Monday, October 8, 2018

Blogger Candidate Forum: SCOTUS Nomination Wrap Up

Hello Everyone:

Blogger Candidate Forum dropped by, rested, and ready to share a few final thoughts on the now-completed Supreme Court nomination of now-Justice Brett Kavanaugh.  Quick observation, it was messy.  Messy is a serious understatement.  Bloody awful mess is more like it.  Nineteenth century German leader Otto von Bismarck famously said, "If you like laws and sausages, you should never watch either one being made."  Add to that, confirming Supreme Court justices.  What happened?  Good question. Fortunately, The Candidate Forum is here to try to make sense of all of this and figure out what comes next.

Shall we start with what happened.  Short answer, Brett Kavanaugh was confirmed as the 114th Associate Supreme Court Justice.  Justice Kavanaugh was nominated by Mr. Donald Trump on July 9, 2018 to fill the seat of retired Justice Anthony Kennedy. From the beginning, Justice Kavanaugh's nomination raised red flags.  The biggest flag was the White House's refusal to release 100,000 pages of Justice Kavanaugh's legal writings during his tenure as staff secretary to former President George W. Bush and his work associated with Ken Starr. The Senate Judiciary Committee requested the documents from the National Archives, in order to prepare for the hearings. The National Archives responded saying that given the sheer volume of the documents, it would need until October to fulfill the Committee's request.  The very impatient Republicans decided to go ahead with the hearing, regardless of the fact that 90 percent of the justice's papers were unavailable.  This prompted six senate democrats to file a Freedom of Information Act lawsuit to force the release. Mere hours before the first round of hearings, the lawyer for Pres. Bush released 42,000 pages of documents, further inflaming Democrat anger.  Adding more gas to the fire, New Jersey Senator Cory Booker (D) risked expulsion from the Senate by releasing 28 new documents.  This was just the first act.  Act two was far more incendiary.

Dr. Christine Blasey Ford, a research psychologist at Palo Alto, accused Justice Kavanaugh of sexual assault, during a party, in the early eighties.  Originally, Dr. Ford sent a letter, detailing the incident, to ranking Judiciary Committee Democrat Senator Dianne Feinstein (CA). In the letter, Dr. Ford named witness, requested anonymity and an FBI investigation. The letter became a open secret until Dr. Ford went to the Washington Post to speak on the record.  This lead to ham fisted invitation from the Committee to testify, just the principals in the case: Dr. Ford and Justice Kavanaugh, no coabborating witnesses. Dr. Ford and Justice Kavanaugh appeared two weeks ago to speak their peace.  It was a day of emotionally charged testimony that left both sides feeling bloodied and bruised. The following day, the Judiciary Committee took a vote on whether to forward the nomination.  In a dramatic turn of events, Committee member retiring Arizona Senator Jeff Flake (R) was confronted by two sexual assault survivors.  The confrontation caused him to feel enough of a spasm of consciousness to join Democrat Senator Chris Coons (Del) in asking for a pause in the process to allow for an investigation. Asked and granted.  A week pause was granted for the FBI to look into the matter. The investigation was completed last Wednesday and a single copy was made available to Senators.  Depending on who you talked to, the investigation was either thorough or incomplete.  The final result: Brett Kavanaugh was confirmed by the historically tiniest margins 50-48.  How bad was the process?  Vox reporters teamed up to breakdown the takeaways (; Oct. 6, 2018; date accessed Oct. 8, 2018). 

Christine Blasey Ford unintentionally gave Americans a #MeToo test and Conservatives, by-and-large, failed.  In the year since the Pulitzer Prize winning Harvey Weinstein exposé by The New York Times and The New Yorker, the #MeToo movement has brought into the public forum conversations on what is acceptable male behavior and the lack of consequences when something happens. Additionally, the lingering trauma rippling through the victims' lives. The act is heinous enough but the aftermath is nothing short of re-victimization.  The victim, typically a woman, is pilliored, told she is mistaken, hysterical, intoxicated, you get the idea.

Dr. Ford's testimony tested the strength of #MeToo.  Based on the reaction in the social media, she was either credible or not truthful. Few Republicans, the the glaring acception of the president, dared to mock Dr. Ford. Conservatives who might have some questions about her stories, appeared to accord it a new level of respect not seen before #MeToo. In the end, they fell back on the same old clichés: that lacking any physical evidence or witnesses, there is the presumption of innocence.  A serious commitment to #MeToo requires an acknowledgment that the social and cultural norms have shifted and that prior acts need to be re-considered in this new context 

Senate Majority Leader Mitch McConnell (R-KY) is beholden to donors.  Money buys access to power. Senator McConnell's successful ramming through Kavanaugh nomination despite all the negative press and accusations, delivered for his donors--a conservative majority Supreme Court. He understood that the religious right, Republican super donors, business organizations, the Federalist Society made this nomination a priority and got results.  

Senator Lisa Murkowski (R-AK) emerged as a hero.  Senator Murkowski broke from party ranks, listened to the survivors, and voted with Democrats.  Another hero is Senator Heidi Heitkamp (D-ND) and Senator Joe Donnelly (D-IN). Senators Donnelly and Heitkamp represent the very red states of North Dakota and Indiana, respectively; are currently locked in a tight battle for re-election. Unlike West Viriginia Democrat Joe Manchin, who put job security over principles, she voted no.  It may cost her re-election but sometimes things are more important than others. 

The conservatives finally got the majority on the Supreme Court, the long cherished dream of the Federalist Society.  The Federalist Society was formed in the early eighties as response to the liberalism of the high court in the sixties and seventies. They set out grow conservative ranks in law schools and the federal bench. Justice Kavanaugh was a onetime member and the organization vetted the president's list of nominees.  This is why the debate about allegations of sexual assault against the new Justice barely made a dent.  This was a golden opportunity to dominate the court. No matter what the opposition did or said, they never gained a foothold.  It was eyes on the prize for conservatives.

Maine Senator Susan Collins (R) and fellow female Repbulicans proved that when comes to protecting their access to power and privilege, they will side with their man. 

The Supreme Court is damaged, possibly beyond repair.  The reson: Merrick Garland.  Senator McConnell's persistent refusal to even give federal appellate court Judge Garland the courtesy of meeting and keep the late Justice Antonin Scalia's seat open until after the 2016 did extraordinary damage to the Supreme Court.  The damage was compounded by the quick nominations and confirmations of Justices Neil Gorsuch and Brett Kavanaugh along mostly partisan lines. This was despite of Justice Kavanaugh's epic melt down.  This was contradiction to his testimony that he considered himself an impartial arbiter of the law.

Chief Justice John Roberts has long been worried about the court's legitimacy as a neutral party. This may have factored into his support for upholding the Affordable Care Act.  He wanted to avoid the appearance of a very conservative bench.  Justices Gorsuch and Kavanaugh upended that notion. 

Republicans in blue-friendly districts may be lost. The bloody, awful, controversial just completed nomination process might have alienated voters who would typically lean red enough to make them jump party lines. Based on the comments Yours Truly checked on the social media, this may happen. The drama surrounding Justice Kavanaugh's nomination did rev up the party base, in the short run, but it also energized the Democrat base.  Which energy will last through Election Day is anyone's guess. 

Now what?  The Supreme Court will probably take a lower profile, hearing less boldfaced cases, in hopes of re-setting its reputation. The United States Senate is also damaged goods. The tone deaf manner it handled Dr. Christine Blasey Ford's accusation proved that it learned absolutely nothing since Anita Hill. What is a concerned citizen supposed to do?  Vote November 6th.

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