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Friday, December 14, 2018  Spokane, Washington  Est. May 19, 1883
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Jennifer Rubin: Why Brett Kavanaugh should not be confirmed

Many of the arguments made by Judge Brett M. Kavanaugh’s supporters are illogical or downright wrong. So many, in fact, that one is tempted to confuse bad-faith or amateurish arguments against recent allegations (e.g., “there is no evidence against him” – as if completely credible victim testimony under oath, prior statements and a polygraph don’t count) with arguments against his confirmation. The two are not the same. His supporters’ arguments – an illogical and unproven assertion that this is a left-wing smear – may be laughable but are not in and of themselves reason to reject him. They are, however, evidence of the intellectual collapse of the right. We’ll address that in a moment.

The reasons for rejecting Kavanaugh include the following:

1. Christine Blasey Ford’s testimony was entirely believable and consistent with her prior statements, her insistence on an ugly home remodel to soothe her fear of being trapped, her polygraph, Kavanaugh’s own July 1 calendar entry (noting beer drinking with other teenagers present on a night that could well have been the night of the attack) and a deluge of evidence from high school and college of his excessive drinking, which remains the constant thread through his accusers’ accounts. A single witness can be sufficient to convict someone; a horrifying job reference requires an applicant’s rejection.

2. Kavanaugh’s apparent refusal to welcome an FBI investigation and testimony from Mark Judge to clear his name is among the most significant reasons for rejecting him. Moreover, his willingness to disregard evidence and his repeated misstatements (insisting that others at the party denied the attack occurred when they only couldn’t recall it, falsely asserting Judge had provided sworn testimony, slippery denials of drinking and a laughable explanation of a crude sexual innuendo about a classmate) not only argue against innocence but also show his nonjudicial mindset, one in which small misstatements and misinterpretations of facts are used to get a desired outcome.

3. The availability of other information that could lend support for Ford’s account may very well come up after confirmation. If Democrats retake one or both houses in November, they will be able to investigate, subpoena witnesses and conduct their own inquiry. The result will be a cloud over the Supreme Court and possible impeachment hearings. Bar complaints will be filed as well. Kavanaugh has not cleared himself but rather undermined faith in the judicial system that presumes that facts matter. It’s very possible a Democratic president and Congress would seek to pack the court by expanding the number of seats.

4. Kavanaugh’s anger and, more worrisome, his baseless assertion of a political smear inspired by the Clintons(!) and his anger toward Democrats reveal his partisan core. No Democratic claimant or party going before him can have confidence he will deliver an impartial ruling. His rudeness to senators, especially to two women, violated every norm of judicial conduct one can imagine. It is impossible to believe he would recuse himself in any matter involving President Donald Trump and very easy to imagine him taking the president’s side in claiming the Russia probe is part and parcel of the same left-wing conspiracy he thinks tried to defeat him. One can say, Well, he had every reason to be upset. That is why only a select few should be chosen for the court.

And yet with Sen. Jeff Flake’s, R-Ariz., predictable retreat into partisan conformity, Kavanaugh will be headed for the court. The day after a gut-wrenching and at times infuriating display by elected leaders and a Supreme Court nominee, one might be left despondent. Can a temper tantrum by an all-male majority of the Judiciary Committee stifle a victim just as surely as a hand over her mouth? For now, yes. Has the GOP irrevocably given up on any semblance of fidelity to conservative values – respect for truth, comity, civility, decency, fairness? For now, yes. Have we seen a frightful episode of white male anger determined to prevent non-white-males from depriving them of their due? For now, yes.

But let’s not fall victim to despondency. Ford was a shining example of bravery. Even her GOP antagonists found her credible. Kavanaugh pulled back the curtain on the nasty truth that the Supreme Court is now about power politics; clarity is important, albeit disturbing. This episode, one hopes, will intensify a massive backlash building against Trump and Trumpism, against the politics of irrationality and bravado. With more women than ever in Congress and a new majority in one or both houses, we may get some real oversight and return to checks and balances.

As for “conservatism” these days, the term seems to have lost all meaning. It repudiates not only free markets and immigration, international leadership, science and the rule of law, but also the habits of mind and the norms of civil behavior that a democratic republic requires. It’s not so much that the GOP has collapsed but that anything resembling an intellectually solid conservative movement has disintegrated. These people are all about power. Kavanaugh is not an umpire but an operative able to select facts, shade truth and evade troubling data to reach a conclusion that his side wants. That’s the image of the left that conservatives used to hold. They’ve become what they loathed.

For those who can only look on in horror at our politics, the issue is no longer “What are you?” (Republican/Democrat/independent, conservative/center-right/progressive); it is “What do you believe in?” If truth, decency, rationality, the rule of law, respect and empathy are your core values, find the people who exemplify those qualities and work to build your politics around those values. Politics, after all, is nothing but the public expression and implementation of values.

So the solution, as always, rests with the voters. Election Day can vindicate the values we saw trampled this week. They can bring fresh faces and new voices. America is not a lost cause, not yet.


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