OPINION: The US Supreme Court Faces A Cross Roads

The turmoil surrounding Brett Kavanaugh’s nomination to the US Supreme Court began on 16th September. The Washington Post ran an article where Christine Blasey Ford, a professor of psychology at Paolo Alto University, alleged that Kavanaugh had sexually assaulted her while they were both students at Georgetown Preparatory School. In Ford’s account she detailed how Kavanaugh and his friend Mark Judge both ‘stumbling drunk’ had ‘corralled her into a room’ and locked the door. Kavanaugh then pinned her on the bed and attempted to take of her clothes, blocking her mouth with his hand in the process. Ford recounted that she escaped when Mark Judge jumped on top of her, sending the three of them flying.

Ford’s story prompted a flurry of responses, ranging from those calling for her to testify and prove that she was credible, to others who called her part of a wider tactic to derail Kavanaugh’s nomination. Other women, Deborah Ramirez and Julie Swetnick, came forward alleging stories about Kavanaugh. There was also a request by Ford’s attorney for an FBI investigation. Eventually this culminated in both Ford and Kavanaugh appearing before the Senate Judicial Committee to give testimony. Ford laid out her experience of the night before the Committee. Her voice quivered sometimes but it also showed someone who remembered an event with undeniable clarity. She capped off her account saying she was ‘100% certain’ Kavanaugh had attempted to rape her. However Kavanaugh’s testimony afterwards demonstrated an equally forceful conviction. Kavanaugh called the proceedings ‘a calculated and orchestrated political move’. He denied the charge categorically, stating that the past few days had put him and his family through a very trying ordeal.

The following day provided another twist. Senator Jeff Flake, previously one of the more neutral members of the Committee, called for an FBI investigation into Kavanaugh. His call was supported by the rest of the Committee who approved the FBI looking into the matter. President Trump also later endorsed this move, staking his opinion on Kavanaugh’s nomination on the eventual outcome of the investigation. The FBI have reportedly been given a week to look into the allegations and it must be ‘limited in scope’.

These facts bear repeating because their dramatic progression risks obscuring the real issue at hand. A nomination to the judiciary has been soured by partisanship, again. Kavanaugh may have committed sexual assault against Dr Ford, or Dr Ford may have misremembered events. Either way the Committee is caught between balancing his stories against hers, making a normally straightforward process even more complex. Unless the FBI investigation comes back with pretty damning evidence, then the Committee must decide whether to approve of Kavanaugh or not based off of what both sides have said. If they choose to approve him this whole incident will taint his tenure. Regardless of the truth, Kavanaugh’s presence on the bench will indicate to those who side with Dr Ford that the Republicans care more about political allegiances than possibly large flaws in a man’s character. While most judicial nominations are political by nature, politicians should temper this by selecting someone with a clean record that shows they can do the job. But this whole imbroglio questions whether Kavanaugh can do that. It may now appear to some that the Republicans care more about filling the Supreme Court with supporters than those who have the qualities necessary for the role. That in itself undermines the integrity of the US Supreme Court. Why trust in the ability of these judges to effect justice when some were only picked because of how they vote?

That leaves open another option to the Committee: to start over from scratch. If the integrity of their legal system was important to them, then they would have admitted that they made a mistake in choosing Kavanaugh and selected someone else. That would have shown that while the Republic party has previously obstructed judicial appointments, as with Merrick Garland, they still care about picking a suitable candidate irrespective of their political ties. It might have also given them an opportunity to reach out to Democrats and prove that there is still room for bipartisanship in Washington. There is also the very viable option of selecting another nominee from the shortlist. In this author’s opinion either Amy Coney Barrett or Thomas Hardiman look quite capable.

But if the investigation doesn’t uncover anything conclusive then it also raises a difficult question. Should Kavanaugh be dismissed without any substantive evidence? Ford’s testimony while compelling is only one allegation and if one allegation is enough to prevent someone from getting a job, that has drastic implications. In a court of law one witness’s testimony would rarely be enough to convict a person. One could argue that this is a political process and bringing an accusation 30 years old has already subverted traditional legal rules. However this is an appointment to the highest office of the legal system. If equitable rules cannot be applied in this sphere, then where can they be applied? There is also the fact that while Kavanaugh certainly has over emphasised his piety in his school days, there isn’t any conclusive evidence beyond Dr Ford’s word that he did this.

Hopefully the FBI investigation yields conclusive evidence, but this whole business has cast a shadow over the nomination process. How Congress proceeds will say a lot about the state of the Supreme Court. To appoint Kavanaugh ignores the testimony of a woman who has gone through a horrible experience. However dismissing Kavanaugh may destroy a potentially innocent man’s reputation. Justice has always been blind but now it appears that it must choose between seeing and hearing no evil, or speaking no evil.

 

By Daniel Forde – Law Editor

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