Judge Kavanaugh and his accuser faced off at an unedifying Senate hearing last week. Whatever your political hue, I would hope that you’d agree that the spectacle was a new low point in terms of fact-based civil discourse between the different sides of the political spectrum.
Whichever of them was more convincing to you is going to be largely a function of your previous position during the 2016 election.
The purpose of this blog post is not to attempt to convince you one way or another but to put forward a hypothesis;
The likelihood of Roe vs. Wade being overturned in full or in part has increased significantly as a result of the Democrats’ decisions to hold on to Mrs. Ford’s accusation until so late in the process and the subsequent aggressive tactics to block the Judge’s nomination based on such a low standard of evidence.
In other words, the Democrats may have shot themselves in their collective feet.
Why do I believe this?
Because even the most honest and pure of intentions amongst us is human. Judge Kavanaugh is no exception to this, as his barely-concealed rage last week illustrates. Even if he was previously undecided on whether or not abortion should be ruled legal at a Federal level before his nomination, it’s not a stretch of imagination to suspect he’s changed his opinion during this trial by innuendo.
This is not to say Mrs. Ford is lying about the events of 35 (or thereabouts) years ago; her testimony was convincing, she looked like she believed what she was saying.
Similarly, Judge Kavanaugh looked like he believed what he was saying.
And that’s the point…. a robust legal system does not condemn the accused on the basis of a single witness testimony. In fact, if that’s all there is, such cases don’t make it to trial.
Nonetheless, Judge Kavanaugh has been put through the wringer due to a single witness testimony, deliberately withheld until the last minute.
Why? Why did the Democrats choose this set of tactics?
Roe vs. Wade.
Everything the Democrats have done to block Kavanaugh has had the ultimate goal of protecting the 1973 Supreme Court ruling in Roe vs Wade, the ruling which made abortion legal in the USA, regardless of prevailing State legislation.
That a Supreme Court ruling disappoints one team and delights another is nothing new or surprising. Perhaps the reason the Democrats have chosen such an unprecedented and, frankly, distasteful set of tactics in combating a perceived threat (Kavanaugh hasn’t publicly expressed an opinion to date) to this ruling is that they know Roe vs Wade was a fudge.
If one reads the history to the ruling, it’s clear that the previous status quo was a hotch-potch of policies along the lines of “don’t ask, don’t tell” and turning a blind eye, inconsistently applied by different States.
To many, the ruling was a Federal over-reach, imposing at a Federal level, power the Constitution gave to the States.
If Roe vs Wade was a ruling on something less emotive than abortion, say, the use of wood-fired stoves in built-up areas of habitation, there obviously would be nowhere near as much angst on either side of the debate. Most likely, the ruling would have been successfully appealed long ago and, following its reversal, some States would have passed legislation allowing for the use of wood-burning stoves at differing times of the year and for differing reasons. In other States, using wood-burning stoves in towns would have remained illegal.
Brett Kavanaugh and his family have had to endure atrocious abuse by bad faith political actors using the faux cover of due process.
Regardless of whether Mrs. Ford was attacked 30-something years ago and regardless of whether Brett Kavanaugh was the attacker, if he is subsequently confirmed as the next Supreme Court appointee, he is going to have to be the most objective human in history to not be biased towards overturning Roe vs Wade should such an appeal reach his office.
I’m not suggesting he should do this but an argument could be made along the lines of, “I will recuse myself from voting on this ruling as the inherent issues during the controversy of my nomination were due to Roe vs Wade and, as a consequence of the resulting personal distress, I now have a conflict of interest“.
Personally, I hope he is nominated and overturns the law at the first opportunity; the Founding Fathers were rarely wrong in the design of the American Constitution and I see no reason why abortion shouldn’t be subject to the proven efficiency of the “marketplace” that the system of States being able to write their own criminal law code provides. If you can’t legally have an abortion in Texas, you could still have one in California, for example.
Unfortunately, the precedent of allowing such a low standard of evidence to be a credible reason to derail a Supreme Court appointment is likely to have long-lasting negative effects that both parties will have plenty of time to regret.