Institutions, like individuals, could be fragile. Their fragility is dictated by several factors, chief among which is how their function is perceived by those whom they are intended to serve. The confirmation hearings of Judge Kavanaugh, nominated by President Trump to the Supreme Court, constitute a historic case on the decline of public perception in the US of that co-equal branch of the American government.
Article III of the U.S. Constitution provides in its Section I that "The judicial power of the United States shall be vested in one Supreme Court." Then it goes on to add an important condition -a sort of a character reference. "The Judges, both of the supreme and inferior courts shall hold their offices during good behavior."
The drama surrounding the attempted rape accusations against Judge Kavanaugh raises critical questions. The FBI fact-finding regarding his character did not prove culpability. It was a limited exercise in both duration and scope. Proving culpability requires investigating more than 4 persons. Thus the Senate's Republican majority has been poised to ram that nomination through. Could he as Justice Kavanaugh be impeached? And could Justice Clarence Thomas be impeached for Anita Hill accusations of 1991?
In theory, this is possible. In reality, it is nearly impossible. The damage to the perception of the Supreme Court as a neutral body judiciously deciding on cases and controversies (Article III, Section 2 of the Constitution) is already done. A two dimensional damage: politicization, with Republican appointees, siding with Republican-inspired causes; and Democratic appointees, casting their opinions in an opposite direction.
The Supreme Court of the future promises to be an arm of the Trump's Republican Party. Never mind for now, the moral reputational damage resulting from having seated not one, but two justices suspected of being sexual predators.
In that context, how can the US Supreme Court remain perceptionally "supreme?" This and other question marks about that 9-justices body hang over the grand edifice of that court. Even prior to the Kavanaugh historic debate. The truth is invariably hard to prove. This is exquisitely expressed in a book by Paul Bergman, entitled "Trial Advocacy" in a chapter on "Truth and the Adversary System."
On the issue of "trial," Bergman says: "Ironically, while you might instinctively agree that trial is a "search for truth," rarely can you prove "What really happened... Words have a limited power to convey real events." Then he goes on to say: "Some commentators may suggest that adversarial techniques obscure reality even further."
Even the Oxford Dictionary, when it comes to defining "truth," casts it in a muddy way. It says "quality, state, of being true, or accurate or honest or sincere or loyal." This fog is best expressed by the Arab sarcastic poem: "After much exertion, he ended up defining the term "water" as "water."
Of course, the volcanic performance of Kavanaugh before the Senate's Judicial Committee should have prevented his nomination from confirmation. Kavanaugh has dug up for all to see that politics, not law, as applicable to his case, were his true calling.
On Thursday, September 27, Kavanaugh demonstrated that there are two of him in one skin. Earlier that month, during the first round of confirmation hearings, there was Kavanaugh No.1 -a calm judicial demeanor. "The Supreme Court, he said, must never be viewed as a partisan institution." But on September 27, Kavanaugh No. 2, much like in the film "Dr. Jekyll and Mr. Hyde," burst in the open, for the whole nation to see. His diatribe stunned me (as it did millions) as an attorney and a member of the Bar of the Supreme Court.
The real Kavanaugh was totally incoherent. He was vicious, betraying a hidden belief in the conspiracy theory, the trade mark of Donald Trump who nominated him as a potential shield from possible impeachment. Shouting his claims to innocence, Kavanaugh said: "This whole two-week effort has been a calculated and orchestrated political hit."
Then, as if anger is a non-disputed evidence of innocence, he dug deeper in politicizing his case. The charges levelled against him by his accuser, Dr. Christine Blasey Ford, were "fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups."
Would such a person be neutral in deciding a case which might come before the Supreme Court, assessing the guilt or innocence of Trump complaining about his violation of the Presidential oath of Office? That oath provides for "to the best of my ability, preserve, protect and defend the Constitution of the United States?" Judges are also humans with feelings. Even while they are wearing black robes.
And common sense dictates that Kavanaugh the volcanic and Kavanaugh the judge are inseparable. In the words of former President Harry Truman: "If you haven't got common sense, you shouldn't get out of bed in the morning."
Sadly, one should ask: "Is the US Supreme Court for sale?" If not, what prompts the Senate majority leader Mitch McConnell to say something to the effect of "We shall plow forth with the Kavanaugh nomination?"
September 27, 2018 and October 5 and 6, are dates that shall live in the annals of infamy. For they are pivot points for a besmirched Supreme Court, a highly dysfunctional US Congress, and a President who has been called by many, including one of his former Cabinet members,"an idiot." In today's American democracy, whose mainstays are "The Rule of Law," and a robust system of "checks and balances," those checks and balances do neither check nor balance.
The all-out war America has witnessed as of September 27, must have also terrified Chief Justice John G. Roberts, a devoted custodian of the court's prestige.
In 2016, the Chief Justice has concluded from a series of confirmation hearings, that those hearings were hobbled by rancorous partisanship: "We don't work as Democrats or Republicans. And I think it's a very unfortunate impression the public might get from the confirmation process."
Well, justice and fairness are largely about perception. They are not codified. There is a difference between "justice" and "law." Within that mix of perceptions, one factor looms large: President Trump is unhinged. A clown. And when you elect a clown, you get a circus!!
In an attempt to energize his supporters in West Virginia, Trump the Clown, on September 29, viciously mocked Senator Dianne Feinstein, Democrat of California and the ranking member of the Senate Judiciary Committee. Later, he mocked Kavanaugh's accuser, Dr. Christine Blasey Ford. The President of the US, who is personally accused by 16 women of sexual offenses, naturally sided with his soul-mate, Kavanaugh.
The President of the United States depicted Feinstein as confused before he turned on her party, saying: "You see the meanness, the nastiness. They don't care who they hurt ... in order to get power and control."
Words from a man whose whole life has been about self-aggrandizing. America of today is not the America intended to be by its great founders. The world laughed at Trump, the face of America, to his face at the UN on September 25.
Yet Trump and his aides insist that the world was laughing with him. Dream on!!
