Changing the subject

Rhetoric Referee: The Curious Kavanaugh Case

· October 23, 2018 · Rhetoric Referee, Thinking out loud · , , , · No Comments

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: Changing the Subject

· October 22, 2018 · Rhetoric Referee, Thinking out loud · , · No Comments

The nomination of Supreme Court Justice Brett M. Kavanaugh (see previous post) gave opponents an opportunity to use two tried-and-true (or perhaps false) rhetorical techniques: ad hominem and changing the subject.

The real subject of this nomination fight was whether the Supreme Court should seek to expand the law of the land under modern interpretations, or restrain itself to the original rules as written into the Constitution, which reserve rights to the states and the people.

The Constitution established three equal branches of government: the legislative to create the laws; the administrative to administer and enforce them; and the judicial to determine whether the laws and their enforcement are valid and consistent with existing law and the Constitution. If not, the court may direct the administrative branch to enforce a law differently, or sometimes force the legislative branch to write new law that would be valid.

During the tumultuous 1950s, ’60s and ’70s the Supreme Court’s role began to change, especially under chief justices Earl Warren (1953-1969) and Warren E. Burger (1969-1986). It expanded civil rights and civil liberties — and federal and judicial power by, among other things, declaring its rulings on those matters the law of the land. Nixon appointee Burger was a conservative and critic of the Warren court, but nevertheless joined the majority in 1973’s Roe v. Wade case in finding an implied right to privacy in the Constitution that prohibited states from banning abortions.

President Ronald Reagan elevated Associate Justice William H. Rehnquist, the most conservative member of the Burger court, to chief justice in 1986. Like fellow Reagan nominee Judge Robert Bork, Rehnquist was considered an originalist, a jurist who looked to the original meaning of the Constitution and the laws rather than interpreting them to reflect current existing conditions and norms. Rehnquist held to a legal concept of federalism that in relied on the Tenth Amendment, which reserved any rights not enumerated in the Constitution to the states or to the people.

federalistlogoThis school of thought, which became more prominent in the 1980s, gave rise to the Federalist Society, which describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order. We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

All five of the nine sitting Supreme Court justices appointed by Republican presidents  — Chief Justice John Roberts (George W. Bush, 2005), Clarence Thomas (George H.W. Bush, 1991), Samuel Alito (G.W. Bush, 2006), Neil Gorsuch (Donald Trump, 2017) and Kavanaugh (Trump, 2018) — have Federalist Society credentials. The Roberts court has, of late, consistently ruled based on narrow interpretations of the law rather than broader issues of social policy.

Opponents who think of the Supreme Court as a superlegislature often argue that a conservative court “will vote to overturn Roe v. Wade,” but that’s not how courts work. Courts rule on the facts of a specific case, based on existing law and precedent. During their nomination hearings, both Gorsuch and Kavanaugh said Roe v. Wade is settled law. It won’t change, no matter how much liberals may fear it will or conservatives may want it to.

People don’t understand legal procedures or judicial policy, but they do understand the drama of politics. When the Kavanaugh nomination process seemed to be proceeding smoothly, opponents changed the subject at the last minute to something more dramatic, and started attacking the man rather than his judicial philosophy. They changed the subject — twice.

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