Judge Brett Kavanaugh is now Associate Justice Brett Kavanaugh. But the controversy over his appointment to the Supreme Court will live on for decades. The only good news is that due process and the presumption of innocence lived on to see another day.
The battle over Kavanaugh’s confirmation was, from start to finish, about political control of the Supreme Court. Democrats were incensed by the Republicans’ year-long refusal to act on President Obama’s nomination of Merrick Garland. Donald Trump’s margin of Electoral College victory in the 2016 election was almost certainly a result of his promise to nominate conservatives to the Supreme Court and the lower federal courts. Justice Neil Gorsuch was confirmed with only three Democratic votes. The battle lines were drawn.
Before the Senate Judiciary Committee hearings, and even before Kavanaugh’s nomination was announced, Democrats stood in unison in opposition. For their part, Republicans were equally committed to confirmation come hell or high water. Only a handful of votes were ever in doubt, and those were generally understood to turn on political considerations.
A realist would say that this stark political division over judicial appointments is the way of the future. But even if that proves to be the case, it is worth reflecting on what, besides perceived political control of the courts, was at stake in the final Senate vote.
For most in the #MeToo movement it was about taking accusations of sexual harassment and assault seriously. Then it was about perceived lying, albeit about admittedly trivial things like high school yearbook entries and drinking (or were they sex?) games.
Then, after Kavanaugh emotionally defended himself, it was about judicial demeanor and partisanship (although Kavanaugh had only made clear the partisanship of others). Then, in the absence of any corroborating evidence of the original accusation, it was that the lingering suspicions hanging over the head of a confirmed Justice Kavanaugh would sully the reputation of the highest court in the land.
These were all legitimate concerns, but even sympathetic Republicans could not yield because an even more important value was at stake — the presumption of innocence. That is what decided the matter for Senator Susan Collins of Maine, and should have been decisive for every person committed to due process and equal justice under the law. To withhold confirmation on the basis of uncorroborated accusations, even if one believes Kavanaugh guilty as accused, would have been the most public rejection yet of this fundamental principle of justice and the rule of law.
In their own defense, those intending to vote no on Kavanaugh’s confirmation insisted that the presumption of innocence applies only in a criminal trial — that Kavanaugh was merely in a job interview. But by the time of Dr. Christine Blasey-Ford’s accusation it was no longer a job interview. It was a makeshift trial of a man’s innocence or guilt without even a pretense of due process.
And even if it was only a job interview, due process and the presumption of innocence are not just technical requirements in formal judicial proceedings. They are fundamental values of American culture and constitutionalism.
A rejection of Kavanaugh on the purported basis of uncorroborated accusations, even if the votes were really about politics, would have constituted at the highest levels of American government a rejection of a principle upon which the liberties of every American depend. At the end of the day it was about our commitment as a people to due process and the rule of law. The choice was between politics, passion and practical considerations on the one hand and a most fundamental principle of our democratic republic on the other.
The real tragedy is that this painful choice was ever made necessary. The Senate Judiciary Committee could have investigated the accusation against Kavanaugh in confidence and without compromising Dr. Blasey-Ford’s request for public anonymity. But politics assured that the accusation was leaked and the result was an embarrassing and damaging spectacle of partisanship at the expense of due process.
Given that, Republicans (though many probably out of pure partisanship as well) made the right choice. We have Susan Collins to thank for that.
