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US Politics

Unjudicial Kavanaugh is “damaged goods”; his ratification will weaken the Supreme Court

When I first heard the allegation that Brett Kavanaugh had sexually molested a fellow mid-teenager at an up-market, under-age, booze fest house-party the best part of forty years ago, I asked myself how such an allegation, if true, could constitute good grounds for rejecting his nomination to the US Supreme Court given that he had served as a US Federal Appeal Court judge since 2006 having been nominated by George W Bush.

After all, there was no contemporary investigation or complaint of the molestation allegation by Christine Blasey Ford. He had been seriously challenged by the Democrats as a judicial nominee for his Republican political partisanship in 2006. Why bring this new allegation up now?

But everything changed in my mind when I saw their sworn testimonies to the Judiciary Committee on Thursday.

Her testimony seemed to be truthful; his did not.

It wasn’t simply a case of him possibly minimizing an incident that she might possibly have been exaggerating.

I have seen many witnesses testify in criminal and civil cases, in inquiries and tribunals, and before parliamentary committees over many years.

You develop over time a kind of personal radar in relation to testimony and witnesses as an advocate. It is, of course, by no means infallible. Most witnesses attempt to be subjectively truthful, even if many are self-serving.

But you sense the red warning light flashing on occasion in relation to some witnesses, and Brett Kavanaugh was one such witness in my book.

He was testifying under oath. He was a sitting senior member of the US judiciary. His evidence was, to my mind, evasive, contrived, condescending, insolent, self-pitying and above all very unjudicial.

His emotion seemed contrived compared with hers. His anger rang hollow. His invocation of his family and the recounting of his daughter’s saying that she was praying for Professor Blasey Ford was – well – yuck, even in a political society that values corniness to a mind-boggling extent.

No father should bring his children into such an occasion as stage props even for dramatic effect. It was as off-key and phony and naff as Richard Nixon’s famous attempt to prove his innocence by telling his colleagues about the gift of a puppy called Checkers to his young daughter.

His aggressiveness and evasiveness on the issue as to whether he was a regular abuser of alcohol in his high school and college days seemed not merely defensive (which would be understandable) but needlessly rang false (which for a judge testifying on oath was inexplicable).

His anger seemed strangely directed at the Democrat members of the Committee. If he was the victim of an entirely false and invented charge, he should have been angry with Prof Blasey Ford. The Democrats did not invent or seek out her accusation, after all. Were they supposed to ignore it?

He seemed particularly angry that her claim only emerged after his earlier confirmation hearing had gone very well for him. Which raises the question – did he think they should have raised it earlier orwas it that they raised it at all?

Likewise for an attorney who served under Kenneth Starr in his famous inquiry into the Clintons, it was strange that he cited revenge for the Clintons as the Democrats’ motive in raising Prof Blasey Ford’s allegation.

That allegation was itself wildly partisan and unjudicial. From a sitting judge it was a shocking lapse of judgment and a deep wound on the party political impartiality expected of a US Supreme Court Justice.

I need hardly add that Kavanaugh needed a ringing vindication of his honesty as a witness from President Trump as much as a hole in the head. Trump spends his time lying through his teeth about his own pussy-grabbing, groping and infidelity; he knows all about how to portray the truth as fake news especially when it concerns the molestation of women.

If the Senate gets to vote on Trump’s nomination of Kavanaugh, it will most likely vote to endorse it unless a few Republicans break ranks.

In the eyes of American women, I imagine, Kavanaugh is “damaged goods”; his ratification will weaken the Supreme Court.

For American men, I think it likely that they would consider the molestation allegation as “spent” or of lesser consequence, but many would be deeply concerned by the damage Kavanaugh did to himself by his testimony.

Nobody could think that the confirmation proceedings in Washington are serving America well. Nobody can really think that Trump’s commitment to pack the Supreme Court with conservatives was anything more than cynical politics. Does he really care about abortion? And if so, when did he abandon his previous liberal stance on the issue which fits more closely with his real sexual mores as now revealed and understood.

For many Americans, this week’s circus in the Senate confirmation hearing and their President’s elephantine address to the UN must be thoroughly depressing. On the other hand, they may have been reassured by his revelation that the the Chinese people greatly respect his big brain!

For Irish people, the controversy raises the question of politicizing the appointment of the judiciary. Compared with the US, our system has served us well.

The Irish government makes its choices as to whether to appoint liberal or conservative judges to our Supreme Court in a low-key and un-controversial manner. This is not merely their right; it is their duty and responsibility under the Constitution.

One member of the present government ( I won’t name him to save him embarrassment – but you can guess who! ) actually introduced a Bill in Dail Eireann to amend our Constitution to provide for the future selection of judges by a committee of parliamentarians on which government supports would be a minority! Happily it was utterly rejected.

This week’s happenings in Washington show how foolish such a proposal was - and still is.

And yet the same minister now wants to create a majority lay body to whom existing judges of the High Court and the Court of Appeal and Supreme Court would have to apply in order to be placed on a short-list of three to be considered by the Cabinet for promotion, and where the members of government would be kept in the dark as to which judges had applied and had not been short-listed or to form any independent judgment as to whether the short-list was in fact the best selection.

That proposal is unconstitutional, in my opinion. And the Bill currently before the Seanad is designed to undermine the clear constitutional function and duty of the elected government to make appointments to the High Court, the Court of Appeal, and the Supreme Court, in accordance with the government’s own discretion and judgment as to the composition, balance and outlook of those vital constitutional courts.

If that Bill is persisted with in its present form, the person elected to be our President next month may well have to consider referring it to the Supreme Court under Article 26.

Maybe somebody would ask the candidates for the presidency where they stand on that issue.

It is relevant to the President’s constitutional office – unlike all the absurdly irrelevant matters being raised such as vaccination and participation in TV investment programmes.

Photo credit: Wikimedia Commons

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