While we await the FBI’s seventh investigation into Judge Brett Kavanaugh’s background, some considerations:
All four of Christine Blasey Ford’s witnesses to a party where he allegedly attacked her deny the party ever happened. The first narrative having run its course, the Democratic War Room spun out another dubious claim of sexual assault. The second accuser, a Never Trumper, admitted to memory “gaps” from being drunk at the time.
A third accuser, Politico reported, “had a restraining order filed against her” in 2001 in Miami.
Disbelieving in right and wrong, the Left is unembarrassed by its attempt to derail Kavanaugh’s nomination to the Supreme Court. Post-modern Leftists are the children of Greek sophists, who 2400 years ago denied the existence of objective truth. Said Jacques Maritain, “Sophistry is not a system of ideas, but a vicious attitude of the mind.”
The Left believes an inquiry based on due process superfluous. Cultural Marxist trials echo Soviet show trials. A “narrative” wins if the accuser belongs to a group that had less power in the past than the accused’s group. The Left demands Ford win outright by virtue of her status as a woman
The American Left promised utopia through subjectivity in the 1962 Port Huron Statement of Students for a Democratic Society, whose best known author was Tom Hayden, later a California state senator. The Left then marched through the cultural institutions of schools, media, and churches. Public inquiry degenerated into an urgent declaration of feelings. Pathos is everything, ethos and logos, not so much. “Truth” is subjective.
Our justice system reflects the Christian view that men are fallen and wicked creatures. The Founders knew the Mosaic Law teaching against the everyday practice of “bearing of false witness.” Appreciating that triers of fact are not omniscient, the Anti-Federalists, led by Patrick Henry and George Mason, insisted upon a written Bill of Rights.
While Kavanaugh and Ford are not contending in a criminal trial, the underlying charge is criminal, and basic precepts of a fair proceeding attach. The accused is entitled to a presumption of innocence, to know who one’s accuser is, to confront the accuser, and to do so in public.
No Star Chambers.
In 1788, a pseudonymous Anti-Federalist author, “Brutus,” warned that eventually the Supreme Court would become judicial dictators. He wrote, “The Supreme Court under this constitution would be exalted above all other power in the government, and subject to no control.” The author foresaw that justices would grab power properly belonging to the political branches.
My UC-Berkeley constitutional law professor, Dean Jesse Choper, did not include the Constitution as assigned reading. He realistically taught that “the U.S. Constitution means whatever the justices say it means.”
This must cease. We must return to the Founders’ design of the unelected Supreme Court as the weakest branch of government. Justices are supposed to be fair umpires, judging carefully by interpreting written law. If there is none, a gap should be filled with the narrowest possible ruling.
Leftists want Supremes ruling for life to create utopia. Without the Constitution’s limiting text, the justices have issued decisions contrary to tradition, custom, and reality. A handful of unelected justices have imposed their social views on a disparate and resentful nation. Political issues should be left to Congress or to the states.
We need a restoration of the Constitution. If the text does not grant government a power, then it may not exercise it. For too long, “conservative” justices have acquiesced in previous power grabs with a ratchet effect. When the Left has a Supreme Court majority, they legislate. But when traditionalists gain a majority, instead of reversing the Left’s past outrages, valuing prudence they instead preserve a bent status quo. Culture decays, and liberty is lost.
Judge Kavanaugh promises to continue judging only. He should be confirmed.
Scott Feldmann is a Partner in a 102 year-old national law firm. His law, management, and engineering graduate degrees are from UC-Berkeley School of Law, the University of Southern California, and the Air Force Institute of Technology, respectively.