On Saturday, the Senate finally voted on and confirmed Judge Brett Kavanaugh to the Supreme Court of the United States. The confirmation marks a historic turning point in the decision. The vote had been delayed since the Senate Judiciary Committee initially set September 20th as the date on which its members would vote. President Trump nominated Kavanaugh on July 9th, earlier this year.
The Senate was nearly equally divided on the vote, with 48 senators voting against Kavanaugh and 50 voting in his favor. This is certainly tighter than the 54–45 vote which occurred during Neil Gorsuch’s nomination.
Only one Democrat, Senator Joe Manchin, voted for Kavanaugh. Three Democrats joined the Republicans last year in voting for then-Supreme Court nominee Gorsuch’s confirmation. Senator Lisa Murkowski was the only Republican who did not vote in favor of Kavanaugh, instead voting “present”.
Around the beginning of the nomination process, Senator Rand Paul was seen as a possible swing vote among the other senators mentioned. Paul was concerned over Kavanaugh’s views on the Fourth Amendment but had later assured that after meeting with Kavanaugh, he had no more worries.
Trump immediately took to Twitter, stating: “I applaud and congratulate the U.S. Senate for confirming our GREAT NOMINEE, Judge Brett Kavanaugh, to the United States Supreme Court.”
The nomination process exemplifies a polarizing political landscape in America in which both sides no longer debate over ideology, but instead sling mud at each other. Personal attacks have become imminent, gradually undermining productive political discourse.
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I do not know who Casey Mattox is, but a June tweet of his popped up in my Twitter feed the other day:
A reminder that in a constitutional republic operating as it should, the decision of one man choosing to leave the 3rd branch of federal government should have virtually no impact on your day and none at all on your emotional state.
I rate this a perfect tweet. It is both concise and evergreen.
The Supreme Court of the United States is supposed to be the clear third of three branches of the federal government. The Judicial Branch is not supposed to make laws or give orders of any kind. Courts are meant to determine the constitutional legality of disputed actions between individuals and groups. The legislature legislates, the executive executes, and the judiciary judges. It’s not a difficult concept.
Unfortunately, bad-faith reading of the Constitution has resulted in a politicized court system in which many actually make the ridiculous argument that judges should conjecture what the consequences of a law will be, instead of simply reading the law itself, and rule based on those assumptions. SCOTUS Justices Ruth Bader Ginsberg and Sonia Sotomayor do not even try to hide their use of this method when writing decisions from the bench.
As outraged as everyone should be with the state of liberal jurisprudence, Brett Kavanaugh is not my ideal Supreme Court justice either. As Judge Napolitano has eloquently explained, Kavanaugh’s understanding of the 4th Amendment is wrongheaded and dangerous. If this were the case being made against Kavanaugh, I would be all ears.
Instead of criticizing the processes and actions of the federal government based on constitutionality, philosophy, and the individual human rights the United States of America was founded upon, hazy memories from many decades ago, that have conveniently resurfaced exclusively in their owners’ minds only as Kavanaugh’s illustrious career is set to culminate in the highest court in the land, are being used to railroad his confirmation.
The accusations made against Kavanaugh are unverifiable and uncorroborated within themselves. They are also immaterial to the situation at hand.
As someone who generally disagrees with but respects Ronan Farrow, I am shocked and disappointed that he agreed to publish something as salacious, hazy, and irrelevant as his September 24th story. Its publishing undermines the credibility of actual sexual assault victims and needlessly politicizes the #MeToo movement which the entire country, albeit to varying degrees, is generally supportive of.
The point of view of the Democrats regarding this matter deserves no consideration from honest and thoughtful people. They decided to vote against Kavanaugh as soon as he was nominated and almost entirely forewent asking relevant questions during his confirmation hearings. Instead, they delayed the process on the basis of arcane technicalities and focused on creating sound bites and video clips throughout the duration of an agonizing and embarrassing process. They have since done their best to capitalize on allegations against Kavanaugh to delay his confirmation even further, certainly hoping that they can run out the clock through midterm elections or at least keep Kavanaugh from being confirmed before the Supreme Court begins their October session.
GOP Senators now have a choice. They can allow the media and opposing political party to bully and shame them into submission, or they can grow a pair by taking a stand against a ballooning culture of hyperbole and hysteria.
The GOP Senators will set a historical precedent either way. The former choice would make it clear that loosely-characterized sexual assault allegations from decades ago are a political weapon they will not fight back against. This will be the end of the current GOP and likely the end of textualist jurisprudence in the Supreme Court for decades. The latter choice would promote the dignity of the accused and take the wind out of bad-faith political actors’ sails, at least for the time being.
I am not a Republican and have never voted for a Republican. I registered as a Democrat when I first became eligible to vote and will officially become a member of the Libertarian Party in 2019. If GOP Senators cave, they can bet that more and more of their constituents will join me in the LP or simply stay home and laugh as Democrats wipe the floor with them in November.
When word filtered out in the news earlier this week that an anonymous letter was submitted to Senator Dianne Feinstein making allegations that a younger Brett Kavanaugh (when he was somewhere around age 17) had committed a rather vile act of sexual assault, I am honestly upset about my first thought on the matter.
I thought, “Well isn’t this convenient.”
I should have never thought that because that is a little more than belittling and demeaning to the accuser. Regardless of some of the extreme lengths we have seen during the Kavanaugh hearings, mostly from what I can tell were people wanting their 15-seconds of “Blue Wave 2018” fame, I should not be so pre-judgmental about a severe allegation.
It takes a lot to say that, in this day and age. People often do not come out and say “I was wrong.” We’ve seen that filter down from multiple politicians, pop culture icons, and even the average person who is convicted and sentenced to prison for a heinous crime.
Granted, I never tweeted that thought out, nor posted it on social media. I try to think twice about the initial response I have to one line of information before doing that anymore. My initial Twitter statement came after Christine Blasey Ford revealed herself to be the anonymous source:
There is a whole lot to break down with the recent #Kavanaugh information but I'll leave these quick notes until I can go deeper: 1. Chrstine Blasey Ford is making an accusation. I'm not in to picking apart things like "how long" it took her.
2. Even not picking apart how long it was, it is something to consider in terms for Kavanaugh. Right now, its one accuser, one instance, when he was 17. 3. That doesn't take away from the fact that if there is truth to this allegation, it is serious, because she experience it.
4. Does that play a direct impact on there here and now? I don't know. I may think that if there was an established history of Kavanaugh doing this, but if there were he might not even have made it to where he's at (or maybe that is wishful thinking).
Shortly after I tweeted this, reading into more breaking news on the situation, I did realize something rather peculiar: thanks to a toxic political environment, we have become further divided by this story.
How so, you may be asking? Because I have seen multiple threads, heard multiple commentaries, and talked to multiple different people on the issue. And here’s been my takeaways:
If you do not give Ford the immediate benefit of the doubt, people look down on you.
If you mention that allegations are not facts, people automatically think you’re ok with the alleged behavior.
If you think both parties should testify, you’re advocating for Ford to get raked over the coals.
If you try writing off Kavanaugh’s alleged behavior due to his age, you’re hypocritical
If you suggest that Kavanaugh remains innocent until proven guilty, you’re part of the problem.
Now I’m not stating that everyone is having exchanges like this, but this is some of the interaction I ran into. I also ran into statements from ABC’s Matthew Dowd who tweeted:
Enough with the “he said, she said” storyline. If this is he said, she said, then let’s believe the she in these scenarios. She has nothing to gain, and everything to lose. For 250 years we have believed the he in these scenarios. Enough is enough.
I see this a lot today, and I believe it is creating a very fragile environment that we may want to think twice about. I retweeted Matthew’s comment with one of my own:
I'm sorry, Matthew. We live in a system where you remain innocent until proven guilty. It doesn't always work, but it is the fairest of the systems to ensure the accused is actually guilty, rather than just give the accuser the benefit of the doubt and assume the accused guilty. https://t.co/r9O0rtsTot
That statement from me did not even cover the fact that the “nothing to gain, everything to lose” argument doesn’t stand well when several big cases against men have come into the limelight well after the damage and prison time was inflicted finding that the accusers lied, whether through their own admittance or through new evidence finding. That’s why I have been so big on trying to remain sympathetic, but neutral, and not standing on a hill ready to crucify Kavanaugh, nor trying to delegitimize Ford.
This is where we now stand: Truth, in this matter, probably won’t ever be found out. The alleged incident happened some 30 years ago, as of yet there haven’t been additional accusers or other incidents alleged, the FBI already stated that they do not make any judgment regarding credibility or significance of allegations.
I really want to qualify that thought by saying this:
I take Christine Ford’s allegations seriously.
That does not automatically make Brett Kavanaugh guilty.
If there is truth to Ford’s statements, my mind has severely changed on my outlook of Kavanaugh, which wasn’t picture perfect in the first place, especially in terms of his judicial record surrounding the 4th Amendment, among other stances and views he carried.
But in all reality, all of this probably does not matter anyway. I think the damage to the case of Brett Kavanaugh is already done. It has become a “damned if you do; damned if you don’t” situation, and some people are happily taking a front row seat to either see Kavanaugh go down in flames or Ford go down in flames, and really both are going down in flames, and the media is dumping gasoline on the fire.
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I would like to share a few thoughts about the sexual assault allegations that Christene Blasey Ford is making against SCOTUS nominee Brett Kavanaugh. This is meant to be an analysis, not a summary, so I do not overtly describe the details of the allegation. But basically, she accused him of sexual assault against her when the two were teenagers. The bullet points below sum up an analysis of the situation.
Being 17 and drunk does not excuse sexual assault.
What constitutes sexual assault is not well-defined or well-understood. The lines between playing around, making a sexual advance towards someone, having a momentary slip in judgment, and earnestly attempting to force someone into a sexual encounter can be blurry. It is even blurrier for teenagers and was certainly even blurrier for teenagers of yesteryear.
As a socially liberal individual, I do not believe that government or public oversight of teenage sexual interaction is a good idea. Sex and human relationships are generally too complicated for third parties to be able to fully comprehend, so authorities should only be consulted in extreme circumstances. Otherwise, young people, as well as adults, should be free to take risks amongst each other.
As the alleged incident between Kavanaugh and Ford took place 35 years ago, we are long past the statute of limitations. This issue is about conduct and character, not the law.
Although our legal system places the burden of proof on the accuser and presumes non-guilt until guilt is proven beyond a reasonable doubt, this is irrelevant in the court of public opinion or SCOTUS nominations.
Believing someone is innocent until proven guilty is a value that I happen to share, but outside a court of law, it is a personal view, not a legal one. Reasonable people can disagree here.
The Sniff Test
Christene Blasey Ford is probably telling the truth, at least in part. There is some documented history of Ford discussing the matter in the past, and it is hard to imagine that she or anyone else would make up a story like this completely out of thin air.
Remembering the exact details of an event from 35 years ago is impossible for both Kavanaugh and Ford. Our brains remember certain details of our history, and our imaginations fill in the rest. This makes it difficult to accept either party’s version of the story without substantial evidence or witness testimony.
Emotion can also cloud our judgment as what we feel we experienced may not mirror what we actually experienced.
Ford’s lawyer Debra Katz defended Al Franken when he was accused of sexual misconduct, saying, “He did not do this as a member of the U.S. Senate.” This is obviously true, but, unlike Kavanaugh, Franken was an adult when his misconduct took place. Katz appears to be a partisan lawyer, not an impartial defender of the Constitution or human rights.
Ford is on the left-wing of the political spectrum, and thus, certainly has a political bias against a textualist judge like Kavanaugh.
Neither Katz’s nor Ford’s partisanship has any bearing on the accuracy of Ford’s story, but it does make them less credible.
Kavanaugh and Mark Judge, Kavanaugh’s friend also accused of assault, deny the allegations wholesale.
By all accounts, the alleged incident between Kavanaugh and Ford is in no way representative of Kavanaugh as a person. However, one’s generally saintly behavior does not negate one’s sins.
Senator Dianne Feinstein knew of Ford’s allegations before Kavanaugh’s Senate confirmation hearing but chose not to question him about it in any way. Feinstein is obviously using Ford’s story as a political weapon, which is shameful.
Regardless of how true Ford’s allegations are, Feinstein clearly timed the release of her name and story as a way to derail Kavanaugh’s nomination in the 11th hour. The Senate vote to confirm him is scheduled to finish within a week.
Democratic Senators have been against Kavanaugh’s confirmation since long before his confirmation hearings and put on an embarrassing and hysterical display of partisanship during them. This includes attempting to smear Kavanaugh’s assistant as a white nationalist for momentarily resting her hand in the “a-okay” position, which some in the media falsely describe as a racist dog whistle.
Senate Republicans can afford to delay the vote for at least another month without any risk of losing the Senate or their ability to confirm justices without any Democrat support in November’s midterms (though Senate Judiciary Committee rules may come into play here).
Up until Democrats blocked Ronald Reagan’s nomination of Robert Bork, there was little partisanship in these proceedings. Before Bork, the average SCOTUS nominee received 87% Senate approval and 49% were confirmed unanimously. Since Bork, partisanship in voting has dramatically increased, especially from Democrats.
Trump’s first SCOTUS nominee, Neil Gorsuch, had no allegations of misconduct of any kind. Yet, the Senate confirmed him by a slim margin of 54-45, and only three Democrats voted in his favor. Justice Alito received only four votes from Democrats in 2005. This shows that many Democrats are clearly in it for the politics, rather than justice or character.
Republicans have certainly become much more partisan too, refusing to even hold confirmation hearings for President Obama’s last SCOTUS nominee Merrick Garland, arguing that it is tradition to deny a lame duck president’s nominations until after ensuing elections.
It can be argued that 11th-hour sexual assault allegations to derail SCOTUS nominations sets a terrible precedent, but with as much partisanship as we are seeing now, the precedent has already been set.
The allegations against Kavanaugh should not be categorically denied, but should certainly not be believed at face value. Both Republicans and Democrats are playing politics, and it is unclear to me that Kavanaugh’s alleged discretions are so damning that he should be denied an opportunity to serve on the Supreme Court. If Republicans have a way to investigate the situation and still have time to nominate Kavanaugh before midterms, they should do so. However, it would be hard to blame them for proceeding as planned as there is nothing they can do to satisfy the Democrats short of leaving Justice Kennedy’s seat vacant until a left-wing justice is nominated.
President Trump could have avoided this mess by nominating Amy Coney Barrett instead of Kavanaugh. Besides being a far better judge, nominating a woman would have taken the #MeToo card out of Democrats’ hands.
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Brett Kavanaugh is a loss to liberty, but he is just a symptom to a much worse disease. That disease is the Supreme Court of the United States. Since Marbury vs. Madison, the Supreme Court has been used as a weapon for expanding government power, irreparably damaging individual liberty, and destroying local sovereignty. If the Supreme Court actually acted within its constitutional role, the nomination of Kavanaugh would not be a problem.
To start, the power of judicial review was not given to the Supreme Court by the Constitution. Rather, it was given to the Supreme Court by the Supreme Court itself. In the 1803 Marbury vs. Madison decision, Justice John Marshall gave the Supreme Court the power of Judicial Review, completely subverting the Constitution. By gaining the power of judicial review, the Supreme Court, a small collection of robed politicians, gained the ability to decide whether or not any and all federal/state/local laws are in accordance with the Constitution.
Needless to say, this power is immense. With there being eight (and likely soon to be nine) Supreme Court Justices, fewer than ten people have full control over whether or not your rights are protected. But the trend of the Supreme Court has been the disintegration of economic liberty and disregard for personal liberties.
While the fact that the Supreme Court can declare a law unconstitutional has done enough damage, the fact that the Supreme Court will write the law through judicial review adds insult to injury. Roe vs. Wade, for example, passed a federal law stating that state and local governments cannot make laws that restrict abortion. If Hillary Clinton was the president, imagine the damage to economic liberty, gun rights, and private property her nominees would do! While it is worth celebrating every win for liberty, we must remember that the Court should not be able to write the law. If you would not wish your worst enemy to have this power, you must not allow even your closest ally to have this power.
In other words, the Supreme Court is diametrically opposed to liberty. Eight people have more influence over your life than any other individual. The path of the US that the SCOTUS has sent it down is one of centralization and totalitarianism. Even the DC vs. Heller decision opened the door for “reasonable” gun laws. When the court has enough power to claim that a class of human beings are not people (see Dred Scott) or may be locked in concentration camps (see Korematsu), the court has too much power.
How to Stop Government Growth without the Supreme Court
“But what will we do to stop unconstitutional law?” some may ask. This answer has two parts. For one, the Supreme Court has only aided the effort to grow the federal government. Were it not for the jurisprudence of the Court, economic activity would still be considered a fundamental liberty (see footnote 4 in the United States vs. Carolene Products). If we abolished the Supreme Court today, the federal government’s greatest cheerleader would seek to exist.
Second, Thomas Jefferson and James Madison gave us the exact answer to this question. In the 1798 Kentucky and Virginia Resolutions, Jefferson and Madison made it clear that the federal government is inclined to grow and that it is the duty of the states to nullify tyrannical federal legislation. The Tenth Amendment grants a great degree of power to state and local government so that the people will have more power through localization. The Kentucky and Virginia Resolutions take that power to its logical conclusion: local and state governments have not just the right, but the duty to resist federal tyranny.
Whereas the Court is part of the federal government, it has no incentive to hold back federal growth. The people and local governments, however, have every incentive to do so. The Supreme Court is the enemy of local and individual sovereignty. It is far too powerful. Not only can it cancel a law (at any level, mind you), it can write the law. Liberty cannot be achieved when society is effectively owned by a handful of seemingly omnipotent politicians.