It’s Time to Stop Jurisprudence From Being the Plaything of Politics

The “intergalactic freak show,” as Senator John Kennedy (R-La.) so splendidly called it, continues. For the third time, the progressives have used a last-resort accusation of sexual misconduct to seek to besmear the reputation of a good man and force him to withdraw from the public stage. It worked with Roy Moore, it failed with Clarence Thomas, and it must not be allowed to succeed with Brett Kavanaugh.

In the case of Judge Kavanaugh, this is more than the usual “he said,” “she said,” as we had, for example, with Clarence Thomas and Anita Hill. Here the accuser, Christine Ford, claims she was assaulted by Kavanaugh and a prep-school classmate, Mark Judge. Judge and Kavanaugh both vehemently deny the incident ever happened and 65 women who knew Kavanaugh at the time have come forth to affirm that his character was completely inconsistent with what Ford alleges.

This then is “they said,” and “she said,” with her assertions significantly outweighed by theirs, as well as the clear evidence that Brett Kavanaugh is a very good Christian man who has done much for the promotion of the careers of his clerks, a majority of whom have been women, who has, by all accounts, done a splendid job of raising two daughters, coaching girls’ athletic teams, and who regularly does charitable work in a soup kitchen.

NARAL Pro-Choice America President Ilyse Hogue issued a statement this weekend in which she said that she believes Ford, adding: “These sexual assault charges come on top of charges of perjury and indications of extreme views that make the majority of Americans oppose [Kavanaugh’s] confirmation. He has shown throughout his professional tenure and these hearings a lack of respect for women and our bodily autonomy. The stakes are too high to allow this nomination to move forward.”

The makeweight charge of “perjury,” as Hillary Clinton used to say, has been discredited, but what NARAL’s screed means is far more insidious. If taken seriously, the effect would be that anytime such a charge is made against any nominee who, as does Judge Kavanaugh, holds the view that the Constitution ought to be interpreted according to its original understanding, his nomination must immediately be withdrawn.

Hogue appears to believe that Kavanaugh’s “extreme views,” (which, of course, are anything but that, as his colleagues at Yale and a plethora of former clerks have made clear) are opposed by a majority of Americans. Even supposing Hogue is correct in her dubious assumption about the state of American public opinion concerning constitutional interpretation,  a jurisprudence based on popularity makes a mockery of the rule of law. As Justice Samuel Chase warned in the early 19th century, such a view characterizes “mobocracy,” the worst of all governments, and this may, indeed, be where we are headed if Kavanaugh’s nomination is derailed.

Given the vagaries of the human heart, it is quite possible that Ford believes what she is saying, and she is reported to have passed a “lie detector test,” although all that test seems to have confirmed is that “she was telling the truth when she said her account of that night was accurate.” Since we don’t know the precise contents of “her account” at the time of the test, this circumlocution is unhelpful, as is the fact that her therapist, in whose presence Ford also discussed the incident, reports that she was accosted by four men rather than two. Ford is anything but a Trump supporter, and if one’s predilections can influence one’s memories, and, according to behavioral psychologists, they certainly can, her essentially uncorroborated tale remains suspect.

It is highly unlikely that events from more than three decades in the past, when the evidence is conflicted, could have succeeded in a court of law, but there are now no reliable evidentiary standards for the struggle in which we are engaged.

Our politics has been a blood sport since the beginning, and it has always been true, as the statement attributed to President Harry Truman has it, that if you want a friend in Washington, get a dog. It can only be hoped that Brett Kavanaugh has the comfort of such a faithful pet, but it is also clear that amidst this unscrupulous calumny he also will have the support of a fine family and a battery of actual friends and colleagues.

He is an outstanding jurist, a fine and great man, and, unlike Hogue, I believe him. This is not to suggest that sexual assault is ever tolerable, nor is it to belittle the experience of the apparently troubled Ford. I hope her therapy is successful for her, and I hope, for the sake of the nation, that Brett Kavanaugh is speedily confirmed.

For too long our jurisprudence has been the plaything of politics. The essence of American greatness, as John Adams explained, is that ours is “a government of laws and not of men.” All that Brett Kavanaugh said, in his lengthy hearings, and in his more than a decade on the bench, indicates that he understands that. The shameful performance of the Democrats and their allies at his hearings makes clear this is not a lesson they have learned.

Those of us who believe that politics is for the elected branches of our government, and objectivity in the Courts can be achieved and the rule of law maintained have been subjected to ridicule in the legal academy and the media for many years. The cry that “all law is politics,” the siren song of critical legal studies, was popular in the mid-1980s, and still frequently is heard. That view, however, is not Brett Kavanaugh’s, and those who wrongly would make Supreme Court hearings and confirmations “an intergalactic freak show,” a theater of raw politics, must not prevail.

Photo Credit: Melina Mara/The Washington Post via Getty Images

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.