Notes on the Kavanaugh Nomination Brawl

Two views of the Kavanaugh fiasco. One from John Hinderaker, of the Powerline blog. One from Alan Dershowitz, who does not need an introduction.

Hinderaker argued (via Maggie’s Farm) that Democrats are smearing Kavanaugh because they want to warn any and all Republicans against crossing them, whether it means associating with Donald Trump or being part of a Republican administration. It’s Maxine Waters politics: make it impossible for Republicans to show their faces in public.

I think that Judge Kavanaugh’s pristine reputation is one reason why the Democrats have unleashed against him a smear campaign unparalleled in American history. This is the message they are trying to send: If we can do this to the Boy Scout Brett Kavanaugh, we can do it to anyone. Are you thinking of serving in a Republican administration? Or accepting an appointment to the federal judiciary from a Republican president? Think twice, and then think again.

Because our smear machine will reach back to middle school if necessary. If we can’t find any dirt on you, we will manufacture some. There is no depth to which we will not stoop, and your honesty, integrity and spotless reputation are no match for our control over the media and our determination to dredge up ridiculous allegations against anyone who stands in our way.

Really, the more ridiculous the better. If we can accuse Brett Kavanaugh, one of the most respected lawyers and judges in America, of gang rape, we can accuse anyone of anything! And our insane accusations will dominate the news….

By smearing the ultimate Boy Scout, the Democrats signal that they are determined to go lower than anyone has ever gone in American history. They intend to deter normal people from serving in Republican administrations, or accepting appointments from Republican presidents, or, ultimately, from identifying themselves with the Republican party. Given that strategy, the fact that they are smearing a man of obviously sterling character on absurdly flimsy grounds is not a bug, it is a feature. The fact that the Democrats’ smears are so patently false is ultimately their main point.

The Democrats are telling us: Republicans, beware–if this can happen to Brett Kavanaugh, it can happen to anyone. You’d better go quietly and cede power to us.

They will do anything to win. They will go to any lengths and destroy any individual in order to exercise power. So says Hinderaker.

Dershowitz responds to some of the talking points we have been hearing on the news. The first being, that Kavanaugh is not entitled to the presumption of innocence because he was undergoing a job interview.

Judge Kavanaugh is on trial for his life. At stake are his career, his family, his legacy and a reputation earned over many decades as a lawyer and judge.

If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a “convicted” rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.

The court of public opinion is different from a court of law, but it too is an important court. Wouldn’t anyone rather be convicted in a court of law of drunken driving—also a serious crime—than convicted in the court of public opinion of being a serial sex predator? Many would even rather go to prison for a year on drunken driving charges than be labeled a sexual predator for life. In a nation dedicated to fairness and due process, explicit constitutional rights often serve as a metaphor and guide in the kind of basic fairness we demand even in nonlegal proceedings. That model should operate here as well….

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.

Considering the potential consequences for the man and his family, we should, Dershowitz says, afford the accused all legal protections. Instead, Kavanaugh’s detractors are refusing to give him any legal protections. Dershowitz reminds us that we saw exactly the same thing during the McCarthy era, when people were slandered and defamed, their character assassinated, by the reckless senator from Wisconsin.

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.

It’s a sad day when fundamental fairness is a controversial idea.