Supreme Court confirmations weren’t always such a close-run thing.
As Justice Ruth Bader Ginsburg pointed out in criticizing the conduct of the Kavanaugh hearing, her own confirmation (1993) was supported 96–3, and Antonin Scalia’s (1986) by 98–0, that is, by large bipartisan majorities, although they differed strongly in their approach to the Constitution itself.
They were also known to be good friends, their fundamental differences notwithstanding. The hearings were formal and decorous. Between those two confirmations, though, two other hearings of judges nominated by a Republican president were highly partisan and bitter, those of Robert Bork (1987, rejected 42–58) and Clarence Thomas (1991, confirmed 52–48).
According to legal scholar Alan Dershowitz, who, like Ginsburg, is a liberal Democrat, the Kavanaugh hearings were worse than those for Bork or Thomas, wrecking the judge’s whole life and family, an example of “sexual McCarthyism.”
Sen. Lindsay Graham (R-S.C.) said of the hearings, “This is the most unethical sham since I’ve been in politics.”
Sen. Chuck Schumer (D-N.Y.), Graham noted, had said he would oppose the nomination with everything he had, 23 minutes after the nomination was announced. Sen. Bernie Sanders (I-Vt.) did the same within 24 hours, long before hearings were even scheduled. Others have likened the proceedings to a witch-hunt, character assassination, a circus, mob rule, McCarthyism, a moral panic, and ritual defamation.
What is going on? One explanation is simply the high stakes in this case.
The effect of the long liberal hegemony in the court on social issues has been their removal from the democratic process in favor of rule by a handful of justices, all from a very narrow and elite social circle (i.e. Harvard and Yale law schools).
The people lost the right to resolve some of the most difficult and consequential issues, deprived by the court of the ability to decide on the nature of marriage or the right of the unborn child to legal protection.
As former Sen. Tom Coburn of Oklahoma, a former member of the Senate Judiciary Committee, observed: “In our system, the Supreme Court was never designed to be the final arbiter of every difficult and controversial question in American cultural and political life …. The stakes were never meant to be this high.”
The effect of the court’s usurping the right of the people to make such decisions through the democratic political process has been to politicize the court, to make contested issues such as these, dependent not on the Constitution but who sat on the Supreme Court.
Nearly every gain for social liberalism or the sexual revolution in the past 50 years came not through elected legislators, but was dictated by the Supreme Court.
Now that liberal domination of the court is threatened, Democrats and their backers in academia, the media, and law, are going ballistic. They showed during the Kavanaugh hearings how far they would go to block the confirmation of any nominee who failed to toe the liberal line in these matters.
In this effort, feminism, identity politics, and the weaponizing of victimhood—first on elite campuses and spreading through key sectors like Silicon Valley and the media—have found great success.
Adherents have built their power by means of personal and relentless attacks, not only on serious and real perpetrators like Bill Cosby or Harvey Weinstein, but on anyone who questions or transgresses the new orthodoxy in even the mildest way.
The particular method of attack isn’t unique to the Kavanaugh hearings. It was used to “Bork” other nominees, such as Bork himself and Thomas, and in social-media campaigns against offending individuals such as Brendan Eich of Mozilla and James Damore at Google, as well as innumerable faculty members across the country.
None of these people was accused of anything illegal. They simply expressed opinions that were considered “insensitive,” which was enough to make them scapegoats who had to be cast out in order to restore ideological purity and unity of belief.
But in the case of Kavanaugh, the attack method of ritual defamation was taken to new depths.
In 1990, a Kansas civil-rights advocate, Laird Wilcox, identified eight key elements of the process that he called “ritual defamation.”
“The primary goal of a ritual defamation is censorship and repression,” he wrote. The method of attack “is to assail the character of the victim, and never to offer more than a perfunctory challenge to particular attitudes, opinions, or beliefs expressed or implied. Character assassination is its primary tool.”
It is important to the method to “avoid engaging in any kind of debate over the truthfulness or reasonableness of what has been expressed, only condemn it.” Rather, there are efforts to mobilize others to engage in the defamation and to pressure and humiliate the victim. “If the victim has schoolchildren, they may be taunted and ridiculed as a consequence of adverse publicity.”
All this and more was heaped on Kavanaugh. When the entirely uncorroborated allegations of sexual abuse seemed to be foundering, the Democrats on the Judiciary Committee and their supporters in the media switched to an emphasis on his deportment in addressing the committee itself.
Like Thomas before him, he responded to the relentless smearing of his name before the world, and the devastating effect of the particular slanders on his family, by angrily defending his reputation. It was like baiting a bear beyond endurance and then criticizing him for getting angry.
As Sen. Orrin Hatch (R-Utah) and others pointed out, if he had remained completely cool and detached, he would have been accused of being monstrously callous in the face of the grave offenses he was accused of.
As Kavanaugh himself pointed out, his judicial temperament should be judged on the basis of the kind of judge and person he had been for his entire 28-year legal career: “hardworking, even-keeled, open-minded, independent, and dedicated to the Constitution and the public good.”
The politics of personal destruction has proved very effective in enforcing conformity to secular-liberal dogma and shutting down discussion and debate of alternatives. But have the Democrats overreached in this hit job?
The Republican base has been fired up by what it sees as a cruel and deeply unfair confirmation process.
How this plays out in the midterm elections remains to be seen. The outcome may deter or encourage the Democrats in their pursuit of character assassination and ritual defamation in the next hearing for a Supreme Court nominee.
Will the Democrats conduct themselves more professionally and ethically in future hearings? Or have we just seen the pattern of future hearings and a dress rehearsal for an even more unrestrained and chaotic impeachment process?
Paul Adams is a professor emeritus of social work at the University of Hawai‘i and was a professor and associate dean of academic affairs at Case Western Reserve University. He is the co-author of “Social Justice Isn’t What You Think It Is” and has written extensively on social-welfare policy and professional and virtue ethics.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.