Challenges to respect in the Kavanaugh case



The fight over Brett Kavanaugh's confirmation as Supreme Court Judge was a peculiarly United States affair. But it raised wider questions pertinent to any society, including our own. Although these are too broad to explore adequately in a short article they deserve reflection.

Brett Kavanaugh is sworn in as 114th US Supreme Court Justice (Photo by Chip Somodevilla/Getty Images)The charge brought against Kavanaugh invites reflection on what past actions and allegations should disqualify a person from holding public office and particularly judicial offices. And in a society where increasingly traces of our past actions will be indelibly recorded, what scope should there be for remission and wiping the slate clean of past offences?

Kavanaugh's case involved a plausible but unproven allegation of sexual assault as a teenager. Had the allegation been brought to trial and Kavanaugh convicted, it would seem reasonable that he should be disqualified from high judicial office despite any reform of life in following years. The importance of good reputation in the office might override any personal growth. But to disqualify him on the basis of an unproven allegation would surely set a dangerous precedent for subsequent nominations.

The broader question of whether a good society should make people, whether rich or poor, future street sweepers or future judges, carry forever the taint of their youthful misdemeanours is more taxing. Social media allows our critics to retrieve more easily past actions of which we may have repented and is generally unrelenting in destroying our good name after uncovering them. Gentler values of compassion, tolerance and forgiveness, the lubricants of a good society, can easily leak away. What kind of a society will this harshness of judgment encourage?

The second question that bears reflection concerns the kind of campaign launched against Kavanaugh to prevent his confirmation and its implications for a good society. In it the Democratic Party was supported by popular movements with an ethical commitment to respect women by preventing sexual violence against them and defending women's right to abortion.

The campaign began by focusing on Kavanaugh's judicial record, but after Christine Blasey Ford's allegations were leaked and she made them public, it moved to destroy his reputation. The question concerns the implications for society if this second stage of the campaign becomes general and accepted.

This may be illustrated by a counter example. Suppose that in Australia a female former Labor minister and human rights activist was appointed to the High Court by a Labor prime minister who was pushing through controversial human rights laws. It is easy to imagine the ire of the Opposition, the campaign brought by their loyal shock jocks and the Murdoch Media, and the support given by various legal groups with their own ethical commitment to protect the law from political appointments.


"Ultimately in any society the relationship between executive, judges and the people needs to be based on mutual respect. In their absence no good process will suffice."


Then imagine that an invalid pensioner makes an unsupported but plausible allegation against her of earlier fraudulent behaviour that left the pensioner penniless. That becomes the focus of an attack on her character in order to force the withdrawal of her nomination. Pensioners' groups then are drawn into the campaign to stop the appointment.

Even if such a campaign failed it would leave mud and scars both on the complainant and the person nominated, deter good people from seeking office and diminish popular trust in the judiciary. It would also be detrimental to community groups that associated themselves with the campaign.

The point in both the Kavanaugh and the imagined case is that a serious allegation is made in a context in which it can neither be substantiated nor refuted but only barracked for or against, and is used to destroy the reputation of a political enemy. To use an unproven allegation in order to destroy a person's reputation is lacking in the respect which such groups demand for those whom they support. Might it not be damaging for society if movements claiming ethical motivation showed themselves ethically lacking?

The third broad question concerns the relationship between law and politics. These were inextricably and messily joined in Kavanaugh's nomination and confirmation. How should they be linked in a good society?

In democracies legislators and judges should each have their own independence: the Parliament making laws and the judges ruling on their application in the light of other laws. In practice, the relationship is necessarily more complex.

The political and other convictions of judges do affect the way in which they decide cases; governments often try to appoint judges that will receive their legislation favourably; legislators publicly criticise judges for decisions with which they do not agree, often appealing to the court of public opinion. In interpreting the law, too, judges necessarily apply texts written for another age and context to present circumstances, so arousing frequent controversy.

The Kavanaugh case raises questions of how judges should be nominated. His history was politically partisan, with a strong bias towards the protection of wealth, which I would regard as regrettable. The tendency to nominate compliant judges suggests at least that the executive should take care to nominate only judges who are held in high repute among their peers.

One might also question the value of confirmation hearings in Parliament. In this case a bitterly divided Senate ensured that the process was partisan and that both the judge after his election and the woman who accused him of sexual violence were wounded by it. But appointments made arbitrarily and non-reviewably by the Executive are equally open to bad outcomes.

Ultimately in any society the relationship between executive, judges and the people needs to be based on mutual respect. In their absence no good process will suffice. That respect is always threatened by an authoritarian executive that appoints compliant judges. It is also put under strain in polarised politics. Both threats were evident in the Kavanaugh case.



Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.



Main image: Brett Kavanaugh is sworn in as 114th US Supreme Court Justice (Photo by Chip Somodevilla/Getty Images)

Topic tags: Andrew Hamilton, Brett Kavanaugh, sexual assault



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Existing comments

Maybe the judge left his youthful indiscretions in the past where they belong. If people are incapable of repentance and changing their past lives to become exemplary citizens, there would be no Jesuits or St Paul, for example, and indeed we would have to de-canonise a hell-uv-a-lot of saints. The Trump style is nevertheless abominable.
john frawley | 18 October 2018

Thanks for a nicely balanced article. You make a point about what would have happened if Kavanaugh had been convicted in court.. but of course he had not been and on the evidence presented could not possibly have been! In addition it is worth mentioning his unblemished adult record of service to the Law, the public, his marriages, his family and even his Church.
Eugene | 19 October 2018

St Paul? Yep. The Jesuits? Yep. Ford? (vs) Kavanaugh? He, (Kavanaugh) is where he should be today, also because: Norma Leah McCorvey Nelson: (September 22, 1947 – February 18, 2017), better known by the legal pseudonym "Jane Roe", was the plaintiff in the landmark American lawsuit Roe v. Wade in 1973... Later, McCorvey's views on abortion changed substantially; she became a Roman Catholic activist in the pro-life movement...McCorvey's second book, Won by Love, was published in 1998. She explained her change on the stance of abortion with the following comments: I was sitting in O.R.'s offices when I noticed a fetal development poster. The progression was so obvious, the eyes were so sweet. It hurt my heart, just looking at them. I ran outside and finally, it dawned on me. 'Norma', I said to myself, 'They're right'. I had worked with pregnant women for years. I had been through three pregnancies and deliveries myself. I should have known. Yet something in that poster made me lose my breath. I kept seeing the picture of that tiny, 10-week-old embryo, and I said to myself, that's a baby! It's as if blinders just fell off my eyes and I suddenly understood the truth—that's a baby! I felt crushed under the truth of this realization. I had to face up to the awful reality. Abortion wasn't about 'products of conception'... It was about children being killed in their mother's wombs. All those years I was wrong. Signing that affidavit, I was wrong. Working in an abortion clinic, I was wrong. No more of this first trimester, second trimester, third trimester stuff. Abortion—at any point—was wrong. It was so clear. Painfully clear. Shortly thereafter, McCorvey released a statement that affirmed her reception into the Latin Rite of the Catholic Church, and she was Confirmed as a full member. (Wiki) Her final 'real' legacy to the world: Roman Catholic activist in the pro-life movement.
AO | 19 October 2018

This is a fair argument , as far as it goes. What is omitted is the display of inappropriate , insulting and injudicial behaviour and temperament repeatedly displayed by the nominee. He was the subject of the hearings, yet also attempted to turn the inquiry on those charged with conducting them. That was why , at least in part, the Bar Association called for more extensive inquiry during this late phase, and withdrew support, and presumably added to why the Jesuits withdrew their support then also. In the end the candidate proved himself not to have the appropriate judicial temperament for the US Supreme Court . He was appointed, and so contributes to an even more politicised Supreme Court, to the detriment of society.
jp | 20 October 2018


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