I will freely admit that when I first heard that Christine Blasey Ford was demanding an FBI investigation of her allegations against Brett Kavanaugh, I was indignant. After all, SHE was the one who raised the subject of sexual assault in the first place, and at the last minute. The Senate Judiciary Committee gave her the opportunity to speak and air her accusations in public and instead of readily accepting the invitation, here she was making further demands. I thought this was impertinent and that if she wanted the FBI to dig in and search for some "cosmic truth", FINE, then the Committee could just go ahead and schedule a straight up and down vote on confirmation and that would be that.
But when I started to think about it, I realized that all this hullabaloo was about whether Brett Kavanaugh should be afforded the opportunity to serve as a Supreme Court justice for life. And this got me to thinking more in terms of the Constitution itself and not so much about politics or personality. The Constitution guarantees every one of our citizens the right to due process under the law through the 5th and 14th Amendments. That being the case, then the REAL question had to revolve around just what exactly due process was supposed to be about. In the 1934 case of Snyder v. Massachusetts, the Court ruled that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.".
It seems to me the key words in that decision are "offends some principle of justice" and ultimately it all comes down to the word justice. In the case of the scheduled hearing on Dr. Ford's accusations, the question arises about the treatment of Dr. Ford by the Republican majority, whether it does indeed offend some principle of justice. I think it does. It appears to me that Senator Grassley and his Republican cohorts are prepared to grant Dr. Ford a cursory hearing before a hostile, all-male majority that has already made up its mind. To my way of thinking, this may well be process but it's hardly DUE process.
I think what this hearing is all about isn't justice, it's vindication. What the Republican majority wants to do is to cast as much doubt as they can on Dr. Ford's version of the narrative so as to feel vindicated when they vote in favor of Judge Kavanaugh's confirmation. While vindication may seem to be a sufficient excuse for voting for the confirmation of some assistant Cabinet secretary, it hardly seems enough for confirmation to the highest court in the land. Rather than settling for mere vindication, it seems to me the Senate Judiciary Committee ought to be seeking justice.
Of course, BOTH parties are entitled to a just outcome. But this confirmation vote goes far beyond Christine Blasey Ford and Brett Kavanaugh. In this case it's the American people who deserve a just outcome. While it is true that we don't have as much at stake personally and professionally as the two principles, nevertheless we are entitled to a Supreme Court that is not burdened with the shadow of doubt that will be cast over Judge Kavanaugh's confirmation should it appear to have been arrived at unfairly and unjustly.
The Supreme Court is the final arbiter of justice in this country. The power of the Supreme Court doesn't rely on its institutional power because it doesn't HAVE much in the way of institutional power. It doesn't have an army and it doesn't have a police force. Its reputation for fairness and judicial probity is what gives the Court its ultimate authority. How can we rely on the Court's fairness and probity if one of its members has a serious accusation hanging over his head? The answer, of course, is that we can't.
This is not about politics or judicial philosophy. It's about the ultimate integrity of the Supreme Court itself. It's not as if we're voting on Brett Kavanaugh to be a ward committeeman in the city of Chicago. He will have the power to shape the meaning and direction of the entire American judicial system. He should not be viewed as a reliable Republican vote on a tremendously politicized Supreme Court. He will be much more than that. And neither should the Supreme Court appear to be an extension of the Republican National Committee. The statue of Justice in front of most courtrooms in this country in blindfolded and is blindfolded for a reason. The reason for this is that, at least in theory, justice should be blind. When we lose faith in the integrity and character of the Court we rob the Court of its ultimate authority. THAT is what is at stake in the Kavanaugh confirmation and I suggest to Senator Grassley and his Republican colleagues that they NOT lose sight of that!
Filed under: Politics