Jill Lepore has, in the October 8 New Yorker, rendered the ultimate service of the historian: she has made sense of a confusing present moment by re examining the past, in an article which is nominally about Ruth Bader Ginsburg, but is really about the Supreme Court and the underlying lie which pervades that most political of our institutions, namely that the justices of that Court are non political, not making up laws, not creating new strike zones but only calling balls and strikes in a zone determined by the legislature.
She begins with the question Senator Joseph Biden posed to Ginsburg during her confirmation hearings: "In your work as an advocate in the seventies you...pressed for immediate extension of the fullest constitutional protection for women under the Fourteenth Amendment and you said the Court should grant such protection notwithstanding what the rest of society, including the legislative branch, thought about the matter."
What he was questioning, of course, is what conservatives call "judicial activism" when it is the conservative ox which is gored, and "original intention" when the other side gets gored by the Court.
Clearly the Court was ahead of public opinion in Brown v Board of Education, when it declared "separate but equal" was a phony dodge for segregation and denial of basic rights to Negroes. And it may well have been ahead of public opinion in Roe v Wade, when it found a right to privacy, that word appearing nowhere in the Constitution, as the basis for a right to women "controlling their own bodies" and being allowed to have abortions, although Harry Blackmun, who wrote that extraordinarily wise opinion, noted that the line between infanticide and abortion is a matter of line drawing, and he drew his line at viability, which in 1973 was about 21 weeks.
Lepore notes, "She never answered Biden's question. Instead, she established her own rule: the Ginsburg precedent, a rule of restraint. But there are very few rules left anymore, and even less restraint."
With the Kavanaugh show, we have been told, clearly enough, it's Trump Rules now. Everything is now in your face, mafiosi style now. "Hey, I'm a gonna smash your face in!" And this is just style, we are talking about. A pretense. A veneer of respectability, when in fact, underneath, deeply held biases guide each justice to an end point unaffected by facts or the law. If you are Roger B. Taney, hearing a case from Dred Scott, who claims his rights have been violated by enslavement and you do not believe Negroes are people but in fact are property, like cattle, then you get to the decision to deny him freedom and you find a law or legal principle to get you there. This Dred Scott is property and so he has no "standing before the Court." A dog cannot sue for his freedom. Dred Scott has no more standing than a dog.
Which is exactly the point I wish to explore: 117 judges have written to the Senate condemning Judge Kavanaugh's lack of "judicial temperament," and his political attack, calling the attack against him a "political hit job." But one man's lack of restraint is another man's righteous indignation.
And Kavanaugh is not wrong about the use to which the charge against him has been put and the motivations of those, beyond his accuser, which have driven this attack.
Why do judges and Court experts so fear an appearance of anger on the part of a justice? Retired Justice Stevens said now that Kavanaugh has attacked Democrats as being politically motivated in their opposition to him, he cannot be seen as impartial.
As if any of these justices--Alito, Thomas, Roberts, Gorsuch--are not seen as politically driven in their opinions. As if Sotomayer, Kagan, Ginsberg and Breyer do not see cases through liberal lenses. It is this abiding fantasy, that the court is above politics, is impartial, does not prejudge cases by bringing to them a set of foundational beliefs which Kavanaugh threatened with his flash of anger.
There are several questions which have been jumbled up in the Kavanaugh affair and we should try to untangle these:
1/ Is it possible that both Kavanaugh and Dr. Christine Blasey Ford be telling the truth?
2/ Is the opposition to Judge Kavanaugh based on an assessment of his moral fiber, his character or on his conservative politics?
3/ Is there an 800 pound gorilla in the room nobody wants to talk about: Namely Mitch McConnell and his brazen acknowledgement that the court is fundamentally political, and politics is power and he had the power to steal the seat owed Obama, so he did and now the Democrats are saying, we will try to use our power to steal it back again?
4/ The role of #Me Too and the "joys of victimhood."
5/ The idea of "rehabilitation"--long a liberal song. We should not send people to prison to punish them because people can do violent, nasty things and yet be able to be "cured" of this, to right themselves and to change.
This last idea has got almost no attention. Even if Kavanaugh attempted to rip off Christine Blasey's swim suit and rape her when he was 17 and she was 15, does it not matter that in the 30 years since his high school and college days, he has interacted with many women who were his law clerks, his colleagues and many of them attest he was a perfect gentleman? Where is the concept of rehabilitation, personal change and redemption there? Once a drunken, randy frat boy always a frat boy? Kavanaugh would be dishonest to put on a sweet, judicial face and countenance that attack.
What of the idea both Kavanaugh and Ford are telling the truth? If Kavanaugh tried to rip off that bathing suit and failed, could it not be true because he was unable to rape and penetrate that girl, it became just another in a long line of girl rejections and he moved on and forget it?
He may have remembered his first episode of sexual intercourse, but he may well have forgotten all the failed attempts.
Of course Christine Blasey would remember that incident, while he flipped it off like a soaked sweatshirt.
Is the attack on Kavanaugh political calculation or moral outrage?
Well, from the point of view of Chuck Schumer it is the most transparent and likely cynical opportunism.
Oh, we got him now.
But from the point of view of all those women with placards outside the hearing room, all those women following Congressmen down the halls to the elevators, it's moral outrage. This is just another in the long line of males having their way and smirking about it. To say they are projecting their own experiences and demons onto Kavanaugh, who none of this women actually know, is to state the obvious.
But what about the current Kavanaugh?
If every woman who has interacted with him for the past 20 years insists he is a perfect gentleman, does that not matter?
And what of the #ME too thing? A writer for the Atlantic , Emily Yoffee, points out the whole idea that an accusation is tantamount to a conviction, that the accused is always guilty and the accuser should always be believed is the essence of injustice. Thal shall not bear false witness--a commandment which, is there because even the ancients recognized there is such a thing as false witness, and the harm suffered by the falsely accused is great, great enough to warrant a commandment of its own.
And then there are those other members of the mob with signs.
Women interviewed on the radio. The survivors.
And there is Joseph Epstein, writing in the failing NY Times of 1989:
"Victims have never been in short supply in the world, but the rush to identify oneself as a victim is rather a new feature of modern life. Why this should be so isn't very complicated: to position oneself as a victim is to position oneself for sympathy, special treatment, even victory."
--"The Joys of Victimhood"
The fact is, what this is really all about is the Supreme Court has pretended to be a political for 100 years but in reality, it as been the essence of political, purely ideological, unrestrained by term limits or being answerable to an electorate.
The solution?
Admit the truth: The Court is, has always been and likely should be purely political and ideological.
But as politics change, so should the Court.
Roe will be overturned, and that is the will of the electorate. But four years from now, or eight, if we had a new Supreme Court, with 4 or 8 additional justices (a packed Court), it will change back again, as the voters want.
As Lepore notes, even Ginsburg thought Roe was a poor case for an abortion ruling. There was a better case, but it never saw the light of day.
Meanwhile, Supreme Court justices, especially Antonin Scalia, riddled the idea of the dispassionate, "judicial temperament" with dissents which reeked of invective.
Dissents like, "Running headlong from the questions briefed and argued before us, my colleagues seek refuge in a theory as novel as it is questionable." And calling decisions "Orwellian" or "A blow against the People."
The solution has nothing to do with any one justice. The solution has to do with restructuring the Court, which can be done without a constitutional amendment.
The Constitution does not mandate 9 justices. There could be 90.
The whole idea that we can fix the problem of the "rule from the dead" with civility, calm demeanor, black robes, probity, sobriety is the ultimate sham. We are dealing with human beings who harbor deep seeded philosophical prejudices. You cannot get around that with dressing up in black robes and play acting.
We need a court which changes with every new administration, at least a little and over the course of 8 years, if the electorate wills it, will change substantially, even radically, to reflect the beliefs of the times.
That is the only way to solve the problem of the Court.
She begins with the question Senator Joseph Biden posed to Ginsburg during her confirmation hearings: "In your work as an advocate in the seventies you...pressed for immediate extension of the fullest constitutional protection for women under the Fourteenth Amendment and you said the Court should grant such protection notwithstanding what the rest of society, including the legislative branch, thought about the matter."
What he was questioning, of course, is what conservatives call "judicial activism" when it is the conservative ox which is gored, and "original intention" when the other side gets gored by the Court.
Clearly the Court was ahead of public opinion in Brown v Board of Education, when it declared "separate but equal" was a phony dodge for segregation and denial of basic rights to Negroes. And it may well have been ahead of public opinion in Roe v Wade, when it found a right to privacy, that word appearing nowhere in the Constitution, as the basis for a right to women "controlling their own bodies" and being allowed to have abortions, although Harry Blackmun, who wrote that extraordinarily wise opinion, noted that the line between infanticide and abortion is a matter of line drawing, and he drew his line at viability, which in 1973 was about 21 weeks.
Lepore notes, "She never answered Biden's question. Instead, she established her own rule: the Ginsburg precedent, a rule of restraint. But there are very few rules left anymore, and even less restraint."
With the Kavanaugh show, we have been told, clearly enough, it's Trump Rules now. Everything is now in your face, mafiosi style now. "Hey, I'm a gonna smash your face in!" And this is just style, we are talking about. A pretense. A veneer of respectability, when in fact, underneath, deeply held biases guide each justice to an end point unaffected by facts or the law. If you are Roger B. Taney, hearing a case from Dred Scott, who claims his rights have been violated by enslavement and you do not believe Negroes are people but in fact are property, like cattle, then you get to the decision to deny him freedom and you find a law or legal principle to get you there. This Dred Scott is property and so he has no "standing before the Court." A dog cannot sue for his freedom. Dred Scott has no more standing than a dog.
Which is exactly the point I wish to explore: 117 judges have written to the Senate condemning Judge Kavanaugh's lack of "judicial temperament," and his political attack, calling the attack against him a "political hit job." But one man's lack of restraint is another man's righteous indignation.
And Kavanaugh is not wrong about the use to which the charge against him has been put and the motivations of those, beyond his accuser, which have driven this attack.
Why do judges and Court experts so fear an appearance of anger on the part of a justice? Retired Justice Stevens said now that Kavanaugh has attacked Democrats as being politically motivated in their opposition to him, he cannot be seen as impartial.
As if any of these justices--Alito, Thomas, Roberts, Gorsuch--are not seen as politically driven in their opinions. As if Sotomayer, Kagan, Ginsberg and Breyer do not see cases through liberal lenses. It is this abiding fantasy, that the court is above politics, is impartial, does not prejudge cases by bringing to them a set of foundational beliefs which Kavanaugh threatened with his flash of anger.
There are several questions which have been jumbled up in the Kavanaugh affair and we should try to untangle these:
1/ Is it possible that both Kavanaugh and Dr. Christine Blasey Ford be telling the truth?
2/ Is the opposition to Judge Kavanaugh based on an assessment of his moral fiber, his character or on his conservative politics?
3/ Is there an 800 pound gorilla in the room nobody wants to talk about: Namely Mitch McConnell and his brazen acknowledgement that the court is fundamentally political, and politics is power and he had the power to steal the seat owed Obama, so he did and now the Democrats are saying, we will try to use our power to steal it back again?
4/ The role of #Me Too and the "joys of victimhood."
5/ The idea of "rehabilitation"--long a liberal song. We should not send people to prison to punish them because people can do violent, nasty things and yet be able to be "cured" of this, to right themselves and to change.
 |
| Sally Hemmings and Me Too? |
This last idea has got almost no attention. Even if Kavanaugh attempted to rip off Christine Blasey's swim suit and rape her when he was 17 and she was 15, does it not matter that in the 30 years since his high school and college days, he has interacted with many women who were his law clerks, his colleagues and many of them attest he was a perfect gentleman? Where is the concept of rehabilitation, personal change and redemption there? Once a drunken, randy frat boy always a frat boy? Kavanaugh would be dishonest to put on a sweet, judicial face and countenance that attack.
What of the idea both Kavanaugh and Ford are telling the truth? If Kavanaugh tried to rip off that bathing suit and failed, could it not be true because he was unable to rape and penetrate that girl, it became just another in a long line of girl rejections and he moved on and forget it?
He may have remembered his first episode of sexual intercourse, but he may well have forgotten all the failed attempts.
Of course Christine Blasey would remember that incident, while he flipped it off like a soaked sweatshirt.
Is the attack on Kavanaugh political calculation or moral outrage?
Well, from the point of view of Chuck Schumer it is the most transparent and likely cynical opportunism.
Oh, we got him now.
But from the point of view of all those women with placards outside the hearing room, all those women following Congressmen down the halls to the elevators, it's moral outrage. This is just another in the long line of males having their way and smirking about it. To say they are projecting their own experiences and demons onto Kavanaugh, who none of this women actually know, is to state the obvious.
But what about the current Kavanaugh?
If every woman who has interacted with him for the past 20 years insists he is a perfect gentleman, does that not matter?
And what of the #ME too thing? A writer for the Atlantic , Emily Yoffee, points out the whole idea that an accusation is tantamount to a conviction, that the accused is always guilty and the accuser should always be believed is the essence of injustice. Thal shall not bear false witness--a commandment which, is there because even the ancients recognized there is such a thing as false witness, and the harm suffered by the falsely accused is great, great enough to warrant a commandment of its own.
And then there are those other members of the mob with signs.
Women interviewed on the radio. The survivors.
And there is Joseph Epstein, writing in the failing NY Times of 1989:
"Victims have never been in short supply in the world, but the rush to identify oneself as a victim is rather a new feature of modern life. Why this should be so isn't very complicated: to position oneself as a victim is to position oneself for sympathy, special treatment, even victory."
--"The Joys of Victimhood"
The fact is, what this is really all about is the Supreme Court has pretended to be a political for 100 years but in reality, it as been the essence of political, purely ideological, unrestrained by term limits or being answerable to an electorate.
The solution?
Admit the truth: The Court is, has always been and likely should be purely political and ideological.
But as politics change, so should the Court.
Roe will be overturned, and that is the will of the electorate. But four years from now, or eight, if we had a new Supreme Court, with 4 or 8 additional justices (a packed Court), it will change back again, as the voters want.
As Lepore notes, even Ginsburg thought Roe was a poor case for an abortion ruling. There was a better case, but it never saw the light of day.
Meanwhile, Supreme Court justices, especially Antonin Scalia, riddled the idea of the dispassionate, "judicial temperament" with dissents which reeked of invective.
Dissents like, "Running headlong from the questions briefed and argued before us, my colleagues seek refuge in a theory as novel as it is questionable." And calling decisions "Orwellian" or "A blow against the People."
The solution has nothing to do with any one justice. The solution has to do with restructuring the Court, which can be done without a constitutional amendment.
The Constitution does not mandate 9 justices. There could be 90.
The whole idea that we can fix the problem of the "rule from the dead" with civility, calm demeanor, black robes, probity, sobriety is the ultimate sham. We are dealing with human beings who harbor deep seeded philosophical prejudices. You cannot get around that with dressing up in black robes and play acting.
We need a court which changes with every new administration, at least a little and over the course of 8 years, if the electorate wills it, will change substantially, even radically, to reflect the beliefs of the times.
That is the only way to solve the problem of the Court.
No comments:
Post a Comment