Posts Tagged ‘Supreme Court’

For the record

September 26th, 2018

Under the heading of “boys will be boys”, of which we are hearing so much lately from the ostrich wing of the Republican party, I would like to offer my testimony. In my teenage years, I did my share of stupid, impulsive things.  I drank and took drugs, often at the same time.  I behaved towards a few young women in ways of which I now feel ashamed.  But I never:

a) turned up the music, pinned a girl to the bed, put my hand over her mouth, and attempted to remove her clothing despite her resistance;

b) stuck my penis in a drunk girl’s face when she wasn’t expecting it, or, for that matter, even when she might have expected it;

c) or did anything remotely like either of the above;

d) or knew anyone who did.

Frankly, the idea that such actions may be considered in the light of normal boyhood indiscretions is offensive, and says more about the morally and spiritually impoverished milieu of the people who believe it, than about the nature of masculine youth in America.  We absorb a lot of toxic ideas and behavioral models when we are kids, no doubt about it.  But the notion that acts of sexual assault and rape are a normal part of the personal behavioral experience of young American males is false and obnoxious.  The perpetrators exist, but they are a small minority.  Their behavior is a distorted reflection of the mainstream, not normative for it.  Part of the tragically disjunctive experience of men and women growing up in this society is that the worst aspects of oppression impact a disproportionately large number of women – most of them – while being committed by a disproportionately small number of men.  I do not mean to excuse complicity with the evil, which is a thing most men do, in fact, have to answer for.  But there is a morally significant difference between passive complicity and overt action.

That said, if Kavanaugh did what he is alleged to have done, I am not sure that automatically disqualifies him.  The allegations concern things that happened decades ago, and there does not seem to be a pattern continuing into the present.  Maybe he no longer is that person.  No: if he did what he is alleged to have done, he is disqualified not by the acts he committed, but by his denial of them.  Do we want to hire a judge who lies to get the job?  Of course not!

This is a job interview, not a court proceeding.  We are not dealing with burdens and standards of proof, we are dealing with the decision whether to hire a person for a lifetime appointment as the nation’s highest authority on what the law says.  So perform a thought experiment.  Say you’re hiring a babysitter.  You’ve got a nice middle aged person who wants the job, a little strict perhaps, maybe with some ideas that don’t jibe entirely with yours about child-rearing, but overall seemingly someone who likes kids and could do the job.  (I’m purposely slanting this in favor of the candidate.)  You check this person’s references, most of which are glowing; but then you hear from someone not listed on the candidate’s resume, a person by all appearances disinterested and credible, who hired them as a babysitter many years ago and came home from the movies to discover bruises on the kid.  You confront the candidate with this.  The candidate denies it.  I don’t know about you, but I’d thank them for their time and look to hire somebody else.  Why take a chance, if you don’t have to?

 

Gag me with a Grassley

September 19th, 2018

A few thoughts on the farce now playing out around the allegations against Brett Kavanaugh:

It’s a job interview, not a prosecution.  Regardless whether there’s enough evidence to convict, would you hire the guy against whom there is a credible allegation that he assaulted somebody sexually a long time ago, or would you thank him for applying and then broaden the search?

Is it possible that there exists a professionally qualified Republican conservative (those being the minimum requirements for an applicant, at present) who is not subject to credible accusations of serious wrong-doing?

What is the point of setting up a he-said/she-said confrontation between Kavanaugh and his accuser, as quickly as possible, without any effort to investigate independently or to hear from other witnesses?

All of the above questions are entirely beside the point, since the sole objective is to appoint someone hostile to Roe v. Wade before the midterms.

At last Clarence Thomas will have a kindred spirit sitting beside him on the bench.

Pakistan, bastion of democracy

November 14th, 2010

With the release of the indomitable Burmese freedom fighter Aung San Suu Kyi from house arrest, one’s thoughts naturally turn to the health of our own democracy.  (Yes, it really is all about us.)  Much too big a subject to venture an opinion on, as the veterinarian said about the whale.  However, one might observe symptoms.  I’ve been thinking about Justice Stephen Breyer’s recent remarks concerning the Supreme Court’s decision in Bush v. Gore, which resulted in curtailment of the 2000 presidential election and George W.’s disastrous tenancy of the White House.  Breyer implausibly denies that it was a politically motivated decision, and congratulates the country on having knuckled under to it.  The irony of purporting to preserve the rule of law by acquiescing in lawlessness seems to have escaped him.  Admitting that this was perhaps the worst decision since Dred Scott, Breyer posits that the alternatives were to accept Bush’s accession to power, or to take to arms, and he is glad that we didn’t do the latter.

Of course, there was a third option – nonviolent civil disobedience.  Lawyers could have refused to practice in a blatantly politicized Supreme Court until the “Justices” responsible resigned the positions they had disgraced.  Lawyers could have demonstrated outside the Court until it was cleansed from within.  In Pakistan, that is what lawyers did when the independence of their judiciary was on the line.  They shut it down.  American lawyers could have done the same.

Of course it would have been utterly unrealistic to expect that modern American lawyers would demonstrate their commitment to the role of an independent judiciary, to the institutional underpinnings of democracy, and to the rule of law in such a manner.  For American lawyers such commitments are mostly superseded by their ethical obligations to pursue to the exclusion of nearly any other consideration their clients’ interests, narrowly conceived in terms of pecuniary gain or loss and advantage with regard to the specific rights at issue in the instant litigation.  American lawyers do owe a theoretical allegiance to the rule of law and integrity of the judicial process, but refusing to acknowledge the authority of a corrupted court is not something they teach you to do in law school as a means of implementing this.

The end result is that Antonin Scalia, may he grow like an onion with his feet in the air and his head in the ground, will serve out his term with all the honors that normally accrue.  Meanwhile, I wonder whether the life has left our legal system.  Two hundred years or so ago, back when John Marshall, who merited the title of Justice, was inventing such things as judicial review, our legal system was animated by the necessity of creating its own place in a newly evolving system of government and ordered liberties.  More recently, in Pakistan, the lawyers showed what it means to love the law.  In modern America, not so much.  Our legal system has found its place and is quite comfortable in it, thank you.  I wonder if our inability to think outside that box, much less act upon such thoughts, signals a final sclerosis, the rigidity of decadence.