Rhetoric Referee: The Curious Kavanaugh Case

Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Brett M. Kavanaugh in the Justices’ Conference Room, Supreme Court Building. Mrs. Ashley Kavanaugh holds the Bible.
Credit: Fred Schilling, Collection of the Supreme Court of the United States. Source: WhiteHouse.gov

To wrap up the last two postings, the controversy over the nomination of Justice Brett M. Kavanaugh to the U.S. Supreme Court provided high political drama just weeks before the mid-term elections.

Americans generally don’t understand judicial theory and philosophy, but they do understand politics, at least as far as their teams go. The winning team in the presidential election gets to appoint federal judges, including justices, with what the Constitution calls the “advice and consent” of the Senate.

Since the 1980s, Republicans have been trying to turn away from what they call “activist judges” and appoint “originalists” who look to the letter of the law and the Constitution rather than attempting to enforce broad social policy through the courts. Democrats tend to prefer courts that will interpret the laws in the context of current political and social issues.

Thus when then-Judge Brett M. Kavanaugh, an originalist whose appointment would secure a 5-4 conservative majority on the  U.S. Supreme Court, was nominated in the summer before the midterm elections, it became a political race against the clock. With a narrow Republican majority in the Senate, Democrats sought to delay the vote on the appointment until after the midterms in hopes they would gain a majority. Republicans pressed for a speedy vote, partly to get the new justice on board in time to hear arguments at the beginning of the session, but mostly because they were uncertain they’d hold the Senate and be able to approve him in a lame-duck session.

Beyond his judicial conservatism, Democrats had many reasons to dislike Kavanaugh for political reasons. He had served as associate to Independent Counsel Kenneth Star and written much of the so-called Starr Report about the Bill Clinton-Monica Lewinsky sex scandal; he worked on the George Bush legal team regarding the Florida recount in 2000; and was a key player in vetting Bush’s judicial nominees, including Chief Justice John Roberts.

The Democrats’ first attempt to run the clock was to demand, in addition to his court rulings, documents from his time as White House secretary under President George W. Bush, who had appointed him to the D.C. Circuit. When, late in the game, some 42,000 pages of documents were released, Democrats complained that they had no time to review them before a vote and requested that the vote be postponed.  When that was denied and the Republican-led Judiciary Committee pressed on with the nomination, Democrats pulled the pin on a grenade that they’d apparently been holding onto for three months.

In July, even before Kavanaugh’s name appeared on the short list of potential nominees, Christine Blasey Ford, a psychology professor at Palo Alto University, contacted the Washington Post and her congresswoman, Rep. Anna Eschoo, D-Calif., with a report that Kavanaugh had sexually attacked her during a drunken high school party in the 1980s. Fearing retribution, Ford demanded that she be kept anonymous, but she met with Eschoo, who was convinced of her credibility.  Eschoo referred the matter to Sen. Diane Feinstein, D-Calif., ranking Democrat on the Judiciary Committee, who honored Ford’s request for anonymity and did not bring the accusations up during the committee hearings.

In mid-September, with a vote on the nominee expected at the end of the month, an online news organization reported that Feinstein was withholding a report from fellow Judiciary Committee members. Feinstein then forwarded the letter to the FBI. The resulting news reports eventually forced Ford to go public with her accusations. She and Kavanaugh both had a chance to testify before the committee in a dramatic extra day of hearings on Sept. 27. The next day,  Sen. Jeff Flake, R-Arizona, asked to postpone the vote for an additional week so the FBI could investigate Ford’s claims. This was granted, but apparently the FBI was unable to confirm the claims within the time allotted. The Senate approved the nomination on Oct. 6 in a party-line vote.

The testimony has been thoroughly rehashed and books are already in the works, so there’s no need to revisit that. What’s interesting here are the rhetorical strategies used in this campaign.

I suspect that the whole thing was never intended to go this far, that the politicians involved hoped that the anonymous charges would either force the nominee to withdraw (or be withdrawn) or justify a further background investigation that could delay the vote until after the midterms. When the accuser went public, things spun out of control. Compounding the matter were copycat accusers, anonymous and named.

On the day Kavanaugh was sworn in, one of my Facebook friends, apparently a Democrat, posted how disappointed she was — hashtag BelieveSurvivors. This illustrates the full transition of changing the subject from the Federalist Society (see previous post) to an assumption of guilt regarding men accused of sexual improprieties. The public doesn’t get excited over judicial philosophy. It does get excited over partisanship, and much more so over sex. Sex is, well, sexy.

When the subject-matter bottle was spun, it ended up pointing to hashtag BelieveSurvivors. If that’s the bottom line of the whole ugly mess, here’s how I believe survivors:

  • I believe survivors have the right to be treated fairly and honestly by the politicians they entrust with their personal concerns.
  • I believe survivors should not be exploited by politicians.
  • I believe survivors and those they accuse have the right to due process, including the right to produce and cross-examine witnesses, in a court of law and not in the court of public opinion.

A footnote on believing survivors: In early November, at least one “Jane Doe” complainant admitted to the Judiciary Committee that she had fabricated an anonymous report of sexual assault against Kavanaugh. She was referred to the Justice Department for making false statements. 

 

 

Rhetoric Referee: Ad hominem

When the law is on your side,  argue the law.
When the facts are on your side, argue the facts.
When neither the law nor the facts are on your side, call the other lawyer names.

— Anonymous

I try not to address political topics in the heat of the moment, so forgive me for delivering old news. Earlier this month we added a new justice to the United States Supreme Court. The final days of the process were tense, angry and partisan — and give us good examples of two rhetorical techniques known as ad hominem attacks and changing the subject.

Justice Brett M. Kavanaugh replaces retired Justice Anthony M. Kennedy, for whom he clerked early in his career. Kennedy, who was considered a swing vote on many of the court’s 5-4 decisions in recent years, was nominated by conservative President Ronald Reagan in 1987 and unanimously approved by the Senate in 1988.

It’s tempting to say that those were the good old days of civility and “advice and consent” by the Senate, which at that time required a two-thirds majority to approve judicial nominees. The truth is that Kennedy was uncontroversial only in comparison to Reagan’s first nominee to replace the retiring moderate Justice Lewis Powell (also a swing vote) — conservative Judge Robert Bork.

Judge Robert Bork
Judge Robert Bork is best remembered today as the subject of ad hominem attacks when he was nominated to the Supreme Court — a technique now known as Borking. Source: Federalist Society

In his legal philosophy, Bork was considered an originalist: He interpreted the Constitution to be applied as it was written without modern conclusions such as an implied right to privacy, a key element of the Roe v. Wade decision that applied abortion law nationwide instead of as one of the laws not enumerated in the Constitution and thus reserved to the states.

Democrats and others feared that this approach would lead the court to overturn Roe v. Wade, and thus opposed Bork on ideological grounds rather than his qualifications. Sen. Edward M. Kennedy, D- Massachusetts, delivered this famous speech within an hour after the nomination:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.

Other senators, including Judiciary Committee Chairman Joe Biden, D-Delaware, opposed Bork on his legal philosophy, saying that originalism was at odds with modern interpretations that a right to privacy exists beyond the text of the Constitution.

The committee voted 9-5 against Bork, who was expected to withdraw his nomination before a full Senate vote. He didn’t, saying instead:

There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.

Bork’s nomination was rejected in the full Senate, 58-42, but the attacks on the man rather than his qualifications have given us a new name for such ad-hominem attacks, especially in political appointments, that has lasted three decades: to Bork.