Battle for Supreme Court Seat Pits Presumption of Innocence v. #MeToo Moments

The presumption of innocence is a foundation of our judicial system. How ironic then that a nominee for the highest court in the land is presumed guilty by many of sexual misconduct as a teenager on the disputed word of his accuser, the victim, a charge denied by the nominee. 

Of course, not everyone believes the victim. Absent a corroborating eyewitness, it is her word versus his to an incident from their youth some 35 years ago. 

The burden of proof beyond a shadow of doubt, it would seem, does not favor the victim. But we are not dealing with a court of law here. Rather, we are in the court of public opinion. In this era of #MeToo, a woman’s word of alleged sexual transgression deserves not just to be heard but to be accorded the respect she was denied during the alleged assault. 

Thirty-five years ago it was common for women to keep quiet, to not go to police after being abused, particularly if the attack was not consummated with sex. Donald Trump again exhibits his ignorance and disdain for women with his tweet questioning why Christine Blasey Ford did not go to the FBI back then to accuse Brett Kavanaugh of attempted rape. Regrettably, we have come to expect such behavior from the misogynist-in-chief. 

The real tragedy here is the failure of Republican senators to show even a modicum of fealty to the advise and consent aspect of their constitutional authority. Without even listening to Blasey Ford on Thursday they have made up their minds she is mistaken. The Clarence Thomas-Anita Hill imbroglio 27 years ago provides precedent that the FBI investigates sexual misconduct allegations made against Supreme Court nominees. Yet Judiciary Committee chairman Chuck Grassley and his Republican brethren reject FBI involvement. 

Blasey Ford alleges Mark Judge witnessed the attack and by his actions precipitated her ability to free herself from Kavanaugh’s grasp. Judge says he will not testify. But why does the Judiciary Committee not force his testimony? Why is he not subpoenaed? We are, after all, trying to find an untainted justice to pass judgment on the rest of us 325 million Americans.

Both Kavanaugh and Judge, through speeches and writings, have admitted to excessive drinking while in high school. They admit to a code of silence to any indiscretion they might have perpetrated. Is their clouded alcoholic memories and adherence to a code of silence to be believed more than a young woman’s traumatized recall of an horrific incident she subsequently related to friends and mental health professionals?    

Brett Kavanaugh presents as a wholesome suburban dad, coaching his children’s basketball teams. The facade has been shattered by Judge and Kavanaugh’s own actions and words. His Georgetown Prep high school conduct mirrors that of others who have attended privileged private schools. Not the conduct of fictionalized Dead Poets Society New England students. But more like that of real life St. Paul’s School of Concord, NH, students who made rape a right of passage (https://nyti.ms/1WD4MRc). Kavanaugh has already spoken in public about his excessive drinking in high school and beyond. 

There is, of course, an understandable reason Republicans want to expeditiously approve Kavanaugh’s nomination. The sooner he gets confirmed the sooner a more pronounced rightward tilt emerges on the Supreme Court which begins its next term October 1. 

Moreover, as we have seen over the last day, the longer the Kavanaugh saga plays out the more likely other women will come forward with tales of alleged youthful indiscretions that cannot simply be explained as the typical behavior of teenage boys (https://nyti.ms/2zr9eOX). Someone should ask the 11 male Republican members of the Judiciary Committee, as well as GOP Senate leaders Mitch McConnell and John Cornyn, if their adolescent behavior included illegal underage drinking, including drinking to excess.

There are some who believe Republicans want a quick vote because they fear a blue wave of voting in November might cost them majority status in the Senate and the ability to confirm Trump nominations. But that’s a red herring argument. Even if a blue wave happened the GOP would retain control until new senators are sworn in next January, leaving sufficient lame duck time for Republicans to approve Kavanaugh or any other candidate Trump sends their way. 

One could argue that rushing Kavanaugh through the confirmation process under a #MeToo cloud is a riskier strategy as it could inflame and energize women and men to elect Democrats who would not blindly rubber-stamp Trump’s predilections. 

The battle over the timing of Blasey Ford’s appearance before the panel is another manifestation of male dominance over women. There likely would be no tangible difference in the end result given Republican intransigence to listen with an open mind. At stake, however, is the integrity of a third branch of our government. But Republicans already have shown their lust for power exceeds moral standards. They embraced for president a known philanderer and misogynist. To retain a Senate seat in Alabama they supported an accused sexual predator. 

In case it has not been raised to your level of consciousness, the vote on Kavanaugh has once again placed two GOP women senators in the spotlight. Like their “no” votes on the repeal of Obamacare, Susan Collins of Maine and Lisa Murkowski of Alaska are said to represent the moral backbone of their party. Will they place country first or party first? 

Even before Blasey Ford stepped forward Collins and Murkowski pinned their support of Kavanaugh to their belief he would not vote to overturn Roe v. Wade and a woman’s constitutional right to an abortion. Kavanaugh evaded providing a direct binding commitment to that position. The Blasey Ford allegation raises further questions about his probity to issues affecting women’s rights and equality. How will they vote, especially in light of the extreme pressure they face when next they seek re-election? Regardless of how they vote they will face pressure from the left or from the right.  

But is there no Obamacare-vote-male-equivalent to John McCain among male GOP senators? Will Jeff Flake finally cast a vote that parallels his outspoken anti-Trump rhetoric? Or Ben Sasse? or Bob Corker? Words alone are not sufficient. Action is needed to salvage the soul of the Republican party. 

The solidarity of Democrats in opposition to Kavanaugh also cannot be assured. Barring a smoking gun result from Blasey Ford’s testimony, Joe Manchin of West Virginia and nine others in vulnerable states might reason it would be wiser to vote for Kavanaugh than risk alienating conservatives in their states. After all, some Trump nominee will be seated. Why risk an election over a fait accompli?

The answer goes beyond state borders. As the party that professes its belief in women’s rights, Democrats cannot afford to have any candidate, anywhere, waver in support of this foundational tenet. Women’s rights are as central to Democrats as support for the Affordable Care Act, defense of Medicare, Medicaid and Social Security, and voting rights. 

Barring Kavanaugh’s convincing exoneration of the allegations against him, any less than complete rejection of his confirmation would be an inexcusable capitulation by Democrats. 

Under the Roberts Court, Precedent Be Damned, Even Without Kennedy's Successor

In conversation the other day my sister Lee and I shared a problem afflicting both of us—we haven’t been able to sleep well since Justice Anthony Kennedy announced his retirement from the Supreme Court, leaving to Donald Trump a choice that could well tilt the court to the right for a generation. 

Not that it wasn’t already a mostly conservative ensemble, though Kennedy provided that occasional libertarian vote that sided with the four progressive judges to validate gay rights, same sex marriage and the security of the Roe v. Wade abortion decision.

Kennedy was not flaming in his support of those bedrock Democratic principles. Now that he’s retiring it is open season on his legacy. Here’s just one example of a critique of his record on gay rights: https://nyti.ms/2lEgP4J. Similar dissections of his opinions on access to abortions, Citizens United, the Second Amendment, and other conservative court decisions are easy enough to find.

In the upcoming confirmation battle, Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska are said to be crucial because of their past support of a woman’s right to choose. They have been quoted as saying Roe v. Wade is “settled law,” precedent that should not be voided.

Yet, no nominee will acknowledge how he or she would vote on a case to invalidate Roe v. Wade. As for it being “settled law,” we have seen already how the Roberts court has rejected precedent to chart a more regressive course. Just ask civil service union members how they feel about the protection of precedent. 

It’s important to remember that even if Roe v. Wade is overturned, abortion would be permitted in states where it is legal, such as New York. But each state could pass its own restrictions. In New York, an abortion could occur for any reason up to 24 weeks of pregnancy. Other states could have tighter deadlines, or outright ban the procedure even if a mother’s life is at risk.

Kennedy framed his more libertarian votes on the concept of personal privacy. His conservative detractors point out that the Founding Fathers and Framers of the Constitution never identified privacy as a freedom or right. A new, more conservative majority could reject Kennedy’s foundational argument, setting aside the rights and freedoms he found ensconced in the Constitution. 

The challenges might come from a direction not previously expected. Stripping civil service unions of their ability to collect dues from all workers served by their collective bargaining unit came about, for example, through a First Amendment challenge, a tactic heretofore rarely used by conservatives. 

I’m not a lawyer, so this analysis could be off-base. But I’m fairly certain it has merit. The upfront fear of a more conservative justice than Kennedy being appointed is naturally focused on the issues that have been most explosive over the last several decades, gay rights, gun rights and legalized abortion. 

There are, however, two government programs that conservatives have long sought to disembowel: Social Security and the Internal Revenue Service. (They’d also like to ax Medicare, Medicaid and Obamacare.) Again, I’m no lawyer but I am distressingly confident that conservative think tanks are poring over legal strategies to upend these programs. Don’t argue with me that the first two are near-century- and century-old programs, that the population at large would not stand for dismantling Social Security and even the IRS, if push came to shove. It’s also hard to imagine a majority of Americans favoring elimination of the healthcare programs.

But I’m not talking about the population at large. All it takes is one citizen to battle all the way to the Supreme Court where he or she could find a receptive, conservative ear, or should I say, 10 ears. 

The frustration my sister and I feel (by the way, I am not excluding my brother—just haven’t talked to him about it) is in no small measure a result of our living in California and New York, two states that lean liberal, though we are both old enough to remember legal abortion in New York passed the legislature by just one vote five decades ago. 

Rights presumed to be fundamental and guaranteed as “settled law” are susceptible. The landmark Voting Rights Act of 1965 has been gutted by the Roberts court. Restrictions on the influence of corporations on the political process have been lifted by the Robert court. 

Assume nothing is permanent. Assume no election is safe. Don’t leave it to someone else—VOTE! Not just for president, but for senate and congressional candidates, for governor and attorney general, for state senate and state representative, for mayor and city council, and especially for school board candidates.