Rule of law and the civil society

Would you stop for a pedestrian about to enter a crosswalk? Or one who had just stepped into the crosswalk in your own view as you approached it in your vehicle? Of course you would. Ask yourself why. At a minimum most people would answer, because it’s the law.

This morning as I was jogging along a local rail-to-trail, like many others in America these days I was mulling over the Judge Kavanaugh hearings and the likely Senate confirmation vote about to take place. I should state right off that like Judge Kavanaugh I graduated from a Jesuit prep school and attended Yale College, about 6 or 7 years earlier than he. Unlike Judge Kavanaugh, I am not a Republican, but neither am I a Democrat. I have been an Independent ever since my first election in which I had to choose between Gerald Ford and Jimmy Carter. To be honest, I don’t remember which candidate I supported, they both had things going for them. But I do remember that I voted a straight Republican ticket on the rest of the ballot in the overwhelmingly Democratic city of New Haven. Generally I think government works best when the checks and balances come into play. One party dominance tends toward autocratic governance, and part of the promise of our system of government, founded in the face of English monarchical autocracy—think the Stamp Tax and the Boston Tea Party—is its protection of minority voices, of the weak in the face of the self-serving powerful.

It seems likely that the FBI’s investigation was narrowly focused on two instances of alleged sexual assault. This is unfortunate. I am not going to address that question beyond stating the obvious that we will likely never be able to prove to the standard of a court of law that a teenage Brett Kavanaugh was the boy who assaulted a teenage Christine Blasey-Ford in a locked upstairs bedroom back in 1982. And although this process should be understood to be more like a job interview than a juried trial, partisan differences seem to prevent clarity even on this point. Confirmation bias will also factor into whether we think Judge Kavanaugh has a drinking problem, though testimony of those who knew him back then suggests he drank more often and excessively in both high school and college than he let on, and this raises suspicions about his basic honesty with himself.

I do not doubt Judge Kavanaugh’s legal acuity. He follows what constitutional scholars call the “originalist” approach, a method that one can disagree with but has an intellectually legitimate basis and is supported by a significant portion of the legal community. But I do not think Judge Kavanaugh should be confirmed. Judges are supposed to comport themselves with probity and respect for the truth and ultimate societal good. In indulging in theories of left-wing conspiracies concocted by the Clintons frustrated by their loss in the 2016 election and bent on revenge for his own role in the Monica Lewinski investigations, Kavanaugh showed a lack of judicial probity. In suggesting that he would hold a grudge moving forward, observing that what goes around comes around, he undercuts his own reputation. Or he was playing to President Trump’s vanity? Either way, it is Judge Kavanaugh’s behavior that reflects badly on himself, and if confirmed, on the integrity of the Supreme Court.

So I was thinking about these things when I approached that cross walk just as a school bus with a long line of cars behind came into view. I hadn’t quite gotten to the cross walk when I made eye contact with the bus driver and I basically told him to go on through. School buses are special, and deserve special treatment. That’s why we stop when they are stopped to pick up and drop off children. But as I stepped out into the cross walk as the bus went by, the following drivers did not stop for me. Like Judge Kavanaugh, I don’t like to lose, so I stepped forward across the road. But I’m no fool, I didn’t step into the line of cars and get injured just to prove a point. I just stood there mouthing something like, “It’s the law!” And since they were behind a school bus it’s not as if they were going to get where they were going any faster anyway. Finally the last driver stopped for me, and I saluted him as I crossed. Why did I step out like that? I think it’s because I had been thinking about our system of government designed to iron out laws in a fair manner, and accordingly a country founded on respect for the law. And that respect for the law ultimately rests on our faith in the fairness of those laws and the judicial system that supports them. Judge Kavanaugh showed he cares more about winning a seat for himself on the Supreme Court than the reputation of that very same court, more about winning than in protecting the impartiality of the bench, and in my mind that disqualifies him.

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