As a political moderate, I’ve become used to paradoxes. After the election, for example, I received a phone call from both of my grandmothers in the space of an hour. The first is a conservative from Florida. “Thank the Lord,” she told me. “He has delivered us a President.” The other is a socialist from Canada. “We must pray,” she said to me fifteen minutes later, “and remember that trials come to test our faith.” Although I sympathized with one and disagreed with the other, I tried to listen to both with respect – not only because they are my beloved grandmothers, but because I do not belong to a party. I must open myself to hearing the opinions of both, even when those opinions are in direct contradiction with one another.
As one might imagine, with that mindset it has been a long two years. The election was swiftly followed by battles about immigration, the climate accords, Supreme Court nomination No.1, trade agreements, allegations of collusion, more firings than I can count, and cries of potential impeachment. By the time Brett Kavanaugh’s nomination became headline news, I was numb to the controversy. I’ve simply seen it too many times to be impressed. Republicans think he’s the best thing since sliced bread. Democrats are crying foul play. Everybody argues, nobody listens. Worse, the arguments aren’t new. At their core, the debates surrounding Brett Kavanaugh’s appointment aren’t about Brett Kavanaugh. They are about two issues only tangentially related to him: the role of the Senate in Supreme Court Nominations, and the bounds of what is and is not considered rape or sexual harassment.
I’ll start with the first, since it’s simpler, although not necessarily easier to solve. What is the role of the Senate in Supreme Court Nominations? More specifically, on what grounds should they be allowed to reject a candidate? The constitution – unfortunately – is of little help on the issue. “… And [the President] shall nominate, and by and with the Advice and Consent of the Senate…Judges of the Supreme Court” it reads (Article II, Section 2, Clause 2). Advice and Consent are not terribly illuminative words. They could mean anything from an informal brunch to a separate examination process. To interpret the wording, we must depend on legal precedent; how has the Senate handled this issue in the past? Again, that’s a more complicated question than it might originally appear. Until 1925, there wasn’t much of a confirmation process. The Senate did vote, and occasionally rejected people, but unless there was a remarkably compelling reason, the President’s choices were passed. After 1925 the process got a bit lengthier and more stringent. After 1980, it started to take its current shape: an enormously long hearing that runs upwards of 20 hours.
With the increased examination, reasons a Senate might reject a candidate have also begun to shift. Former debates centered around issues of ethics and competence; today we have added questions of political affiliation and how the candidate’s positions might affect the balance of the Court. Still, despite a growing list of factors to weigh, outright rejections to the Court are rare. Should Kavanaugh be rejected, he will be the 9th judge in US history, out of over a hundred appointments. This – for me – raises an important question. I agree that concerns of ethics and competence ought to be part of the Senate’s examination. But given the history, do I believe that party affiliations or balancing those affiliations within the broader court should also be ground for a rejection? I will return to this question in a moment.
The other crucial issue at stake in this appointment is that of rape and sexual harassment. As a culture, we’re in the middle of an ongoing conversation about these two terms. What do they mean? What constitutes them? When and where does an incident move from one to the other? What is the acceptable time limit to claim reparations? What do we accept as proof of their occurrence? How do we keep them from happening? This is a thorny issue, and one on which I frankly feel uncomfortable commenting. I don’t know what happened to those women at those parties; the events took place before I was born. Yet – per the terms I outlined above – if Kavanaugh is guilty of sexual harassment or rape, he should be rejected from the court on ethical grounds and likely arrested. Despite my reticence, this is an issue on which I need to have an opinion; until Western society gets clearer on the morality of these terms, we’re going to keep running into this situation.
So, then, what do I think the appointment? In terms of competency, Brett Kavanaugh qualifies; from all accounts he is a distinguished and effective judge. I also – as a person without party affiliations – do not believe that party politics should influence Supreme Court nominations. If the rape and sexual harassment claims did not exist, there would be no reason to bar his appointment. But the rape and harassment claims do exist, and I take them seriously. Any such charge needs to be investigated, regardless of how many years ago it took place or how convenient it may seem. Given the choice between mistakenly rejecting Kavanaugh from the Court or mistakenly silencing a victim’s voice, I would rather find another judge than ignore a woman’s pain. I’m not saying Kavanaugh should be dropped from consideration without a fair investigation. But I will not feel comfortable with his appointment until he is cleared of ethical doubt.
Anna is a senior majoring in Writing.