OPINION: Dealing With The Accusation Against Judge Kavanaugh — A Modest Proposal

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Alan Keyes Former Assistant Secretary of State
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If GOP Congressional leaders had dragged their feet about holding hold a Senate Judiciary Committee hearing to take testimony from Judge Brett Kavanaugh’s accuser, Democrat’s acting in opposition to his confirmation as a SCOTUS Justice would have decried their reluctance to give her a hearing. Now they are pretending that the GOP leaders’ effort to air her charges is a rush to judgment.

This pretense makes no sense after weeks of investigation, document gathering and hearings on Judge Kavanaugh’s career, on and off the bench. Few Americans have mental faculties so impaired by partisan, ideological frenzy that they react without suspicion to accusers, anxious to be heard after years of silence, whose eagerness to tell their story dissipates the moment they have the chance to do so.

Let’s admit the factors that might work to discourage a victim of sexual assault from taking action — shame, fear, unaccountable embarrassment, the unwillingness to disrupt work and family relations, etc. For years, it is plausible that these mental and emotional obstacles would wrestle with the desire for justice, or even revenge, to a standstill.

When it comes to judicial nominations, however, we are asked to believe that the prospect of trusting someone guilty of criminal behavior, with enormous power over the administration of law and justice cuts through this emotion Gordian know. It lends weight to appeals made on behalf of the public good, enlisting public spirit in the fight against private fear and shame.

If this is anything like a true depiction of the accuser’s internal struggle, we must assume that he or she has spent years imagining the fearsome consequences of speaking out. When, sure of the truth, they decide to do so for reasons that transcend the searing wound of private grievance, what sense does it make for them to shy away from the moment?

Common sense rightly suspects that this shyness reflects doubt. Is it doubt about their appraisal of the consequences, for themselves and their loved ones? Or is it doubt about their memory of the episode or their sense of its criminal significance?

Our system of justice insists on a fair and open trial of criminal accusations precisely because, when properly prepared and conducted, it should test these doubts, probing in light of facts and truthful testimony, to ascertain the truth.

Concern for the public good may plausibly motivate victims to come forward. So, it even more plausibly motivates lawgivers, as they frame constitutions justly to constrain government or enact laws that authorize government actions. Insistence on due process of law formally reflects this public-spirited motive.

Of course, though private individuals and government officials proclaim this as their motive, private emotions, ambitions and purposes may belie the claim. The desire for money or notoriety may secretly drive accusers. Government officials may be driven by similar affections, covertly in play, or by partisan, ideological agendas.

Tragically, we live in an era when most Americans feel compelled by bad experience to assume that, on all sides, such motives taint what people do. This is especially true because our Constitution makes sure that periodic electoral contests elections are always just around the corner.

On balance, the considerations sketched in the paragraphs above impel me to assume that, during election years, the key players involved in these accusation dramas are more likely than not to be driven by partisan or personal agendas. The parties rouse seek to rouse the factional spirit of likely voters, rather than appealing to the public spirit that ought to govern each voter’s use of his or her share of sovereign power.

In respect of the Kavanaugh SCOTUS nomination, the GOP wants a process that motivates voters to appreciate the importance of preserving and expanding their majorities in both Houses. The Democrats want a result that emotionally whips their political thralls to the polls, stung by fear and outrage.

Do the GOP leaders sincerely care whether Kavanaugh votes for or against abortion, so long as voters support their continuation in power? If they do, why were there no probing questions asked to test the illogic of his praise for Justice Kennedy’s preservation of the SCOTUS’s pro-abortion jurisprudence? Why no serious effort to discern the seriousness of the indications, clear in his record and recent testimony, that slavish adherence to existing precedent on abortion, regardless of the founding premises of our Constitutional authority as a people, would govern his scrutiny of cases that come before the Court?

As for the Democrats, their show of factually ill-grounded opposition to Judge Kavanaugh’s nomination — including the self-contradictory notion that the accusations against him should be urgently considered, at some later time — raise the suspicion that they “protest too much” — overacting in a way that undermines the credibility of their performance. Is there any solution that would test the sincerity of the declamations coming from both sides?

Right now, the people greatly distrust Congress and the U.S. government. This suggests the need of for an unprecedented procedure, one that would test the good faith of the leadership of both partisan cliques: Let the vote for Judge Kavanaugh proceed but in light of a sworn promise from him, and from President Trump, that he will not be sworn in until after the general election.

In the meantime, let a thorough investigation be made of the accusation against him, provisioned by Congress but under the supervision of the SCOTUS; with its findings to be released to the general public no later than October 23, two weeks before the general election takes place. That way, the people can consider the facts as they decide the composition of the new Congress.

This procedure would assure that the election serves its proper purpose — which is to let the mind and will of the voters arbitrate the just use of the government powers derived from their consent.

Dr. Alan Keyes is a political activist, prolific writer, former diplomat, and the founder of LoyaltoLiberty.com

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.