Judge Brett Kavanaugh is taking fire for those of us who still believe in the institutions, rules, and norms of America’s constitutional order. If Kavanaugh’s nomination fails, then we enter the process of interminable regime decay. Not that we haven’t traversed far in that regard, but certain political moments leave an indelible mark. Those opposing Kavanaugh claim that they too are fighting for the Constitution, but it’s the Constitution whose only guiding principle is egalitarianism in the stifling mode, an equality that strips away every vestige of liberty, along with the rights, protections, and procedures necessary to secure that liberty. To achieve that equality the utmost exercise of power and subterfuge are justified. Senate Democrats on the Judiciary Committee demonstrate no concern about the truth of the charges of sexual assault leveled by Christine Blasey Ford against Judge Kavanaugh. For that matter, they have shown no restraint on their arguments in support of Ford’s accusations. The Democrats are luring us into a spiral downward flight into nihilism: Truth doesn’t matter.
The logic of the Democrats’ position, should it prevail, compels them to believe the rape accusations against Bill Clinton, and that means they have protected a rapist for decades. That stain doesn’t come out. It also compels them to disqualify any future nominee of theirs against whom such an accusation is made—and if this is the standard for automatic disqualification, such an accusation will most certainly be made. We will be in a civil war. Will it be cold or hot?
Statesmen must always be aware of development and decay within the political orders they are charged with leading and conserving. Decay is a deep corruption of the regime, a condition that is nearly impossible to rejuvenate politically, morally, spiritually. Corruption, Hadley Arkes argues in his early book The Philosopher and the City, manifests itself in a political regime when public authority is transmuted into the device for securing the private wills of the rulers. More deeply, the authoritarian regime is characterized by rulers who do not give reasons to justify the laws they bind their subjects with. They just do it.
Progressive loyalty to the law comes through its ability to effectuate the power interests of group rights. Members of the progressive legal and political class reply that these are public principles, not private ones. But the essence of public rule is that its policies can be rationally debated. Surely, a first requirement in the assertion of an interest is that it be open to deliberation, to “dry political argument.” Instead, we are told that to interrogate the persons making these accusations against Kavanaugh is to seemingly deny that the person making them has public validity. There can be no public argument, only acceptance and submission to the Accusation itself.
This constitutional trial we are in builds on the Leftist machinations that have been practiced for some time now on our campuses and across corporate America. Both institutions have become willing and faithful communicants in the new progressive faith. We have been taught, and made to fear, the accusations of racism, sexism, homophobia, and phobias of the limitless identities daily added to the list. Who among us does not self-censor, afraid of incurring the wrath of various authority types with official titles, staffs, and wings of office space? Diversity departments, HR reps, OCR officers on campus, these officials have been commissioned to re-educate us in the endless demands of identity, equality, gender, race, and diversity. They have also been given the keys to bind and loose punishment on their charges without much questioning or accountability.
Kavanaugh is battered and twisting in the wind. Have we already grown accustomed to smaller spectacles occurring in our own institutions? We’re unable to recognize the moment we’re in. Rest assured, the Kavanaugh spectacle means that those who instilled the kangaroo courts and their officers on campus where the accused don’t get to mount a defense, and the mandatory diversity seminars in our places of business where dissent is not permitted, are now attempting to change all of our institutions from the inside out. The classical liberal order is rotting.
What should be an object lesson here is how Judge Kavanaugh, an eminently qualified and moderate conservative jurist, has been hit by opponents from the beginning of the Senate Judiciary Committee’s hearings to fill the open seat on the Court. Consider the first day of the hearings. Judiciary Committee Chairman Chuck Grassley of Iowa was interrupted by Senate Democrats, who also spoke over one another, for a combined total of 76 times. Protestors and intruders were so flagrant and uncontrollable in their opposition to Kavanaugh that his daughters were escorted from the room at one point. The goal was to delegitimize the hearings, the process, and the procedures that enable the Senate to fulfill its constitutional role of providing advice and consent for judges nominated by the President for appointment to the Federal courts.
Christine Brasley Ford’s accusations, and the capricious manner in which they have been handled by California Senator Dianne Feinstein, were really the capstone to the entire process that Kavanaugh has been forced to endure. For what? They must protect the decades of progressive constitutional jurisprudence that permits them reconciliation with a constitutional order they are deeply ambivalent about. For that defense, they aren’t giving reasons, justifications, and arguments grounded in the Constitution. They can’t. We are in a contest of wills. How better to understand Senator Kirsten Gillibrand of New York stating that “One credible sexual assault claim should have been too many to get a lifetime appointment to the Supreme Court and make decisions that will affect millions of women’s lives for generations.” Apparently, the need for evidence, cross-examination, analysis, and debate among the accuser and the accused and senators from both parties are not a part of the process of determining whether an accusation is “credible”. The will of the progressive shall not be impeded in its quest for cosmic justice, or more precisely, another generation of abortion on demand.
This is the environment that Ford and her handlers walked into and have exploited rather well. She has made demands on the Judiciary Committee as if it were her own club: An FBI investigation must be opened forthwith or Senate Republicans are protecting an abuser; she must not be questioned by counsel but only the Committee Republican members; she must testify after Kavanaugh; and she must testify offline in a small committee room. If Republicans cave to her demands, then they have told us what they think of their own club and its rules and procedures for, again, fulfilling their constitutional duty.
Ford has already managed to secure delay in her testimony from Monday of this week to Thursday. This permitted another loose and unsubstantiated allegation to be thrown at Kavanaugh by a former Yale classmate, Deborah Ramirez, who alleges that he exposed himself to her during a drinking game. Only she couldn’t exactly remember that it was he until after 6 days of recovering her memory (with Democrat lawyers?) and consulting with other classmates who were in the room or maybe heard of the incident, you know, hearsay style. Even the New York Times refrained from running her story. What’s next?
In all of this is there any sense that the rule of law and the constellation of classical liberal norms that undergird it matter? What does matter?
Kavanaugh’s defeat could spell the end of the Republican Party as many of its most faithful voters conclude that it is weak, impotent, and unable to achieve victory here. One of the party’s pillars has been the possibility of carving back decades of progressive judicial activism. That moment is now. If it slips through the grasp of the Senate’s Republicans, then their party may not recover. Would it deserve to?
What is not in doubt is the nature of the Left and that capitulation only fills their leaders with greater excitement and ambition. They desire a total monopoly on our political, civic, and private institutions in order to reshape them in their image. We must understand what Whittaker Chambers observed in 1952 after his successful war waged against Alger Hiss, the Soviet agent, who had worked in senior levels of government service. Chambers knew that he had ignited the intensity and the madness of the opposition because he hit “the forces of that revolution … at the point of its struggle for power.” Communism ended, but the formative nature of the Left rooted in absolute quests for justice has not. We cannot shy from the Left or be reluctant to defend what is still good in our country. We either defend our free institutions or they will become something else.