the cover-ups that have brought shame to Hollywood and the Catholic Church, and of the partisans that defended Roy Moore and Al Franken.

As this like-protects-like mindset grows, appreciation for the rule of law shrinks. Personal judgement becomes subjective, leading to declining desire for impartiality where the stakes are higher — in legal verdicts. People expect differing results based on affinity, but impartial adjudication doesn’t provide them by definition. The result is that the more tribal among us have begun to substitute political cases for legal ones. Those can be tried in the court of public opinion, instead of in the courthouse.

This is what is happening to Brett Kavanaugh. As it stands, the sexual assault accusation leveled against him won’t be enough to prevent his confirmation. That’s not to say that actual evidence or testimony can’t corroborate Dr. Christine Blasey Ford’s accusation. Any accuser is capable of honesty, but they must not all automatically be believed. Currently, her allegation is just that — the classic she-said-he-said. Without any substantiation, most Republicans will see only a partisan smear from Democrats looking to block Kavanaugh, because there is no legal remedy for their woes. But with the accusation, it’s possible that Senators could find Kavanaugh disqualified for the Court, even if Ford won’t achieve victory in a court.

Perhaps Ford is telling the truth (or believes she is) — and for whatever reason — never sought out law enforcement, but now feels it her duty to come forward. Maybe she didn’t want her story to used as political bludgeon — but it’s clearly become one. Dianne Feinstein has made sure of that. There is no other reason to sit idly on these allegations since July. Or not to question Kavanaugh about them in closed or open hearing. Or not to bring them to law enforcement. Senator Feinstein didn’t just wait as long as possible until the confirmation vote — she also got as close to the midterm elections as she could.

This is why Senate Democrats don’t want to hear scheduled testimony this Monday from both individuals involved. They’d prefer the hearing to be on Monday, November 5th. Whether or not Kavanaugh ascends to the Court, they’re counting on this to help toxify the Republican brand. If the GOP isn’t very deferential to a potential victim (as they should be), especially in the current social climate, this could hurt them at the polls. Handling this sugar-glass-delicate situation incorrectly will drive away the swing demographic that are white, suburban women. This group has been steadily drifting away from Republicans as the Trump presidency continues on. In fact, Democrats increasingly have an chance to take control of the Senate. If this happens, Trump has zero chance of seeing any Supreme Court nominee confirmed during the remainder of his term — Democrats’ best possible outcome.

Even with successful confirmation as Associate Justice, Kavanaugh will be damaged goods in the eyes of many Americans. Every majority vote he joins will be considered suspect. We’ve seen this before. Every action taken by Donald Trump is seen as illegitimate by a substantial portion of the citizenry. The Not My President™ crowd sees every presidential act as illicit, citing the technicality that Trump didn’t win the popular vote, or claiming he was installed by a foreign power. Never mind that the former has no standing in American electoral law and the latter hasn’t been proven. As with the executive, now the judiciary. Democrats already believe Merrick Garland’s seat was stolen; this will only add to the poisoned air they see wafting from the Supreme Court.

Assuming no proof of wrongdoing materializes, Brett Kavanaugh must be considered innocent. This isn’t out of cruelty toward his accuser, but simply in accordance with the principle of “innocent until proven guilty” — a foundational bedrock of civil liberty. No contemporaneous medical report exists. No physical evidence. No crime scene. No corroborating witnesses. No date or location. No separate allegations. Without any of this, there couldn’t even have been a legal case in the 1980s. Law enforcement couldn’t investigate, since there was nowhere to begin. On the other hand, the vagueness of the allegations make them harder to dispute. A common misconception is that you can’t prove a negative. You occasionally can — that’s why alibis exist. However, Kavanaugh can’t offer one — such as being on family vacation — because the allegation isn’t specific.

To be exceedingly clear, substantiating information could appear and bolster Ford’s case. But for now, there is only one person’s word, which is a common theme within the world of politics. With nothing else, the confirmation should continue. Even a heavily Democratic Senate confirmed Clarence Thomas after his controversial nomination hearings. The allegations against Kavanaugh are even shakier. Alas, conditions are much more tribal now. We’ve stopped trimming back the encroaching jungle that holds our natural inclinations.



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The DC Hobbyist

Main Street, not K Street. Peering inside the Beltway from outside and to the right. No blind partisanship. No personality cults. A dose of sarcasm.