Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

23 September 2018

The GOP’s Fork re Kavanaugh


[For a coda on why it’s become personal now, click here. For a short note on how important Professor Ford’s charges are, click here. For comment on President Obama’s decision to join the political fray, click here. For a possible path to Trump’s impeachment and removal, click here. For comment on Trump’s deal with Mexico, click here. For a brief homage to John McCain, followed by reasons to support Stacey Abrams, click here. For a brief note on vote suppression in Georgia as a reason to support Stacey Abrams, click here. For other good candidates and causes and how to contribute easily, click here.

In chess, a “fork” is a situation in which either of two possible moves is a loser. One might sacrifice your queen, for example, while the other might put you in checkmate. It’s like a fork in the road in which one exit leads to a swamp and the other over a cliff.

That’s precisely the position in which Professor Ford’s charge of sexual assault against Judge Kavanaugh has put him and the Republicans. One option is to withdraw his nomination or delay the confirmation process. That won’t end the game right there. The GOP will still have a chance to nominate and confirm someone equally reactionary, or even to confirm Kavanaugh himself, after the midterms.

Believe it or not, that’s the queen’s sacrifice or the swamp, not the checkmate or the cliff. For the GOP, the alternative is even worse. Here’s why.

The first thing to note is the nature of Professor Ford’s charges. She alleges that Kavanuagh physically assaulted her, threw her down, landed on top of her, groped her and tried to remove her clothes. She got away, she says, only when Kavanaugh’s friend, Mark Judge, landed on top of both of them. That looks a lot like attempted rape—a felony in most jurisdictions.

It’s a slam-dunk for garden-variety criminal assault, namely, an unwanted or hostile touching without permission, causing injury or damage. That can be a misdemeanor or felony, depending on circumstances and jurisdiction. The statute of limitations may have run, but this alleged conduct, if fact, would have been some kind of crime virtually everywhere.

In contrast, Professor Anita Hill’s charges against now-Justice Clarence Thomas were for sexual harassment, not sexual assault. All the conduct Hill alleged was verbal, not physical: repeated requests for dates, constant sexual innuendoes, and invitations to watch pornography.

Even today, that kind of conduct is hardly a crime anywhere. If done in private, it has little or no legal remedy. If done in the workplace, as Hill alleged, it can support a civil lawsuit or a complaint to government bureaucracies for monetary compensation and/or official orders to cease and desist, remedy the situation, or “sanitize” the workplace. But it’s not a crime.

In short, the conduct that Professor Ford alleges is far worse than that charged by Professor Hill. It’s a criminal offense. And unlike Anita Hill, who was a grown women and a law-school graduate at the time of the harassment she alleged, Christine Blasey Ford was a fifteen-year-old girl in high school—a minor without training in the law or her legal rights. If we believe her account, we also believe she was too terrified, humiliated and confused to seek any legal remedy or even to confide in anyone for some time.

The second thing to notice is that women really hate this stuff, and rightly so. There is no passably attractive woman who has not, at some time in her life, been eyed like a piece of meat and subjected to obnoxious, humiliating and scary words and gestures, as Professor Hill alleged. That’s bad enough. But when it gets down to the kind of violence that Professor Ford alleged, it descends to another level altogether. Probably no woman alive has avoided fear of such attacks, especially when alone at night, and no mother has failed to fear it for her daughters. It’s a big, big deal that most men don’t understand because they can defend themselves, or at least their male pride deludes them into thinking they can.

The third thing to notice is numbers. Women are a majority of our population. They are a majority of voters. They are a majority of voters who actually vote. In other words, they are no minority. If we had a proper parliamentary-style democracy, with no electoral college, no mal-apportioned Senate, no “Hastert Rule” in the House, no gerrymandering and no vote suppression—and if women actually exercised their franchise fully—they could rule as a bloc. And they could do so without breaking a sweat.

But that’s not all. The clear majority that women as a whole represent is not the only demographic to feel the pain. There are tens of millions of men, whether husbands, fathers, brothers, uncles or not, who empathize with them. They believe, as do I, that if sexual assault is a crime (and it is and should be!) we ought to think long and hard, and thoroughly investigate all the facts and circumstances, before we put someone credibly charged with that crime on the Supreme Court for life.

But that’s still not all. The man who nominated Judge Kavanaugh, President Donald Trump, has insulted, belittled, offended and spurned virtually every minority in this most diverse nation on Earth. That includes immigrants generally, Hispanics and Hispanic immigrants, African-Americans, immigrants of black African descent (remember the “shithole” countries), Muslims, Native Americans and (less frequently) people from India and China. My own personal minority group, Jews, gets a pass most of the time because Trump’s son-in-law belongs to it. But Trump’s “base” includes a whole lot of white supremacists who don’t think of Jews as white, or even human.

So at one time or another, the GOP standard-bearer has offended virtually every ethnic minority in this great nation except card-carrying white, Anglo-Saxon Christians, and maybe Norwegians. Now, in attempting to railroad Kavanaugh onto the Court without fair and thorough investigation and hearing of Ford’s charges, the GOP is offending the majority, our females.

What gives this scenario unprecedented power is a simple fact. This is not about policy. This is personal. And Donald Trump made it so.

It’s personal even for white males like me, who consider ourselves relatively immune from rape or an American Kristallnacht. We weep and rage for women, who in theory have the power in their votes to demand equal dignity but often get no respect. We weep and rage for black kids shot down (in the back!) by racist police for nothing. We decry the millions of blacks incarcerated who would be free if they had some money and a good lawyer. We cry for the millions of honest Hispanic workers, doing our worst jobs, who are beset by crime and hide in the shadows for fear of deportation, and who are torn from their children. We rage for all the ethnic minorities treated inescapably like second-class citizens in encounters with the police, the State or other citizens. (Remember the East Indian senior body-slammed and partially paralyzed by Alabama police?)

And what is the Republican Party’s “answer” to all this hate, inequality and oppression, under the “leadership” of Donald Trump? It’s to pile on yet more hate, inequality and oppression, with only token objection from Republicans. That’s why today’s politics—and any judicial nomination intended, in the final analysis, to let Trump do what he wants—can never be anything but personal for all the people whose goals and dreams are disregarded simply because of who they are, and for everyone else who feels their pain of exclusion.

So do the numbers, GOP, please. Women are a majority, say 51%. To avoid double-counting of women, you have to cut each minority’s numbers in half. So add 6.5% for black males, 7.5% for Hispanic male citizens, and 4% or so (an estimate) for Asian males. That’s 69% already. Then add a few percent for white, male non-supremacists and non-chauvinists like me, say, 5%.

That’s 74% of our people. In the greatest landslide so far in our history, Lyndon Johnson beat Barry Goldwater—an old-fashioned, honest, non-hating conservative—with only 61.1% of the vote.

What do you think we’re going to do with that 74% majority? We’re going to pack the Court to bring it around to our views, whether or not Kavanaugh is on it.

We’re going to make sure women have control over their own bodies. We’re going to make sure that, when our Congress provides universal health insurance covering pre-existing conditions, it sticks. We’re going to assure everyone who works a living wage. We’re going to give immigrants and their children a fair shake and a chance to join our great nation as citizens. And we’re going to make sure that, when businesses abuse employees, consumers or the environment, or destroy our economy with their greed and stupidity, they will be held accountable. In serious cases like the Crash of 2008, we’re going to put some perpetrators in jail.

There is no constitutional impediment to a majority of both Houses of Congress packing the Court. Article III of our Constitution gives Congress plenary power over the structure of our courts, including the Supreme Court. When FDR gave up his plan to pack the Court, he did so because others convinced him it was not a good idea. They cited tradition and “comity.”

Well, tradition and comity flew out the window when the GOP treasonously set out to make Obama as president fail. They flew out at gale force when filibusters began to be used at 142 times the historic rate. The gale increased to hurricane force with rampant gerrymandering and vote suppression, the Supreme Court’s theft of the presidency from Al Gore, and McConnell’s theft of a Supreme-Court appointment from President Obama. So don’t expect pleas for “tradition” or “comity” to win the day when women join with all the minorities Trump has called out (while Republicans stood idle), and with empathetic white males, to form the greatest supermajority voting bloc in this county’s history.

And don’t be surprised now if, like Senator Cory Booker protesting hiding as “confidential” most things in Kavanaugh’s record to which Dems might object, we answer a threat to ram Kavanaugh through with the challenge, “Bring it!”

For we are truly fed up. If Republicans ram this accused would-be rapist through to a lifetime post on our highest court, we will see all of them as one with Donald Trump. And we will neither forgive nor forget.

So maybe having Kavanaugh step down now is the swamp, not the cliff, the queen’s sacrifice, not the checkmate. Maybe the checkmate will come anyway. It’s long overdue. But if Republicans want to play the odds, getting Kavanaugh to step down or adjourning his hearings to the “lame duck” session is by far the wiser and less risky choice.

Coda: Why and for Whom it’s Personal Now

Judge Kavanaugh’s “originalist” interpretation of the Constitution freezes it as of the year it was adopted and ratified, 1791. At that time, only white, male property owners could vote.

Of course we’ve expanded the franchise since then, by war, by constitutional amendment, and by statute. But that was the mindset then. Judge Kavanaugh’s judicial “philosophy” would keep it that way in every instance when the Constitution’s and statutes’ words are not crystal clear and decisive. Yet isn’t the function of a Supreme Court justice to decide precisely such cases? The clear and easy cases never reach the Supreme Court.

So how, pray tell, can anyone who is not a white, male property owner feel comfortable with a man who believes what Kavanaugh believes judging her or his case at the highest level? How can his confirmation not be a personal matter?

With women, this question assumes a higher dimension. Men can go anywhere without fear of attack. Even in rough areas, they can “pass” with proper clothing, a downcast look, and a beat-up car.

But women carry reasons for attack with them everywhere they go: their faces and their bodies. For evolutionary reasons, the male sexual impulse is strong. It’s the function of social evolution—i.e., civilization—to keep women safe by containing that impulse with law and custom.

If gender equality means anything, it means that women should be free to go where men can go. They should also be free to invite strong male tradesmen and contractors into their homes without fear of attack.

Today we have a president who is known for his propensity to use women as his personal sexual playthings, and to exploit his personal power and money to get away with doing so. Now we have a nominee to the Supreme Court accused of gross physical violence against a female child of fifteen. And the GOP wants to ram through his confirmation to a lifetime appointment on our highest court without properly hearing the accusation, let alone having it investigated by professional law enforcers.

How can any woman not take this personally? Among FDR’s four vital “freedoms” is freedom from fear. How can any female feel freedom from fear, knowing that a man who might have physically attacked a female child of fifteen with impunity would be among the highest judges of her civil suit or criminal charge against a another brutal man who did a similar thing to her?

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