The Drunken, Rapey Elephant In The Room

Donald Trump’s Supreme Court nominee Brett Kavanaugh has been accused of sexual assault.

The Republicans are lining up to dismiss, obfuscate, victim-blame, and otherwise do their Republican duty to be abject cockwaffles at every turn. I’ll give them this: they are insanely talented at it. The ability to choreograph such precise cockwafflery in unison deserves a round of applause, whether we like the actual cockwafflery or not.

They say Dr. Christine Blasey Ford’s accusation is politically motivated in both timing and substance. Of course, that would mean she planned ahead in her politically skullduggery by telling her therapist six years ago about the assault, just in case her attacker someday got nominated to the high court. And if she’s that prescient, she should get the nomination.

They say it happened 36 years ago, and she should have come forward sooner. That is kind of like saying, “yeah, I know you’re telling me now that the cake mix was full of rat shit, but it’s almost done cooking!”

They chalk it up as a “he said, she said” situation. They use that term to trick you into viewing it as some 50/50 coin flip in the dark. Given the attacks, slander, embarrassment, harassment, and disbelief that female sexual assault victims receive when they speak up, the mere act of coming forward all but guarantees this isn’t a 50/50 question.

Personally, if I were accused of raping someone, I would beg the finders of fact to investigate fully. Hook me up to a polygraph. Give me sodium pentothal. Invite everyone to testify. You know why? Because I’m not a rapist, and I’m 100% sure of that. The fact that Judge Kavanaugh and the Republicans aren’t demanding the FBI to dig in begs a few questions…all of which can be answered with, “because they are a bunch of predictably shitty people.”

Ignoring that, I’ve noticed something that needs to be examined and explained. Something that lives in the DMZ between “rich white men think they are entitled to whatever they want in life, including women’s bodies,” and “politics is game with limited time and limited possible outcomes.”

To quote musical icon Calhoun Tubbs, “Like to hear it? Here it goes!”

No one has a right to become a Supreme Court justice. If our democratically elected Senate decides for any reason to withhold its “advice and consent,” you lose and someone else gets the spot.

No one has a right to become a Supreme Court justice. Click To Tweet

It doesn’t matter how educated and pedigreed you are. It doesn’t matter that you look like you were sent from the infamous “central casting” of Donald Trump’s imagination. It doesn’t matter if the Federalist Society loves you. It doesn’t matter that, according to Dr. Christine Blasey Ford, you don’t handle rejection well.

At best, a tiny fraction of elites (and a much tinier fraction of the rest of us) has a miniscule chance at earning the privilege of becoming a Supreme Court justice.

The majority of Supreme Court justices since 1900 attended Ivy League colleges and law schools, clerked for judges or justices, wrote for their law review, and had great records in their public life. If you’re lacking any of those qualifications, you’re already facing an even harder battle than most nominees.

Assuming, however, you check off all or most of those boxes, what might cause a person to be nominated and fail to be confirmed?

To date, 37 people belong to that club. Here’s what kept a few of them out. Hint: in each case, it was much less than “possibly raped someone.”

Merrick Garland

Merrick Garland is the most recent pledge in this fraternity. President Barack Obama nominated Judge Garland after the death of Justice Antonin Scalia in February of 2016. Justice Scalia, an originalist, died when he insisted on eating the diet of the 1789 landed gentry, which led to his humours being predictably and fatally unbalanced.

Garland is a double Harvard grad, former law clerk to Supreme Court Justice William Brennan, former federal prosecutor, and was serving as a judge on the United States Court of Appeals for the District of Columbia when he was tapped for the high court vacancy.

The Senate, under Majority Leader Mitch “The Ol’ Kentucky Snappin’ Turtle” McConnell, refused to vote on Garland’s nomination. Their stated reasoning: it would be unfair for a president to make an appointment in the final year of his presidency when an election for his successor was coming soon. Their actual reasoning was a Hail Mary, stalling and praying that a Republican would win and walk into office with an open seat on the Court. Their Hail Mary worked, of course.

Judge Garland didn’t do anything wrong. There was no allegation of misconduct, no off-color jokes, no sexual harassment, no drug use.

And still, our democracy decided that he wasn’t qualified to serve. His only “sin” was being nominated by a president of the minority party at a ridiculously partisan time.

That was enough for us, through our democratically elected Senators, to disqualify an otherwise highly qualified candidate from serving.

No one has a right to become a Supreme Court justice. Sometimes that truth is served arbitrarily, tribally, and spitefully, but it’s a truth nonetheless.

Douglas Ginsburg

Douglas Ginsburg was nominated by Ronald Reagan to fill the vacancy left by the retirement of Justice Lewis Powell in 1987. Judge Ginsburg (no relation to the Notorious R.B.G.) is presently a judge on the same court as Merrick Garland, though Ginsburg took senior status in 2012.

Judge Ginsburg attended the University of Chicago Law School, a perennial top-five law school in the United States. He was a clerk for Supreme Court Justice Thurgood Marshall. He taught at Harvard Law School.

Ginsburg withdrew his own nomination when a story surfaced that he had smoked marijuana with his students at Harvard. As silly as that sounds in 2018, it was a disqualifying fact in 1987.

And by the way, if you’re unhappy about Judge Kavanaugh’s appointment? Thank the uptight squares of the Democratically controlled 1987 U.S. Senate. After Ginsburg withdrew his name, Reagan nominated Anthony Kennedy to the Court, and Justice Kennedy’s retirement is what opened the seat we’re filling today. Way to go, Joe Biden. Jeez. Maybe borrow some of that prescience from Dr. Ford next time, will ya?

No one has a right to become a Supreme Court justice. Sometimes that truth is prude, harsh, and ignorant, but it’s a truth nonetheless.

Clement Haynsworth

Clement Haynsworth was nominated by President Richard Nixon to fill the vacancy left open by the resignation of Justice Abe Fortas. Justice Fortas had been forced to resign under threat of impeachment when a shady $20,000/year for life “retainer” agreement, of which he was the beneficiary, was discovered.

Judge Haynsworth, a Harvard Law graduate, had been the Chief Judge on the Fourth Circuit Court of Appeals. He was a lawyer in private practice in South Carolina for many years before that, where he wore seersucker suits and lamented the sultry humidity whilst sipping a cool glass of sweet tea, probably.

When Nixon appointed Haynsworth in 1969, the nation and the Supreme Court were in the midst of unrest. Racial tensions were high. And the nation had just lost a Supreme Court Justice to ethics issues. Haynsworth’s nomination struck a nerve on both of those sources of unrest.

First, he had a record of deciding cases in favor of segregation, which led to opposition from the NAACP and a significant number of pro-civil rights senators. While the racist nature of being pro-segregation might smack of abject idiocy to our 2018 psyches, remember: Haynsworth was a Southern, conservative appellate court judge in the 1950’s and 60’s. Of course he had a paper trail of pro-segregation opinions and dissents. So did most Southern, conservative judges of his era.

This is not to excuse the noxious views, but merely to frame them in the proper contemporaneous light with his high court nomination. In the framework of 1969, believing racial segregation was constitutional was a mere political difference—and one that would be expected and baked into the pie as part and parcel of his nomination.

Second, during his tenure on the Fourth Circuit, Haynsworth heard two cases involving companies in which he was a major shareholder. The appearance of a conflict of interest was upsetting to the ethics watchdogs that had just pushed out Justice Fortas.

In his confirmation hearings, Judge Haynsworth noted that his opinions on the constitutionality of segregation had changed in the intervening years. Lawyers and colleagues testified to his qualifications as a jurist, a citizen, and an intellectual. Some scholars have even noted that Judge Haynsworth’s career, taken beginning to end, marks him as more of a moderate than many of his jurisprudential contemporaries.

Still, no one has a right to become a Supreme Court justice. Sometimes that truth ignores your qualifications. Sometimes it seizes instead upon old, commonly held ideas you’ve actually since abandoned. Sometimes it just runs headlong into the zeitgeist. But it’s a truth nonetheless.

Today

A divided, tribal Senate is being asked to confirm or reject the nomination of Judge Brett Kavanaugh to the Supreme Court.

Kavanaugh’s education is stellar. He clerked for Justice Kennedy. He worked in the White House. He’s an judge on the D.C. Circuit Court of Appeals. He’s clean cut, incredibly intelligent, a family man, and well respected in his field.

And according to one person, who passed a polygraph and named witnesses, Kavanaugh attempted to rape a young woman when he was 17. Her accusation alone—36 years or 36 minutes after the event—demands people who seek to administer justice on behalf of a nation take the accusation seriously.

No one has a right to become a Supreme Court justice. Sometimes that truth notices your odd reluctance to seek justice in a difficult situation. Sometimes it realizes that there are binders full of equally qualified, less (allegedly) rapey judges that whose nominations would play better politically for the nominating party.

But if Merrick Garland, Douglas Ginsburg, and Clement Haynsworth can miss out because of the politics of the moment, surely it’s fair for Brett Kavanaugh to miss out for being on the wrong side, physically and politically, of the dominant societal issue of the era.

 


 

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