EACH day brings a new fusillade of advocacy and commentary about Brett Kavanaugh, US President Donald Trump’s historically controversial nominee to fill the vacancy on the American Supreme Court created by the resignation this summer of Anthony Kennedy. Kennedy was often described as the “swing vote” on the high court after the resignation of Sandra Day O’Connor in 2006, but he was a conservative vote on most issues other than gay rights.
Kavanaugh, boyish in appearance and efficiently disciplined in his public appearances so far, is evidence of the elitist pinnacle in the American legal establishment. All current Supreme Court justices are graduates of either America’s second largest (Harvard) or one of its smaller (Yale) law schools, and O’Connor herself was one of the few recent exceptions to this duopoly. She was a graduate of Stanford law school.
Kavanaugh, whose mother served as a Maryland circuit court judge and whose father was a trade association executive, grew up in exclusive Bethesda, Maryland and attended tony Georgetown Prep school and Yale as an undergraduate. In high school he was two years ahead of Trump’s first Supreme Court nominee, Neil Gorsuch, who attended Harvard law school.
The nominee’s path upward in the legal profession was notably political from the beginning, as was Gorsuch’s. Kavanaugh wound up working for Ken Starr, a Republican who led him into partisan work on the effort to impeach Bill Clinton over his affair with a White House intern. Kavanaugh was principal author of the Starr report urging the impeachment of Clinton, establishing his Republican loyalty. Kavanaugh’s confirmation by the Senate to his current post on the US Circuit Court in Washington DC was highly contentious due to this partisanship.
Now, of course, Kavanaugh, if confirmed, will be expected by his sponsors to fight against the impeachment of the current US president. This irony has been lost on no one.
Further ironies and non-coincidental coincidences abound in this case. Another associate of this band of ambitious young lawyers working to help Starr dismantle the Clinton presidency was current Deputy Attorney General and Trump nemesis Rod Rosenstein. Gorsuch, now establishing himself as one of the Supreme Court’s most conservative votes, also worked for Starr during this period 20 years ago.
As the saga of Kavanaugh’s confirmation continues this week, all of this political history has largely been forgotten in the furor over the sensational allegation that he assaulted a 15-year-old girl while both were in high school. The accuser is Dr Christine Blasey Ford, a student at the time at another private Washington high school and now a respected PhD statistician and psychologist in northern California.
Dr Ford must know her life has been changed irretrievably. By coming forward as she has, she has subjected herself and her family to the kind of public vilification endured by Anita Hill, a young lawyer who became a footnote in American history 27 years ago. Like Dr Ford, she is now a college professor. But after graduating from Yale Law School in the 1980s, she testified at the Supreme Court confirmation hearing of Clarence Thomas, her onetime boss. Both are African Americans. Hill alleged sexual harassment. Thomas was confirmed 52-48.
The treatment Hill received as she then testified before the US Senate is generally regarded as despicable, inexcusable and unforgivable. She was pilloried and humiliated by a Senate Judiciary Committee consisting entirely of white men. The spectacle reminded observers of the Salem witch trials in colonial Massachusetts in the 17th Century. Future Vice President Joe Biden chaired that 1991 committee, and is now recalled as having shamefully compromised with Republicans to Hill’s detriment. If Biden runs for president in 2020, this won’t be forgotten.
Dr Ford now moves into the profoundly uncomfortable seat once occupied by Hill. She is a pawn in a larger game that is little concerned with sexual assault. The issue is political control of the Supreme Court. The Republicans are panicked because they know they could lose both houses of congress in November, and want to deliver another conservative justice while they still can.
But this election is in important ways about women. Trump’s misogyny has ensured that. If some Republicans recognise this, Kavanaugh’s nomination may be doomed.