Save the Supreme Court, not Kavanaugh

Ann Skeet is the senior director of Leadership Ethics at the Markkula Center for Applied Ethics.  This piece originally appeared in MarketWatch, September 19, 2018.  Views are her own.

Brett Kavanaugh’s nomination to the Supreme Court is in serious question amid allegations by Christine Blasey Ford, a university professor, that Kavanaugh sexually assaulted her at a house party when they were in high school in Maryland 36 years ago.

But equally serious questions about this nomination surround the Republican Party and Senate Majority Leader Mitch McConnell in particular.

“We should not have gotten to this point in this manner at this time,” McConnell said. “That this process has played out with so little order and so little sensitivity lies solely at the feet of Senate Democrats, who saw political advantage in leaking this to the press instead of vetting it through proper channels.”

I agree with the first part of McConnell’s statement, but not the second. Who does the senator believe he is leading? His actions suggest his followers are those who put the placement of conservative judges on the Supreme Court, regardless of the process or impact of doing so, above all. McConnell’s refusal to schedule hearings for former President Barack Obama’s Supreme Court nominee Merrick Garland, and his behavior now, working “behind the scenes” to “save the Kavanaugh nomination,” support this view.

There’s a larger issue in how we have gotten to this point in this manner at this time, but I am focused on topics besides the political makeup of the Supreme Court.  I am more interested in the Courts’ ability to rule in the interests of the American people — all of them — men and women of all political parties and persuasions, in support of the Constitution.

It is fundamental to the preservation of democracy that Americans return to having a faith that has been lost in the people occupying institutional leadership positions. If we continue to appoint or vote for people who provide consistent evidence of placing their own interests above a common good, we erode a fundamental counterbalance to the individual rights protected by our country’s foundational documents.

In her opinion piece in the New York Times, Anita Hill links the fallout from the Supreme Court nomination hearings she participated in 27 years ago as a contributing factor in the challenges women have faced in the workplace ever since. “Today, the public expects better from our government than we got in 1991, when our representatives performed in ways that gave employers permission to mishandle workplace harassment complaints throughout the following decades,” she writes. We still do not have processes in place to vet harassment and assault claims in the workplace effectively, a legacy of those hearings, supported by ongoing #MeToo revelations.

The legacy left by these current hearings depends, of course, on what comes next.  Will we do better at vetting harassment and assault claims among young people in the social settings associated with their schooling?  Nothing about the current state of health and well-being on college campuses when it comes to drinking and assault suggests we are making progress.

For example, a recent decision by Secretary of Education Betsy DeVos to withdraw Title IX guidance on campus sexual assault cited concerns that the policy denies due process to the individuals accused. “One rape is one too many, one assault is one too many, one aggressive act of harassment is one too many, one person denied due process is one too many.” The process she began with this announcement rescinds guidelines that remind schools of their legal obligation to address sexual violence because of a concern about the rights of the accused.  

In California, voters recently recalled a judge, who followed probation guidelines in his sentencing of Brock Turner, a person convicted of sex abuse on a college campus, due to his sentencing leniency, suggesting that some Americans seek a greater consequence for this behavior, not more relaxed rules to avoid false claims.

If a clear signal is not sent by these Senate hearings about individual accountability around drinking and sex, and perhaps gambling, we should not be surprised if a lack of accountability around such behavior becomes epidemic in our society.  All humans err, but many suffer consequences when they do.

Do we care most about the institution of the Supreme Court itself, or whether Judge Kavanaugh receives a lifelong promotion? From what I’ve observed about people in positions of power, if Kavanaugh were the man of high moral character that so many espouse, he would withdraw his nomination, understanding that the doubts raised put the Court’s role in our democracy in question if he is confirmed, even if we never learn the truth of this particular claim against him.

At the same time, McConnell would understand that the interests of the Republican Party, which still should come after the interests of the American people, also are not met by trying to save this nomination.

Kavanaugh’s nomination does not need to be saved, but Americans’ faith in their leaders and their government does.