In defending the rule of law Aristotle argued that allowing a man to rule introduces an element of the beast. The introduction of Brett Kavanaugh to the US Supreme Court via the Senate Justice Committee proved just that. Millions of viewers throughout the world watched Kavanaugh sniff, snarl, and demonstrate conclusively that he is consumed by hatred for the Democrats and what they stand for.
He met allegations against him of sexual assault, made by an evidently frightened and credible victim, by portraying himself as the real victim; that is, of “a political hit” by the Democrats. He dismissed the accusation made by Ms Christine Blasey Ford as being simply the fruit of “millions of dollars in money from outside left-wing opposition groups”. He left no doubt that, although he had been a judge for a number of years, he was still driven by the attitude of a man who had worked in the Whitehouse, after assisting George W Bush to avoid a recount of votes in Florida and win the 2000 presidential election. Now he was Donald Trump’s man, and about to become his tweet.
Kavanaugh would not be the first official in an administration to be appointed to the Supreme Court, or to be appointed to exploit the Supreme Court for a political end. Franklin D Roosevelt packed the court in order to push through his New Deal after a national economic upheaval precipitated by the Depression devastated the American dream that a natural order of things could bring comfort and security to the American people. The difference with Kavanaugh’s confirmation is that his appointment is intended, among other things, to strip or compromise the freedom of American women over their own bodies after the Supreme Court had liberated them in 1973 in the case of Roe v Wade.
Republicans cynically formulated the issue before the Committee on the basis that Kavanaugh should be presumed innocent until he is proved guilty of sexual assault. However, he was not a defendant at a criminal trial. The real issue was not whether he was receiving criminal justice. It was – and remains – whether it would be proper for him to be allowed to dispense justice at all; and whether he is fit to do so in relation to the female half of America’s population. Kavanaugh’s demeanour disqualified him on both grounds. Regardless of the merits of the charge he displayed an utter lack of judicial gravitas. His behaviour disqualified him from ever being taken seriously as a judge. He was demonstrably evasive and disingenuous under oath. This threw doubt on his integrity.
The legitimacy of a court depends on its integrity, trustworthiness, its independence and capacity to dispense justice. The framers of the US Constitution held a conviction that tyranny could only be prevented and human rights preserved if no single man or group of men were allowed to accumulate power. To this end freedom was to be preserved by separating the power of the legislative, executive and independent judicial authorities, and by employing a system of checks and balances by each authority over the other. Kavanaugh was not confirmed in order to act independently or to bury any executive agenda that may deprive women of their freedom. He was confirmed to praise such an agenda.
A Supreme Court composed of two alleged sex pests (Clarence Thomas and Brett Kavanaugh) cannot be trusted to protect the rights and freedom of women in the US. When his nation was divided over the issue of fundamental liberty of slaves, Abraham Lincoln warned that the Union could not endure while only half of its people were allowed to be free. A Court constituted with Thomas and Kavanaugh cannot endure as the protector of freedom of the female half of America’s population.
Michael Donen SC is an advocate at the Cape Bar and a listed counsel of the International Criminal Court.