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The Martyrdom of Justice Kavanaugh


This is from Margaret Talbot’s long profile of Elena Kagan in the New Yorker:

Last fall, not long after Kavanaugh’s confirmation hearings, Kagan gave a speech at the University of Toronto. During the hearings, Christine Blasey Ford, a psychology professor who had known Kavanaugh in high school, accused him of assaulting her in 1982, at a party. “I believed he was going to rape me,” Ford said, adding, “It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.” Kavanaugh denounced the allegations as “vicious and false,” and the Senate narrowly confirmed his nomination. For many Americans, the episode was a depressing echo of the 1991 confirmation hearings of Justice Clarence Thomas, who had been accused of sexually harassing Anita Hill. A young woman in the Toronto audience politely asked Kagan how the Court “can be considered legitimate in its treatment of women who have experienced violence when you have not one but two Justices who have been levelled with credible accusations.” The woman noted, “I almost regret to ask this question.” Kagan’s reply was brusque: “You know, you were right—you should not have asked me that.” She went on to say how much she cherishes the institution and her fellow-Justices.

Talbot’s profile is all about how Kagan is trying to play the game of becoming the SCOTUS’s swing justice, at least occasionally, by carefully cultivating her professional relationships with John Roberts, Neil Gorsuch, and Brett Kavanaugh. So there’s a potentially compelling pragmatic justification for her see-no-evil posture, although I tend to agree with Sam Bagenstos assessment of the matter:

At Georgetown Law, in July, she said, “Maybe the worst thing people could think about our legal system is that, you know, it’s just like one person retires or dies, and another person gets on the Court, and everything is up for grabs.” That’s the kind of appeal to the Court’s long-term reputation and legitimacy that could continue to work on Roberts. It’s not likely to persuade, say, Alito or Thomas. Samuel Bagenstos, a constitutional-law scholar at the University of Michigan, told me, “Kagan’s tactical approach can be helpful in cases where Justices do not feel a very deep ideological affinity—but a tactical approach is not going to overcome a real ideological push.”

In other words, judges’ concern for the technicalities of legal argument tend to be inversely related to the extent that they actually care about a case’s actual ideological significance. (One of the more pitiful things about Bush v. Gore was the enormous effort that went into trying to find a legal argument that would convince one of five Republican justices not to hand the presidency to a Republican).

Or maybe Kagan just really doesn’t care about the fact that it’s extremely likely that Anita Hill and Christine Blasey-Ford — as well as the various other women who accused Thomas and Kavanaugh but weren’t allowed to testify — told the truth, while her colleagues at her cherished institution lied under oath — no doubt after performing the same sorts of pragmatic calculations that Talbot attributes to Kagan.

As to Kavanaugh’s testimony regarding his interactions with Blasey-Ford: Recently I had occasion to be reminded of three incidents from my high school years, all of which were extremely important emotional events for my interlocutor, who remembered them vividly. After being reminded of the accompanying details, I had a semi-good memory of one of the events, a very vague and quite possibly confabulated memory of a second, and absolutely no memory whatsoever of the third. This in turn reminded me of how, when I participated in a family history project recently regarding the year 1982, I had no memory at all of several incidents that remained vivid for other family members, and vice versa.

All of which is to say that it’s highly probable that Kavanaugh assaulted Blasey-Ford in pretty much exactly the way she remembers, and that he honestly has no memory whatsoever of the incident. After all he was almost surely really drunk, it wasn’t a significant event to him — as far as he was concerned “nothing happened” — and it was 36 years earlier. In fact, under the circumstances, it would be surprising if either Kavanaugh or his partner in crime Mark Judge had any recollection of the event.

With that in mind, consider the climatic moment of the Kavanaugh hearings:

“I’m sorry, Judge, for what you and your family have been through, and I’m sorry for what Dr. Ford and her family have been through,” [Sen. John Kennedy] said. “It could have been avoided.” And then he asked:

“Do you believe in God?”

Kavanaugh said that he did.

“I’m going to give you a last opportunity right here, right in front of God and country,” Kennedy said. “I want you to look me in the eye. Are Dr. Ford’s allegations true?”

Kavanaugh looked him in the eye. “They’re not accurate as to me. I have not questioned that she might have been sexually assaulted at some point in her life by someone someplace. But as to me, I’ve never done this.”

“None of these allegations are true?” Kennedy asked.

“Correct,” Kavanaugh said.

“No doubt in your mind?”

“Zero. 100 percent certain.”

“Not even a scintilla?”

“Not a scintilla. 100 percent certain, Senator.”

“Do you swear to God?”

“I swear to God.”

“That’s all I have, Judge,” Kennedy said. And, with that, the hearing was over.

Anyway, I suspect that the Kavanaugh hearings aren’t going to go away, just as the Thomas hearings never really did. The Kavanaugh hearings were clearly some sort of flash point on both the right and the left, and will remain so for some time.

For the increasingly radicalized right wing establishment, what it necessarily interprets as Blasey-Ford’s lies and/or delusions were all part of a vast left-wing conspiracy to stop real Americans from taking back the courts. This is literally how these people think: contemporary American history is the story of how America was stolen from its rightful owners by a bunch of nigger-loving commie fags, via the biased courts, the biased media, the biased schools, the biased Hollywood industrial complex, the biased scientists, and on and on and on. They are the eternal victims at the center of their own melodrama, and their dominant emotions are anger, envy, resentment, and a burning desire for revenge.

Hence, the symbolic importance of the Martyrdom of Justice Kavanaugh:

“This whole two-week effort has been a calculated and orchestrated political hit,” he raged, “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. This is a circus.”

Elena Kagan can’t acknowledge the fact that this unhinged rant got Kavanaugh across the finish line, because doing so would interfere with the game she’s playing.

I wish her good luck, but we don’t have to play along.

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