Had Judge Kavanaugh been rejected on ideological or professional grounds before these sordid accusations were leveled, he could go back to his life, as Robert Bork did. But if the Senate fails to confirm him now, his life will never be the same.
Some would argue that if Judge Kavanaugh is now confirmed in the face of these serious accusations, it will have an equally damaging effect on the life, reputation, and credibility of his accusers. That is false. Even if he is confirmed, those accusers will be treated as heroes by the many people who believe them. It will not have close to the impact on them that a failure to be confirmed will have on Judge Kavanaugh. The best evidence of that is Anita Hill, who has gone on to a distinguished career as an academic, writer, commentator, and feminist. The stakes are simply not comparable.
I don’t know whether Judge Kavanaugh is guilty, innocent, or somewhere in between. I don’t know whether he told the truth, the whole truth, and nothing but the truth. Judge Kavanaugh wouldn’t have been my candidate of choice for the Supreme Court. I am a liberal Democrat who believes Republicans improperly denied Judge Merrick Garland a seat on the high court.
But this is no longer about who would make the best Supreme Court justice. It is about the most fundamental issues of fairness this country has faced since the McCarthy era, when innocent people were accused of trying to overthrow the government and had their lives ruined based on false accusations while being denied all semblance of due process or fairness. The American Civil Liberties Union stood strong against McCarthyism by demanding due process and hard evidence. But the ACLU now argues that “unresolved questions regarding credible allegations of sexual assault” be resolved against the accused nominee.
We have come a long way since McCarthyism, but we now live in an age that risks a new form of sexual McCarthyism. We must not go to that even darker place. The best way of assuring that we don’t is to accord every person regardless of his status the kind of fundamental fairness we would expect for ourselves if we were accused.
What If Kavanaugh Were a Liberal Muslim Accused of Terrorism?28
As a law professor for half a century, I tested the consistency and strength of my students’ arguments by constructing thought experiments in the form of challenging hypothetical cases—we called them hypos. So let’s construct one to test the arguments being offered in the Kavanaugh case.
A thought experiment: President Hillary Clinton nominates the first Muslim American to the Supreme Court. Let’s call him Amir Hassan. Republicans oppose him and accuse him of being a judicial activist. Then several witnesses place him at a mosque at which terrorism was advocated. He claims he went there to hear all sides of the issue. One witness places him in a terrorism training camp but that account is not corroborated. One final witness identifies him as the man who planted the bomb that blew off his leg at a demonstration. He categorically denies any association with terrorism.
How would the Senate, the media, American Civil Liberties Union (ACLU), and the public deal with these accusations?
The answer seems clear: the sides and arguments would be largely reversed. The shoe would be on the other foot and the hypocrisy of double standards would be exposed for all to see.
Surely the ACLU would not be arguing, as they have in the Kavanaugh case, that doubts should be resolved in favor of guilt. Radicals would not be insisting that terrorism survivors must always be believed as to identification. My left-wing colleagues would not point to the anger displayed by the possibly falsely accused nominee as proof of his disqualifying injudicious temperament.
To the contrary, the ACLU would be demanding due process, a presumption of innocence, and a high burden of proof before so serious a charge could destroy a life, a family, and a career. My colleagues would be defending the righteous anger of a falsely accused victim of ethnic prejudice.
The identity politics accusations would not be directed against old white men, but rather against those who would stereotype Muslims as terrorists. The Jewish Forward would not be featuring an article entitled “Is Amir Hassan every Muslim man?” as it is now featuring an article entitled “Is Brett Kavanaugh every American man?”
Many right-wing Republicans would now be making arguments similar to those being made by their left-wing Democratic colleagues in the Kavanaugh case. This is just a job interview, not a trial. Believe terrorism survivors. There is no burden of proof; mere suspicion is enough to deny a possible terrorist a lifetime appointment to the Supreme Court. Look how angry he is, demonstrating a lack of judicial temperament.
Hypocrisy is the coin of partisanship. It affects both sides. It may be better than simply not even caring whether people think you’re being fair. As Francois de La Rochefoucauld once put it: “Hypocrisy is the homage vice pays to virtue.”
It is precisely because of the pervasiveness and apparent acceptance of hypocrisy that I insist on applying the shoe on the other foot test to all aspects of politics, law, morality, and lives. It drives my colleagues and friends crazy when I challenge them to pass the test. Few are willing to take it. Even fewer pass it.
Applying that test to the Kavanaugh case doesn’t provide a perfect resolution. But it does supply some guiding principles. Ask yourself what you would be thinking and saying about my Muslim American hypothetical thought experiment. One’s first instinct is to try to distinguish the cases: rape is not like terrorism; stereotyping a Muslim American as a terrorist is different than stereotyping a privileged white man as a rapist; rape survivors are more reliable witnesses than terrorism survivors; the burden of proof should be higher for proving terrorism than rape.
None of these distinctions are compelling in the context of a Supreme Court confirmation process. They are makeweights designed to weaken the force of the shoe on the other foot test and to justify the hypocrisy of shifting arguments when it is your ox that is being gored.
So now back to Kavanaugh. The test for him should be the test that would have been demanded had the first Muslim American been nominated to the Supreme Court by a Democratic president and been accused of engaging in terrorism as a seventeen-year-old.
A full investigation, a fair process of judgment, no presumption of truth telling by alleged victims, no presumption of guilt against the nominee because he has so much to lose, a standard of guilt that varies with the seriousness of the accusations, and no identity political stereotypes as substitutes for hard evidence. These and other neutral rules should be applied to this case and every case going forward. Only then could we be confident in the fairness of the outcome.
No One Won During the Brett Kavanaugh Confirmation29
When the votes have been counted and Brett Kavanaugh has been confirmed to serve on the Supreme Court, one conclusion will be clear: no one won.
One wonders how Brett Kavanaugh would now answer the following question: If you had it to do over again, would you rather never have been nominated, not having been accused of serious sex crimes, and continue to serve on the DC Circuit? Or would you do it all over again, knowing the outcome? I don’t know how he would answer the question, but it would not be self-evident.
Clarence Thomas has served on the Supreme Court after a bruising confirmation fight, but the accusations against him were far less serious than those directed against Kavanaugh. Despite his narrow confirmation victory, he did not win: his reputation remains in tatters and he will probably not be allowed to continue to teach at Harvard.
The same question could be put to Dr. Christine Blasey Ford: Knowing what she now knows, would she have gone public with her accusations and endured the scorn, mockery and attacks, including from President Donald Trump? I suspect her answer would be yes, despite the fact that she did not succeed in defeating Kavanaugh’s nomination. But one cannot be certain, especially in light of the fact that she did not intend for these accusations to become public until it became clear to her that the media was on to the story. So she didn’t win.
The Democratic senators, many of whom came out against the nominatio
n as soon as it was made but then doubled down following the sexual accusations, came off looking partisan, petty, and oblivious to the civil liberties and due process considerations at stake in this case. They did not win.
The Republican senators seemed desperate to rush the case to a vote in order to sit Kavanaugh on the Court before the midterm elections. They appeared to be more interested in political gain than truth, and their decision to hire a special counsel to question the witnesses backfired badly both legally and politically. Despite the narrow vote in support of the nomination, the Republicans did not win.
The ACLU has lost whatever shred of credibility it still had, following its abandonment of its principles in the interest of funding from leftists who couldn’t care less about neutral civil liberties. Its insistence that suspicion of sexual wrongdoing was enough in the confirmation battle to put it on the wrong side of our basic rights. The ACLU has won financially but has lost its way.
The media, as has become typical, divided into roaring camps, one of which argued that Kavanaugh could do no wrong while the other argued that he could do no right. A handful of journalists reflected the complexity and nuance of the situation facing the senate, but they were rare. Much of the media lost its credibility.
Another big loser is the #MeToo movement, some of whose leaders have overstated its case by denying the possibility that some women willfully lie in a calculated manner in order to gain material benefits including money, fame, and revenge. Michael Avenatti’s decision to publicize the highly questionable claims of gang rape made by his client, Julie Swetnick, has done enormous damage to the movement. There is no compelling evidence that Swetnick—who is two years older than Kavanaugh, lived in a different neighborhood, and traveled in different social circles—ever even laid eyes on Kavanaugh. She blatantly contradicted her sworn statement in a television interview in which she changed the facts dramatically.
It is certainly possible, though we may never know, that she simply made up the story of whole cloth. Yet radical #MeToo’ers have demanded that we accord her the same credibility that we appropriately afforded Professor Ford because “survivors don’t lie.” Some, of course, do. Some are not survivors at all. Others may have survived sex assaults but not by the person they accuse. There is no sex-linked gene for telling the truth or lying. The credibility of the #MeToo movement has suffered a loss.
But the biggest losers were, of course, the American people and the future of the nomination and confirmation processes as spelled out in our Constitution. The Framers never intended this kind of a media circus with partisanship trumping principle. The upshot will be that fewer qualified candidates will allow their names to be put forward if they know that by doing so their high school actions will be examined, their yearbook entries scrutinized, and their reputations subjected to search and destroy missions. This means that we have all lost.
So what have we learned from this debacle? That the process of nominating and confirming justices has become flawed beyond immediate repair. We need to change the process. I recommend that the executive, legislative, and judicial branches appoint a blue-ribbon commission to look into new ways, consistent with the broad outlines of the Constitution, to nominate and confirm judges, especially justices. More investigation should be done before the nomination is made, and a process for ongoing and discreet investigation should be established to assure there are few surprises. The system will never be perfect, but we can do better. Everybody lost this time. We must not repeat our mistakes.
Should Kavanaugh Be Stopped from Teaching at Harvard Law School?30
Now that Brett Kavanaugh’s nomination to the Supreme Court has been confirmed, many law students are demanding that he be punished by ending his teaching career at Harvard Law School.
This effort reminds me of the time when I was a student in Brooklyn College in the 1950s, witnessing professors who were fired because it was suspected they might have been communists years earlier. It didn’t matter whether they were innocent or guilty. Being suspected was enough to make them unsuitable to teach students, especially if they had pleaded the Fifth Amendment or angrily condemned the Un-American Activities Committees of Congress.
Now, flash forward sixty-five years as Harvard Law students and some faculty demand that Kavanaugh, who had taught with distinction since 2008, no longer be allowed to do what he loves and what many students loved. When Kavanaugh was nominated to the Supreme Court, Harvard Law School was exuberant in its praise of his teaching. Dean John Manning thanked Kavanaugh for his “superb teaching” and “generosity, dedication, and collegiality he has shown our community.” A group of more than eighty former students sent a letter to the Senate Judiciary Committee, attesting that “[we] may have differing views on political issues surrounding the confirmation process, but we all agree on one thing: Judge Kavanaugh is a rigorous thinker, a devoted teacher, and a gracious person.”
After the accusations of sexual assault emerged, “hundreds of Harvard Law Students walked out of class … to protest Kavanaugh” demanding that he be barred from teaching, according to The Crimson. It also reported that students at a viewing party of the Kavanaugh testimony “applauded” and “burst out in cheers,” when Kavanaugh lamented the fact that these allegations may prevent him from teaching again. Harvard Law School has announced that Kavanaugh would not teach in winter term 2019. Although Harvard claims that it was Kavanaugh who decided, before he was confirmed, not to teach next semester, there can be little doubt that whoever made the decision, it was influenced by the student demands that he not be allowed to continue teaching.
Despite his lack of tenure, there is a long tradition at Harvard Law School to encourage judges to continue to teach in the winter term if they satisfy the general academic criteria and receive excellent student evaluations. I do not know Kavanaugh, though I encountered him once or twice in the faculty lunchroom. This is not so much about Kavanaugh as it is about a new form of McCarthyism that is quickly descending on university campuses and spreading throughout the country.
Nor has this successful effort to end Kavanaugh’s teaching career based on neutral or objective standards that are equally applicable to all suspected serious crimes, regardless of the political or ideological backgrounds of the teacher.
Recall that former terrorists, some of whom were convicted of causing or intending the deaths of innocent people, are now teaching at several American universities. Consider the cases of former Weather Underground members Kathy Boudin and Bill Ayers. Boudin was convicted of complicity in the murder of police officers, served her term, and is now a member of the faculty and co-director of the Center for Justice at Columbia University. Ayers, who has boasted of his past association with terrorism, recently retired from a faculty position at the University of Illinois at Chicago. I am aware of no efforts to deny them their teaching positions. Had Boudin been a left-wing male who had completed a prison term for sexual assault, I’m certain that many of the same students who now oppose Kavanaugh teaching at Harvard Law School would be demanding the right to take a course from the convicted terrorist. Is what Kavanaugh been accused of—whether truthfully or falsely—really worse than participating in the murder of innocent people? How can this double standard be tolerated by thoughtful students and faculty members? Do we really want to distinguish between alleged crimes committed by people of the left and people of the right?
Before a teacher is terminated on grounds such as those at issue in the Kavanaugh case, neutral and objective standards equally applicable to all must first be established. There cannot be ad hoc decisions based on mob rule and political correctness demands of the day. These standards have not been met in the Kavanaugh case. He should be invited to continue to teach. I would understand if he declined the offer, but fairness demand it should be his decision to make. Students should, of course, have the right to refuse to attend his class for any reason or no reason, but as long as there are students, no matter how few, who wish to learn from him, they should b
e accorded the opportunity to do so—regardless of other students might think.
ACLU’s Opposition to Kavanaugh Sounds Its Death Knell31
Now that Brett Kavanaugh has been confirmed, it is appropriate to look at the damage caused by the highly partisan confirmation process. Among the casualties has been an organization I have long admired.
After Politico reported that the ACLU is spending more than $1 million to oppose Judge Kavanaugh’s confirmation to the Supreme Court, I checked the ACLU website to see if its core mission had changed—if the ACLU had now officially abandoned its non-partisan nature and become yet another Democratic super PAC. But no, the ACLU still claims it is “nonpartisan.”
So why did the ACLU oppose a Republican nominee to the Supreme Court and argue for a presumption of guilt regarding sexual allegations directed against that judicial nominee?
The answer is as clear as it is simple. It is all about pleasing the donors. The ACLU used to be cash-poor but principle-rich. Now, ironically, after Trump taking office, the ACLU has never become so cash-rich yet principle-poor. Before Donald Trump was elected president, the ACLU had an annual operating budget of $60 million dollars.
When I was on the ACLU National Board, it was a fraction of that amount. Today it is flush with cash, with net assets of over $450 million dollars. As the ACLU itself admitted in its annual report ending 2017, it received “unprecedented donations” after President Trump’s election. “Unprecedented” it truly has been: the ACLU received $120 million dollars from online donations alone (up from $3 to $5 million during the Obama years).
The Case Against the Democratic House Impeaching Trump Page 26
