What did the Kavanaugh controversy tell us about our historical moment? It underscored what we already know, that America is politically and culturally divided and that activists and the two parties don’t just disagree with but dislike and distrust each other. We know also the Supreme Court has come to be seen not only as a constitutional (and inevitably political) body but as a cultural body. It follows cultural currents, moods, assumptions. It has frequently brushed past the concept of democratic modesty to make decisions that would most peacefully be left to the people, at the ballot box, after national debate. So citizens will experience the court as having great power over their lives, and nominations to the court will inevitably draw passion. And this was a fifth conservative seat on a nine-person court.
But the Kavanaugh hearings had some new elements. There were no boundaries on inquiry, no bowing to the idea of a private self. Accusations were made about the wording of captions under yearbook photos. The Senate showed a decline in public standards of decorum. A significant number of senators no longer even pretend to have class or imitate fairness. The screaming from the first seconds of the first hearings, the coordinated interruptions, the insistent rudeness and accusatory tones—none of it looked like the workings of the ordered democracy that has been the envy of the world.
Two Republican senators this week wrote to me with a sound of mourning. One found it “amazing” and “terrifying” that “seemingly, and without very much thought, nearly half the United States Senate has abandoned the presumption of innocence in this country, all to achieve a political goal.” The other cited “a truly disturbing result: One of the great political parties abandoning the Constitutionally-based traditions of due process and presumption of innocence.”
At the very least, Senate Democrats overplayed their hand.
My bias in cases of sexual abuse and assault, and it is a bias, is in favor of the woman. I give her words greater weight because I have not in my personal experience seen women lie about such allegations, and I know the reasons they have, in the past, kept silent. If you know your biases and are serious, you will try to be fair—not to overcorrect but to maintain standards. On Sept. 16, the day the charges made by Christine Blasey Ford appeared in the Washington Post, I was certain that more witnesses and information would come forward. We would see where justice lay. The great virtue of the #MeToo movement is that the whole phenomenon was broken open by numbers and patterns—numbers of victims, patterns of behavior, and the deep reporting that uncovered both. In this case great reporters tried to nail down Ms. Ford’s story. But they did not succeed. The New Yorker story that followed was dramatic but unpersuasive, a hand grenade whose pin could not be pulled. The final allegation, about rape-train parties and spiked punch, was not in the least credible.
It was Ms. Ford’s story that was compelling, but in need of support or corroboration. It did not come.
It was a woman who redeemed the situation, Sen. Susan Collins of Maine. In her remarks announcing her vote, she showed a wholly unusual respect for the American people, and for the Senate itself, by actually explaining her thinking. Under intense pressure, her remarks were not about her emotions. She weighed the evidence, in contrast, say, to Sen. Cory Booker, who attempted to derail the hearings from the start and along the way compared himself to Spartacus. Though Spartacus was a hero, not a malignant buffoon.
Ms. Collins noted that she had voted in favor of justices nominated by George W. Bush, Barack Obama and Donald Trump. She considers qualifications, not party. She reviewed Brett Kavanaugh’s 12-year judicial record, including more than 300 opinions, speeches and law-review articles; she met with Judge Kavanaugh for more than two hours, and spoke with him again for an hour by phone with more questions.
She judged him centrist in his views and well within the mainstream of judicial thought. He believes, he told her, the idea of precedent is not only a practice or tradition but a tenet rooted in the Constitution.
As to Ms. Ford’s charges, since the confirmation process is not a trial, the rules are more elastic. “But certain fundamentally legal principles about due process, the presumption of innocence, and fairness do bear on my thinking, and I cannot abandon them.”
“We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.” She called the gang-rape charge an “outlandish allegation” with no credible evidence.
At this point it was understood the Democrats had gone too far.
It is believable, said Ms. Collins, that Ms. Ford is a survivor of sexual assault and that the trauma “has upended her life.” But the four witnesses she named could not corroborate her account. None had any recollection of the party; her lifelong friend said under penalty of felony that she neither remembers such an event nor even knows Brett Kavanaugh.
Ms. Collins said she has been “alarmed and disturbed” by those who suggest that unless Judge Kavanaugh’s nomination was rejected, the Senate would somehow be condoning sexual assault: “Nothing could be further from the truth.”
The atmosphere surrounding the nomination has been “politically charged” and reached “fever pitch” even before the Ford and other charges. It has been challenging to separate fact from fiction. But a decision must be made. Judge Kavanaugh’s record has been called one of “an exemplary public servant, judge, teacher, coach, husband, and father.” Her hope is he “will work to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions and so that public confidence in our judiciary and our highest court is restored.”
And so, she said, she would vote to confirm.
It was a master class in what a friend called “old-style thoroughness combined with a feeling for justice.”
A word on the destructive theatrics we now see gripping parts of the Democratic Party. The howling and screeching that interrupted the hearings and the voting, the people who clawed on the door of the court, the ones who chased senators through the halls and screamed at them in elevators, who surrounded and harassed one at dinner with his wife, who disrupted and brought an air of chaos, who attempted to thwart democratic processes so that the people could not listen and make their judgments:
Do you know how that sounded to normal people, Republican and Democratic and unaffiliated? It sounded demonic. It didn’t sound like “the resistance” or #MeToo. It sounded like the shrieking in the background of an old audiotape of an exorcism.
Democratic leaders should stand up to the screamers. They haven’t, because they’re afraid of them. But things like this spread and deepen.
Stand up to your base. It’s leading you nowhere good. And you know it.