Appointing a new Supreme Court Justice

I first posted this over a month ago (5 September) at the start of the confirmation process, and it was meant as a one off. I have since added to it as there have been new developments and twists in the tale (scroll down), until we now know the outcome of what has often been high drama.

Something that is quite different in the USA “system” and that of the UK, is the role of its Supreme Court. In the US, they can and do make decisions with far reaching implications e.g. the 1973 Roe versus Wade on abortion and latterly on same sex marriage. Part of the reason why this matters in the USA and most (including me) would be pushed even to name one Supreme Court Justice in the UK is that they cover many of the areas that the Legislature (Congress and Senate) have not made laws but where rulings are needed.

Nominating a new Supreme Court member (which is a lifelong appointment) is one of the greatest powers the USA President has and for some it might have been the main reason for voting for a particular presidential candidate Although rather simplistic to say so, conservative leaning Presidents tend to nominate conservative leaning justices and liberal leaning Presidents tend to nominate liberal leaning justices.  A conservative judge will tend to make rulings based on a strict understanding of the USA Constitution if not clear in law, whereas in such cases a liberal judge will tend to make rulings based on what he/she thinks is best.

Because the Supreme Court invariably has a mix of conservative and liberal judges, although likely all would regard themselves as both impartial and independent, shifting the balance one way or another is very important as it will have a bearing on future important decisions that are to be made. So we come to the latest Trump presidency nominee: Brett Kavanaugh. To my recollection his previous and first one (Neil Gorsuch) got confirmed relatively smoothly. But if yesterday’s Senate hearing is anything to go by, not this time! I spent a couple hours (of an 8 hour session – with more to come) entertained watching proceedings.

It began with fireworks – a mix of Democrat led points of order (ignored by the Chairman, which they continued to raise regardless) along with heckling from the gallery. This was a feature throughout the session despite police evictions being made, and not something the Chair seemed to have got on top off. Besides, according to their detractors, they wanted to derail proceedings because of the liberal versus conservative partisanship, along with anti-Trump sentiment and the mid-term elections being only two months away. The Democrat gripe was they had been supplied some of the documents pertinent to the ongoing deliberations, only hours previously, although according to their detractors they already had more documents that the previous five nominees put together. Besides which, supplying important documentation late is nothing new; the Democrats managed it with Obamacare. But in fairness, it is not all one sided. When in the few months left in his presidency Obama had proposed his person for Supreme Court judge, but the Republicans stalled until he had been replaced!

Following the initial excitement, various Senators from each side gave their speeches, which appeared a mix of (sadly) political grandstanding and (gladly) good points expressing support or otherwise of the nomination. Finally, Judge Kavanaugh had his say, which I found impressive. Not only did he come across as highly competent and with an excellent approach, but he seemed a nice family man who gave to his community. But there is a long way still to go and one awaits further twists in the tale. As for me, I know not enough about rules of engagement to say whether the hearing should be deferred (from what I can make out, it was right to go ahead) or how good Kavanaugh is. I know enough though, what we are seeing and the final outcome is more about politics than finding the best person for the Supreme Court.

In the grand scheme of where we are in USA political life, the hiatus surrounding this appointment is a sideshow, although seeing how it all unfolds will be interesting. Things are hotting up for November’s mid-term elections, where the Democrats hope to do well and may be in a position to impeach Trump. If Alex Jones is to be believed, these are the most important elections ever and will determine if the Trump led resistance to globalist tyranny with continue or not. One of the most recent happenings along with the ongoing attempt to shut up conservative voices and undermine Trump, is the publishing of Bob Woodward (of Watergate fame) book, which ridiculed things going on at the White House (which has been denied vehemently by Trump, Kelly and Mattis). There is no doubt much still to come.

Update 21/09/18: It has been just over two weeks since I first posted on the Senate hearings and the Senate committee after giving Kavanaugh a thorough grilling, although sadly much of it on political partisan lines, where from what I can make out he acquitted himself well, and there appeared no legitimate reason to stop the appointment, all seemed set to approve the nomination. But then a bombshell was dropped, even though the Senator who dropped it knew of this for sometime and in the view of many (including myself) chose the time to cause most damage, hoping it will delay resolution indefinitely. Christine Blasey Ford alleged while they were both teenagers, 35 years previously Brett Kavanaugh sexually assaulted her, a claim Kavanaugh vehemently denied. We are left with one person’s word against another with little (it seems at this stage at least) to corroborate the story. Like many, I go by what I read etc. and am inclined to a view where the truth lies, which opinion as far as this update is concerned is immaterial. Support for either Ford or Kavanaugh seems to be on mainly political lines, with much written and said. For example “Democrats: We Already Know Know Kavanaugh Is Guilty” sides with Ford and “Women Speak In Support Of Brett Kavanaugh” sides with Kavanaugh. As I write, it is not clear how this allegation is going to be dealt with and in this day of “me too” and despite precedence (reference Judge Clarence Thomas) it is not something that can be ignored. It looks like Ford will have a chance to tell her story to the committee (although a full FBI investigation had been called for) and for the committee to decide whether or not to proceed with the nomination process. If Kavanaugh had done the assault, I would be inclined to want to give him (or anyone else come to that) a second chance, providing it was not one of many, but in this case he would also be proved to be a liar, in which in this case I would be reticent to proceed further, even though other than this accusation his credentials to be a Supreme Court judge appear to be impeccable. My hope is this will be dealt with swiftly, given the clear political delay tactics, and that the truth will come out. We will soon know.

Update 25/09/18: So we have another allegation against Kavanaugh concerning sexual misconduct in his early years (the story: “Senate Democrats Investigate a New Allegation of Sexual Misconduct, from Brett Kavanaugh’s College Years” refers). When a similar pattern of allegations occurred concerning Harvey Weinstein, for example, many including me recognised this was not a time to let sleeping dogs lie. Significantly, Kavanaugh has denied all allegations and effectively done so on oath. It is regrettable that the two accusations (thus far) have been so widely commented upon, along partisan lines, with the first port of call for the accusers being antagonistic political operatives, and can only hope the mantra: “innocent until proved guilty” will apply.

While frustratingly, to work out whether or not there is truth in the allegations will delay proceedings when it comes to appointing Kavanaugh to the Supreme Court, even to the point hoped for by the “Democrat stop him being appointed at all costs” brigade, i.e. until when the mid term elections have taken place and their hope of taking the Senate is realised, justice requires that the accusers be heard. There is much in the way of political shenanigans going on yet within reasonable limits these women need to be heard, their stories investigated as far as is practicable, and with an opportunity for the accused to clear his name. If it transpires that it becomes clear that the allegations are true, despite all sorts of mitigation, I would take the view that the appointment should not take place, for Kavanaugh would have been proved a liar and an unrepentant sexual predator. My instinct tells me he is innocent and the motive is to attack him because of his views, by fair means and foul.

Even as I write there is the possibility of another woman coming out with another accusation that many years previously Kavanaugh had acted in a sexually inappropriate way (see here), which suggests we are far from hearing the last of the matter and wondering how all these accusations will be handled. My hope and prayer is truth will win out, the good guys will be vindicated and the bad guys exposed! Thankfully it is not down to me to determine what happens next.


Update 28/09/18: So the next big day has been and gone. Before the Senate judiciary committee, both Dr Ford and Judge Kavanaugh gave their version of events regarding the sexual misconduct allegations and unsurprising the accounts differed widely. What became clear was that nothing was proven, although from what I could make out Dr Ford’s story contained much that could not be verified, even though she appeared credible, and while Judge Kavanaugh provided a robust defence, although he might have done better not to go on all out attack, he has sadly become tainted by the allegation which as things currently stand he is unable to refute beyond all shadow of doubt. Political grandstanding continued and it seemed many of the Senators who spoke (from both parties) were more interested in defending their position than seeking the truth, and sadly the advice of C.S.Lewis (above) was ignored. The next day the committee approved the nomination; voting was unsurprisingly done on party lines. We now await the Senate vote to determine if Judge Kavanaugh is to be appointed to the Supreme Court, with delay possible to investigate further, although one wonders what further light can be shown to back one or other claim. (As requested by some members including Republicans, there will be further FBI investigations into the allegations beforehand (see here), which on balance is a good thing – ed) I continue to witness American political life at its worst, which has little to do with doing what is right. I don’t dispute that if a woman makes an accusation like what Dr. Ford did, despite overt manipulation, it needs to be taken seriously and investigated, as long as the accused is deemed innocent until proved guilty. There is little doubt in my mind the Democrats were about stopping a Conservative Judge being appointed to the Supreme Court, and significantly affect the decision making balance. “Disappointment” hardly does justice to how I feel. I suspect the ramifications of this charade will be far reaching; hopefully some of it will turn out to be positive.


Update 08/10/18: So we now know – the FBI investigation into the latest allegation have taken place with nothing untoward found as far as Brett Kavanaugh is concerned. He has now been appointed as a judge to the US Supreme Court. Voting was done (worryingly but unsurprisingly) on party political lines. All but one of the Republican senators voted to approve and all but one of the Democrat senators voted NOT to approve. It was a bloody affair and did not reflect well on American political life. This reflects sharply divided opinions by the country as a whole. It was clear from the outset that the Democrats were going to oppose at what turned out to be at any cost. The stakes were high and the implications huge, and quite likely the Republicans would have acted similarly if the positions were reversed. Perhaps the contribution that impressed me most was that of Senator Susan Collins (see here) (for reasoned and balanced argument) and that which impressed least was by Senator Dianne Feinstein (for mischief making)

While I am delighted at this outcome and believe the right outcome, I do have reservations. When a friend posted an article titled “Three Kavanaugh drinking buddies publish an op-ed saying he lied under oath, should not be confirmed” I responded: “Thanks for sharing this. While I don’t want to believe what these three said about Kavanaugh being so drunk there is no way he could remember what he was doing and this contrary to his own statement. However, they spoiled it with the final para starting “There is no chance he will act as an impartial judge”. I am not sure that follows necessarily and it would have read more powerfully for folk like me if they left it at “he said this but actually this was how it was…We could then draw our own conclusions”. I also believe the issue of trauma needed to be dealt with although sadly in this instance it did not happen as if could have due to political posturing. I wrote in response to a discussion on the matter: “Trauma can last a lifetime and I know how difficult it is to overcome and speak about it. Something probably did happen to this lady (and warranted further investigation) but I doubt he was involved and don’t doubt this was a political stitch up. People do bad things under the influence of alcohol and some they barely recall. It would be wrong however to condemn for past sins unless that it reveals a present tendency or that person lied. As painful as the process was and as despicable as many participants have been in that process, it needed to be checked out. I am not sure more can reasonably be done. We are innocent until proven guilty. Let it be so with Kavanaugh. Sadly doubts remain. We have to wait for the day when all of us stand before the great judge when the whole truth will be revealed.”



One thought on “Appointing a new Supreme Court Justice

  1. paul fox says:

    I think this gives the game away, and shows were your bias lays—“A conservative judge will tend to make rulings based on a strict understanding of the USA Constitution if not clear in law, whereas in such cases a liberal judge will tend to make rulings based on what he/she thinks is best. ?????

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