This might be an enduring achievement of the Trump Presidency: after less than two years in office, US President Donald Trump has been able to get a second Justice appointed to the US Supreme Court’s bench – this time filling a post vacated through the resignation of ultra-liberal Justice Anthony Kennedy by a judge with conservative credentials. There is hope that this could shift the supreme judicial instance in the US, which has a strong influence on judicial developments also in Europe, back to sanity.
We will never know whether allegations that Kavanaugh attempted to rape Christine Blasey Ford at a teenage party back in 1982, when she was 15 and he was 17 years old are true or not. The allegation, which was made public at a very late stage of the procedure, has not been proven, and – by its very nature – it was probably never meant to be proven. It could indeed be true – but then it could also be true (and indeed seems more plausible) that this was simply a carefully planned hit job.
This is the perfect character assassination strategy: to make an allegation that is too imprecise to allow for verification. Mrs. Ford did not indicate the day on which the alleged rape attempt supposedly took place. Nor did she indicate the precise location where the party took place, or the name of the person who organized the party. Thus, it was impossible for the accused to come up with an alibi: no, I was not at that party, on that evening, in that house. She did name some supposed witnesses – but none of these remembered the incident. The only witness who could have positively confirmed the accusation was a man, Mark Judge, whom Mrs. Ford accused to have been complicit in the attempted rape, and who would thus have had to inculpate himself – which of course he didn’t. Had this been a trial before a law court, Mrs. Ford would without any doubt have been laughed out of the courtroom for even daring to come up with such a flimsy story. However, given that this was a Senate confirmation hearing, the objective never was to prove Mr. Kavanaugh’s guilt, but simply to tarnish his character. And of course, all the Senate Democrats, and the mainstream media supporting them, all wanted the allegation to be true. They were determined to believe it as long as it was not disproven – which, given their unspecific nature, was not possible.
And how could one not notice that although Senator Diane Feinstein, a politician with a long track record of character assassination tactics, had been in possession of Mrs. Ford’s allegations already several months earlier, she did not make them public when it was time, but only, quite conveniently, after the official Senate hearings – the perfect timing to derail the confirmation process until after the midterm elections in which the Democrats hoped to overturn the current Republican majority in the Senate. In the end, it was fairly obvious that the Democrats, hoping for favourable election results, just wanted to buy time.
Semper aliquid haeret – something will always stick. A story does not need to be true to tarnish a man’s reputation. Mrs. Ford may not have been able to prove her allegations, but she didn’t need to: from now on until the end of his life Mr. Kavanaugh will remain “the man who has been credibly accused of a rape attempt” – the game plan being that henceforward it shall be sufficient to sling an accusation that by its very nature can neither be proven nor disproven at any nominee to sink his candidature. This would mean that any candidature could be destroyed at will.
And when it turned out that the allegation was too unsubstantiated to be credible, the next allegation was that Kavanaugh’s highly emotional self-defence before the Senate’s judicial committee, in which he qualified the accusations as a defamation campaign by radical Democrats to prevent his confirmation at all cost, was not sufficiently “dignified”. Can such a man be allowed to sit on the country’s supreme judicial bench? Can he be expected to be a neutral judge in matters that oppose conservatives and liberals?
Probably not. Having been the victim of a politically driven smear campaign like this, it is indeed difficult to imagine that henceforward Kavanaugh will view the ideological stances of the Democratic Party with neutrality. But for this the Democrats will also have to blame themselves. Kavanaugh might have reasonably been expected to be a fair judge within the remits of his own stated legal philosophy, which makes the US Constitution rather than social trends the basis of all judgments. However, having been the target of what clearly looks like a concerted and carefully planned character assassination, it is hardly likely that Kavanaugh will easily forget about who accused him, and what may have been their underlying political/ideological motivations.
One thing is obvious: this was never about Mr. Kavanaugh as a person. It was clear from the outset that the Democrats wanted to prevent at all costs the appointment of any judge who could be expected to durably shift the majority within the Supreme Court on matters such as abortion, sodo-“marriage”, or other culture war issues. There is every reason to doubt that they would have treated any other nominee (except one with a clear pro-abortion and pro-sodomy record) any better than they treated Mr. Kavanaugh, and it is clearly not beneath them to resort to slander and character assassination campaigns if nothing else will help. The cases of Robert Bork and Clarence Thomas (although the latter was, like Kavanaugh, ultimately confirmed) provide ample evidence that character assassination attempts are by now standard procedure.
Will Judge Kavanaugh’s appointment as an Associate Justice damage the standing of the Supreme Court? Without doubt. But the Democrats should not lament this: they have been slinging mud, and it is hypocritical for them to deplore, with crocodile’s tears in their eyes, that the person they have been slinging mud at is now muddy. What else did they expect? Is the reputational damage of the Supreme Court not imputable rather to them than to Judge Kavanaugh?
Besides, the withdrawal of his nomination would have inflicted equal damage: it would have set an ugly precedent that any appointment can easily be derailed by the mud-slinging strategy that the Democrats have been seen to use not for the first time. In fact, the Court’s credibility as a neutral and impartial arbiter stands in question since (at least) the Roe v. Wade judgment which fabricated a “Right to Abortion” that the Constitution in fact does not contain, and has since then been further damaged by a long series of similarly activist decisions on abortion, LGBT-“Rights”, and similar issues. The Supreme Court is now the supreme legislative body of the United States, more powerful than both the President and Congress. But the price that the Court is now paying for its self-aggrandizement is that nobody is still believing in it as an impartial judicial body, and the appointment process has been totally politicised. Democrats have jeered at the Obergefell and Windsor decisions, which on the basis of absurd legal “grounds” made the recognition of sodo-“marriages” compulsory in all 50 US States – but it will be seen how they react to decisions that are not to their liking. The ugly scenes at the Senate during the final confirmation vote provide a sombre forecast of the Democrat’s unwillingness to accept defeat with dignity.
It could even be that the Supreme Court’s reckless “landmark decisions” on sodo-“marriage” were decisive in bringing President Donald Trump into office. As from that moment, the nomination of “conservative” judges (i.e., judges that actually apply the law rather than indulging in the role of self-appointed law-givers) was a top priority for Republican voters. As a candidate, Donald Trump made some very important pledges in this regard – and, whatever one may think of him as a person, he has delivered spectacularly. Can one be surprised that Republicans are now highly motivated to confirm him in his office, and to make sure that GOP remains in control of both Houses? It will be very interesting to watch the outcome of the midterm elections. The Kavanaugh appointment, as well as his recently concluded trade deals surely have given Trump a boost.
For the Democrats, by contrast, it is highest time to reconsider their strategic outlook. They need to learn the role of a constructive opposition: it is not sufficient for them to vilify the sitting President and to go after his scalp; instead, they need to show that they have the better policies. It is not sufficient to dwell on LGBT and abortion as their defining issues, but instead they need to develop an offer for non-radicals. As long as they focus on sexual “culture wars” and keep using Alinskyite tactics, they will keep losing elections.