SLOAN | Glaring double standard undercuts Colorado Dems’ outrage over Kavanaugh

Author: Kelly Sloan - October 12, 2018 - Updated: October 11, 2018

Kelly Sloan

I wrote in this space, back in July, that the confirmation hearings for Brett Kavanaugh would descend into a Borking for the ages. Sometimes I regret always being right.

Herewith, a few thoughts at the conclusion of the business:

  • The whole squalid episode ultimately revealed little beyond the fact that the Senate confirmation process has devolved into ignominy, and even that is not much of a revelation. Long before this latest circus, it was highly questionable just what value was to be gleaned from vaudevillian Senatorial interrogations designed for no other purpose than to pry from the appointee a hint as to how he or she would be likely to rule on questions which they ought to approach as jurists rather than ideologues. Seldom, if ever anymore, is judicial philosophy seriously discussed. The last one to do so, Robert Bork, was denied a seat on the court and had his name transmogrified into a verb. Since then, the primary job of a Supreme Court nominee before the Judiciary Committee has been to try and convince everyone that he or she has managed to spend an entire legal career never once discussing with a colleague the constitutional enormities of Roe v. Wade.
  • There was, of course, a huge additional element injected into this particular nomination; the accusations levelled by Dr. Ford. Those of us who have worked with crime victims and have seen the impacts up close recognized both sympathetic commonalities and inconsistencies in her testimony. That’s not uncommon; details of traumatic events are often seared into the memory, but time has an abrasive effect, and 35 years is a long time. Meanwhile, false rape accusations, though relatively rare, are not unheard of – surviving hell does not automatically bestow sainthood. Consider too the fact that the monsters who commit such crimes do not simply “grow out of it” – and it seems extraordinarily unlikely that a true history of misogynistic desecration could evade the level of scrutiny aimed at Judge Kavanaugh. Nevertheless, whom you believed in this instance inevitably came down to individual predisposition. Fortunately, we live in a country where adjudication of such matters is not dependent on anything as arbitrary as that. The legalistic principles of due process, rules of evidence and so forth were developed over the centuries for precisely this reason. It was curious that many people who have been known to argue passionately that it is better to let 10 guilty men go free than to execute a single innocent one were at least as passionate in disqualifying and dishonoring Judge Kavanaugh on grounds not inherently credible.
  • That the mostly-ostentatious outrage was more political than principled was evidenced by its selectivity. That was as well-illustrated right here in Colorado as anywhere. Dutifully, Democratic leaders in the state, such as Gov. John Hickenlooper, House Speaker Chrisanta Duran, and Sen. Matt Jones, all denounced Kavanaugh under the aegis of the #MeToo movement, bound by whatever intellectual gymnastics they enlisted to establish his guilt. Paradoxically, none of them ever directed this outrage toward Denver Mayor Michael Hancock, who was accused not so long ago by a female member of his security detail of sexual harassment. Unlike the Kavanaugh accusation, there existed evidence, corroboration, and at least a partial acknowledgment of wrongdoing. Despite all of that, there was never the sort of general mobilization against Hancock, demanding impeachment or an investigation (which was never conducted, even at the pleading of the victimized officer), as was witnessed in the past few weeks against Kavanaugh.

The juxtaposition of the Democrats’ silence regarding the evidence-backed allegations against Mayor Hancock with the often vituperative rage generated by the unsubstantiated allegations made against Judge Kavanaugh are striking, but unsurprising given the cataclysmic angst displayed among the left at the prospect of losing guaranteed creative ability in the Supreme Court. One would think that such acts committed by a mayor of a major city would warrant an appropriately high level of consternation, but the fact is that a mayor lacks the socially transformative ability that has somehow been conferred to the SCOTUS, a fact of political, and therefore more immediate, concern.

Which brings us to the crux of the whole matter, and that is the elevated status of the Supreme Court. I’ve written about this before, so won’t belabor the point, but if Supreme Court justices would restrict themselves to their role – interpreting the Constitution and the law, not rewriting either – then the appointment of a replacement justice would not be cause for inflicting such deep wounds on the nation. The ongoing battle between legislative intent and judicial creationism has brought us to this point, lending comfort to the argument in favor of emphasizing the former.

There is always, of course, the political question; how will this impact the upcoming election? Indications are that anger over what is seen as politically motivated character assassination has galvanized Republicans, prompting them to turn out. The episode has stirred up Democrats too, but then they were already energized.

Sweeping up the pieces in the aftermath, we are left with the realization that the system ultimately worked, but in getting there disgraced itself. Moreover, we’ve probably not seen the worst yet. Oh how I wish I could be wrong for once.

Kelly Sloan

Kelly Sloan

Kelly Sloan is a political and public affairs consultant and recovering journalist based in Denver. He is also an energy and environmental policy fellow at Centennial Institute.