After Kavanaugh, A Way to Take the Spectacle Out of Confirmations

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Is there a silver lining in the malignant circus now playing at the Capitol and beamed to computer and television screens across the fruited plain? Depending on when you happen to read this, you might ask: “Which circus? Who’s playing this week?”

Politics is by nature a performance art. The rhetor declaiming in the Agora or the orator fulminating in the Forum may not have been Cory Booker or Kamala Harris—and certainly wasn’t Dianne Feinstein—but we can see the same habits of exaggeration, grandstanding, calumny, and economy with the truth at work, to say nothing of Machiavellian calculation and preening self-regard.

Politics, in short, may be a high calling—the proper ordering of the state, after all, is a big deal—but it is assuredly a grubby business full of loathsome characters, backstabbing, and power-hungry melodrama. So what else is new?

Everyone’s personal metanoia proceeds at its own pace and is sparked by different contingencies. For me, this week’s performance, starring Judge Brett Kavanaugh and Christine Blasey Ford, was a minor Saul-on-the-road-to-Damascus moment. I have long known, and often written, that the process by which we confirm candidates for the Supreme Court has become deeply corrupt. (I was going to say “politicized,” but that is not quite right: it’s by nature a political process, but one that has been perverted.)

As many commentators have noted, the definitive twist came with Ronald Reagan’s nomination of Robert Bork in 1987. That televised circus, unprecedented in its tawdriness, captivated the nation’s prurient attention and marked a brutal new low, unsurpassed even by the battalions of lies that surrounded Clarence Thomas during his confirmation hearings. This wasn’t “advice and consent” but naked power politics, shocking partly for its breathtaking mendacity and bad faith but mostly alarming because of what it betokened about the place of “the least dangerous branch” in the metabolism of out political life.

Yes, judges were men, and men were interested parties, but here—one had thought—was a part of our political process that was set slightly to one side of the usual rough and tumble “I-want-this-so-you-cannot-have-that” partisan squabbling. The still-novel idea, back then, was that we were a country of laws, not men, and we therefore required people of intelligence and good will who were sufficiently impartial to don the black robe signifying not that they had no personal interests but that they could be sufficiently dispassionate to bracket those interests in order to adjudicate a dispute on the basis of the settled law of the land in light of precedent and the Constitution. Once upon a time, that was the idea.

We still pay lip service to that idea, of course, and regarding some disputes, something resembling that process still unfolds.

But there are many issues—the legalized slaughter of unborn infants is one—where an impartial interpretation of the law is not just unwanted; it is positively verboten (unless of course the desired result is assured from the beginning, in which case one has not interpretation—saying “what the law is” as Chief Justice John Marshall once put it—but rather the declaration of a foregone conclusion).

I was not so naïve as to think that the confirmation of Brett Kavanaugh would be uncontentious. I knew that there would be wailing and gnashing of teeth. Still, I thought that he would be confirmed, after the usual histrionics, without much fuss. After all, he is not only eminently qualified, he is ostentatiously qualified, having served with eloquent distinction on one of the most distinguished courts in the country. He has written some 300 closely reasoned opinions, is widely respected across a broad spectrum of political sentiment, and has consistently shown himself to be thoughtful, dispassionate, and impartial. Yes, he is personally conservative. But his judicial philosophy and practice are such that he could be counted on not to weaponize the law for partisan ends.

I still think he will be confirmed, notwithstanding the recent psychologically challenged bimbo eruption. There are a few reasons I think Brett Kavanaugh will survive the sound and fury, the tale told by many idiots, that his confirmation hearing has descended into.

One reason I have already mentioned: his ostentatious qualification. “It didn’t help Bob Bork,” you might say, “and he was certainly eminently qualified.” Indeed he was. But the borking of Bork succeeded in part because of its novelty. Nothing like it had happened before, and the Reagan administration was blindsided by the orchestrated tsunami of abuse that swept over the nominee. We’ve been here before and so far Kavanaugh has made his inquisitors look like petulant children.

More telling, perhaps, is that shifting, fickle thing, the mood of the people. The confirmation hearings are nothing if not theater, and, just as in the old TV show “Queen for a Day,” there is an applause-o-meter active if implicit in the wings. You might think that the effort to destroy Kavanaugh is directed chiefly by hostile senators, but in the end it is subject to the mood of the public. In this gladiatorial contest, it is the crowd who will direct the emperor’s thumbs up or thumbs down. If the public is with him—and I think it is—Kavanaugh will be confirmed. When Dianne Feinstein pulled Christine Ford out of a hat, people were at first taken aback. “Heavens! Is this apparently upstanding gent just another reprobate?”

But it didn’t take long for this particular rabbit to be stewed. First, it was patent that the entire Feinstein-Ford drama was, as Andy McCarthy put it, a “set-up.” It had nothing to do with trying to decide whether Brett Kavanaugh had the competence and the temperament to be a worthy Supreme Court Justice and everything to do with partisan hackery. It was patently embarrassing.

Of course, partisan passion is not above a little (or indeed a lot) of embarrassment. Who cares about acting shamelessly as long as one gets one’s way? As William Hazlitt observed, “Those who lack delicacy hold us in their power.”

But that works only so long as it works.

Pardon the tautology. What I mean is that it only works so long as the mob is in its freshet of hysteria. The trouble with Ford is that she is such a poor weapon of execution. It was supposed to be Ford in the bedroom with a bathing suit. And for 15 minutes it seemed that it might work. But then the assault faltered. It is now, I believe, disintegrating in a rancorous, pathetic puddle of hysteria.

Howls from the pack of wolves were still echoing in the wind when people began to ponder some facts of the case. Ford’s unsupported allegation that Kavanaugh groped her at a drunken party 36 years ago (or was it 35? she can’t remember when it happened) is edged with mistiness. Where did it happen? She can’t remember that either.

Ford didn’t mention the incident to anyone for 30 years—30 years!—when she told a psychiatrist about it in the course of couples therapy. Even then, the name “Brett Kavanaugh” did not occur. For his part, Kavanaugh, as well as the only other people identified as having been involved—Mark Judge and Patrick J. Smyth—have strenuously denied the incident. Jennifer Braceras has it about right, I think, when she offers two likely scenarios:

A woman is trying to sink a Supreme Court nominee whom she believes (rightly or wrongly) puts Roe v. Wade in jeopardy, and she will be hailed as a hero and a patriot, offered lucrative speaking engagements, and a named professorship at a prestigious university.

Or how about this: A young, intoxicated woman is pushed on the bed and groped by an equally intoxicated young man. More than three decades later, during marital counseling, a middle-aged woman mentions the incident without naming the assailant. Still years later, she fills in the blanks and, inaccurately, attaches the name of Brett Kavanaugh to that memory.

These alternatives, I note, are not mutually exclusive.

Back to that metanoia I mentioned above. Attending to the reaction to this bizarre species of politicized street theater, I suspect that a turning point may finally have been reached. I sense a widespread revulsion building, not just against the cynical deployment of Christine Ford, an obviously damaged soul (she was groped, or thinks she may have been groped, in high school by a fellow teen and it “derails” her life for “four or five years”?), but also against what has become of the confirmation process for Supreme Court nominees. The entertainment value can be high, it is true—I would not willingly have missed Cory Booker’s “Spartacus” performance, for example—but I think many people are disgusted with the angry travesty into which this process has degenerated.

After Brett Kavanaugh is confirmed, I hope that Senate Majority Leader Mitch McConnell (R-Ky.) and his colleagues will take the opportunity to revise the way the confirmation process proceeds. Henceforth, the candidate should meet in private with senators over the course of a few weeks. Then the Judiciary Committee should vote on whether the candidate should be put forward for a vote of the Senate. Then the Senate should vote. No public hearings. “Advice and consent” does not mean “attempted public execution.” In this sense, if the public revulsion against the intended destruction of Brett Kavanaugh fails, Dianne Feinstein and the pathetic Christine Ford may have done an inadvertent public service. I am not sure that they would then deserve our thanks, though (should this reform come about) the consequences of their actions would certainly merit our gratitude.

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Photo Credit: David Hume Kennerly/Getty Images

About Roger Kimball

Roger Kimball is editor and publisher of The New Criterion and the president and publisher of Encounter Books. He is the author and editor of many books, including The Fortunes of Permanence: Culture and Anarchy in an Age of Amnesia (St. Augustine's Press), The Rape of the Masters (Encounter), Lives of the Mind: The Use and Abuse of Intelligence from Hegel to Wodehouse (Ivan R. Dee), and Art's Prospect: The Challenge of Tradition in an Age of Celebrity (Ivan R. Dee).

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