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Kavanaugh, the Supreme Court, and the Need for a Stronger Challenge

Despite the shockingly farcical hearing in which Brett Kavanaugh was forced to address allegations of his history of sexual assault, there is every indication that he will be confirmed by the Senate Judiciary Committee and seated on the Supreme Court. The SCOTUS is, by design, an unaccountable branch of the government. On Monday, Left Voice will join the beginnings of a movement in the streets and will speak to the need for militant reforms.

Francesca Gomes

October 1, 2018
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Photo: Chip Somodevilla/Getty Images

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In a hearing CNN referred to as “a spectacle,” Dr. Christine Blasey Ford testified that Supreme Court nominee Brett Kavanaugh sexually assaulted her when they were both high school students. Ford, a research psychologist at the University of Palo Alto University after teaching at Stanford University for 30 years, passed a polygraph test in August, making it appropriately difficult for Kavanaugh to deny the allegations.

Ford had additionally made the accusation hoping her name would remain confidential, but members of the press began to track down who she was, and she stepped forward and went public to The Washington Post, detailing what Kavanaugh and his friend Mark Judge had done to her at a party when she was 15 and they were 17. In her account, she stated that she thought Kavanaugh might kill her.

Kavanaugh, predictably, denied the allegations anyway, and Ford’s attorneys formally requested that the FBI conduct a full investigation of the incident before Kavanaugh’s hearing before the Senate Judiciary Committee held a hearing. The FBI replied that the sexual assault “does not involve any potential federal crime” and that the agency “does not make any judgment about the credibility or significance of any allegation.”

During the hearing on Thursday, Republican Senator Lindsey Graham from South Carolina called it “the most unethical sham since I’ve been in politics,” and berated and aggressively pointed at Dr. Ford, shouting, “You want to destroy this guy’s life, hold open this seat, and hope you win in 2020!” He then turned to Kavanaugh and said, “You have nothing to apologize for,” later telling him, “I cannot imagine what you and your family have gone through.” As if attempting to illustrate the way in which women have been treated throughout history when coming forward about the sexual assault they have endured, Graham presented a perfect reflection of the right-wing outrage directed at women who speak up.

“Kavanaugh—and Hatch, and Lindsey Graham—seemed to be exterminating, live, for an American audience, the faint notion that a massively successful white man could have his birthright questioned or his character held to the most basic type of scrutiny…. Republican senators apologized to the judge, incessantly, for what he had suffered. There was talk of his reputation being torpedoed and his life being destroyed,” said a piece in The New Yorker entitled “The Ford-Kavanaugh Hearings Will Be Remembered for Their Grotesque Display of Patriarchal Resentment.” The Republicans, it argues, are outraged that the #metoo movement has required them to be accountable to the survivors of sexual assault.

Illustrating his complete rejection of any accountability for his behavior and past assaults, Kavanaugh laughed derisively when Democratic Party Senator Amy Klobuchar of Minnesota asked him whether he has ever gotten so drunk that he could not remember the night before. Kavanaugh responded “I don’t know; have you?… I’m curious if you have.”

Despite Ford’s vivid account of the assault, right wing media harped on the small details they said had been left out of her story, including the location of the house in which the party was held as well as the exact number of people who were in the room on the floor below the assault.

The New Yorker explained Ford’s initial resistance to make her allegations public as a result of “the spectre of Anita Hill, who, in her testimony against Clarence Thomas, in 1991, was basically berated over an exhausting two-day period, and diagnosed, by the senators interrogating her, with ‘erotomania’ and a case of man-eating professionalism.” And just as in the Clarence Thomas hearings, no amount of evidence will sway the Republicans from insisting that the real victim is the male perpetrator and supporting him with sad shakings of heads, remarking on the emotional trial he has had to endure by addressing allegations. Also as in the case of Clarence Thomas, the Democrats continued to do shockingly little during the hearing to prevent or decry the attacks on the survivor, or to hold the attacker responsible, choosing instead to ask tepid questions while raising an eyebrow now and then.

In this context, and given their modus operandi, it is completely unsurprising that the Democrats would not call for any kind of public challenge to any appointment to the Supreme Court—even one as shocking as this one. And in this case, just as in their failure to attempt any real fight against prior disgraceful political moves by Donald Trump, they will be able to exercise a form of plausible deniability, since “The Republicans, if they stick together, have the necessary votes.”

A Disastrous Nomination

Kavanaugh’s attainment of a seat on the Supreme Court puts the rights of the oppressed, notably women’s reproductive rights, in serious jeopardy. During the hearings, he echoed the religious right’s reference to contraception as “abortion-inducing drugs.” He’s additionally written legal opinions describing net neutrality as “unlawful” and government-imposed safety regulations as “paternalistic.”

He wrote a dissenting opinion on a case in which a Washington D.C. circuit court ruled that an undocumented teenager in an immigrant detention center should be allowed to obtain an abortion. His written dissent included his opinion that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He then scornfully referred to the allowance for the abortion as “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand,” making it clear that not only does he have a hostile view of abortion, but that he does not consider undocumented workers worthy of the same rights as citizens, which reveals a strong anti-immigrant sentiment in a climate of increased hostility toward those seeking refuge from U.S.-orchestrated poverty south of the border.

Recently, Kavanaugh has shown a determination to argue on both sides of the same issue, signalling a favorable attitude towards other right-wing policies while paying lip service to the center. For example, in 2009, he wrote that “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” and later that, “If the President does something dastardly, the impeachment process is available.” It is no wonder that Trump wants to appoint to the Supreme Court a judge who has actually stated a willingness to consider the President to be thoroughly above the law.

This is the second Supreme Court seat over which Trump has had the power to fill, a somewhat rare occurrence in a single presidential term. He nominated conservative judge Neil Gorsuch after the February 2016 death of Justice Antonin Scalia, and Kavanaugh is set to replace Justice Anthony Kennedy who announced his retirement in June.

Proof of the Destructive Powers of the Supreme Court

While the SCOTUS has recently passed some extremely important steps forward in favor of the rights of oppressed groups including holding that same-sex marriage is Constitutional, it has also continuously attacked the rights of organized labor such as in the Janus case. In a decision rendered earlier this year, the Supreme Court passed a decision that places public-sector unions at risk of decimation.

The power of the SCOTUS is remarkably undemocratic—even more so than that of other government bodies that serve the capitalist class. Lifetime appointments of justices who are purposefully kept unaccountable to any other body are made by whichever president happens to be running the Executive Branch during the time of the death or resignation of any judge, and as we have seen in past confirmation hearings, they are viewed largely as formalities instead of a vetting of candidates by the legislative branch that governs federal law.

While the bourgeois government is rife with issues that make it more than capable of actively working against the interests of the people and in the service of the capitalist class, the GOP domination of these hearings have clarified that there are little to no actual checks on the power of what is swiftly becoming a right-wing Supreme Court.

Direction and the Need for Demands Beyond Kavanaugh

While revolutionary socialists work towards the ultimate downfall of capitalism, we also fight for the rights of the working class within the capitalist framework because it is our responsibility to do so. In that sense, it is important to voice a loud and militant opposition to Kavanaugh’s nomination and to call attention to the serious dangers presented by the nomination as well as to the farcical hearings and message the confirmation sends about the rights of sexual assault survivors.

There is growing outrage at the exposed rotten nature of Supreme Court nominations, approval procedures and the false idea that “checks and balances” keep any branch of the government from neglecting the will of the people. But whether or not a resulting mistrust of the federal government is recognized consciously, the rage at Kavanaugh’s almost-certain appointment is real.

Kavanaugh has made statements clarifying his intention to overturn the Roe v. Wade decision that guarantees women the right to an abortion. Already under attack in state governments, the reversal of this verdict would be disastrous. This is only a single example of what can happen to women’s rights under the proposed makeup of the SCOTUS. We must put forth the conclusion that the perceived infallibility of this court and its unchecked ability to roll back decades of hard-fought-for rights for workers and other oppressed groups.

That’s why we need demands that go far beyond a denouncement of Kavanaugh that takes the shape of protests in the streets and then fades. We must also push for an analysis that specifies that we cannot rely on a “blue tide” to defend ourselves against Trump and the rise of the right. Despite a clear lack of will to put up any meaningful challenge against Trump, the Democratic Party has attempted to paint itself as the leadership of “the resistance”—a laughable claim. It’s our responsibility as socialists to combat this long con—we have to propose concrete demands beyond those that benefit them.

We need to build a call for an end to the by-design unaccountable Supreme Court which has proven to be something the Democrats in other branches of federal government are unwilling and unable to challenge. We must expose the ways in which it can be turned into a right-wing force—that can potentially remain in power for decades—by twists of fate over which no one has control. And it is incumbent on us to present and loudly voice demands that challenge not only the individual confirmation of Kavanaugh, but that challenge the very nature of the SCOTUS.

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Francesca Gomes

Francesca is a teacher from Brooklyn.

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