Brett Kavanaugh

Until Christine Blasey Ford stepped forward with her story of near-rape at the hands of a couple of drunken preppies, the Brett Kavanaugh confirmation saga seemed to be shaping up as a classic Washington farce in which Democrats go through the motions of opposing a rightwing Supreme Court pick while doing as little as possible to actually stop it.

Now that the Ford saga has busted it wide open, it’s still a farce, but a rollicking high-octane farce that is impossible to resist whether we like it or not.

Given Kavanaugh’s strongly-worded denial, it remains a question of her word against his.  But all sides are now piling on.  Mark Judge, a conservative writer and journalist who took part in the alleged assault, did his old pal no favor by declaring, “It’s just absolutely nuts.  I never saw Brett act that way.”  He added in an email a day later: “I have no recollection of any of the events described in today’s Post article or attributed to her letter.”  The trouble is that Judge is the author of a 1997 memoir entitled, “Wasted: Tales of a Gen-X Drunk,” in which he brags about how many times in high school he wound up unconscious on the floor.  Once “I had the first beer,” he says, “I found it impossible to stop until I was completely annihilated.”  The fact that he has no recollection of an assault is meaningless since there’s much about his school days that he doesn’t recall.

There’s also the fact that Judge seems to be a rightwing creep who thinks that “women should be struck regularly, like gongs” (as he put it in his high-school yearbook, quoting Noel Coward); who writes that Barack Obama is a wimp who lives in “abject terror” of his wife; who equivocates about the morality of rape, and who is given to wayward thoughts about black people and gays.  (Check out Shane Ryan’s article in Paste Magazine for all the sordid details.)  The fact that Kavanaugh would hang out with someone like this does not bode well for the GOP.  The other side has meanwhile trumpeted the news that students describe Ford, a research psychologist at Palo Alto University, in ratemyprofessors.com as scary and unprofessional – until, that is, it turned out the comments were about a different professor at a different university.  Now conservatives have taken it back while desperately searching for other ways to poke holes in her story.

Exciting, isn’t it?  Can’t you feel the adrenaline rushing through your veins the way it did back in the days of Anita Hill?  For the next few weeks, it looks like we’ll be condemned to spend our free time arguing about sexual violence and how to combat it, about the relationship between teenage misdeeds and adult behavior, and so on.  Resistance will be futile.  We’ll be drawn in whether we like it or not.

But as important as such topics are, consider what we won’t be discussing, e.g. how an unelected Supreme Court has come to loom so large in American political life or why such a powerful body should be exempt from democratic oversight.  Other things we won’t talk about include:

• The fact that Kavanaugh, currently in his early fifties, could remain on the bench well into the 2050s or even longer thanks to medical advances. Society will be transformed, yet Kavanaugh will go on mumbling about the eternal wisdom of the Founders as if everything had remained the same.
• The question of whether judicial interpretation can’t help but weaken as the decades wear on.  The more the Framers retreat into a mythic past, the more irrelevant they become in terms of modern society.  Rather than asking what the Constitution means, the question Americans should be asking themselves is whether such an exhausted tradition still retains any meaning at all.
• The issue, finally, of whether excluding the masses from decision making strengthens democracy or undermines it.  If Americans are really concerned about the decline of democracy, the question is to consider is whether the answer is not to narrow it,  but to broaden it all the more.

But not only will such topics go undiscussed, they’ll wind up ever more sidelined as more “pressing” matters intrude.  It’s a fascinating example of how the political structure steers the “national conversation” away from the political and towards the sexual and personal by making it easier to talk about one than the other.

Take Dianne Feinstein, the senior Democrat on the Senate Judiciary Committee.  In addition to bringing up Ford, she could conceivably raise questions about the wisdom of lifetime judicial appointments.  If representatives only serve two years and senators six, why on earth should Supreme Court justices serve for decades on end?  But if she complains that the Supreme Court is undemocratic, then someone will complain that a monstrously unrepresentative Senate is undemocratic as well, and her authority will vanish.  She doesn’t dare mention the absurdity of giving California the same clout as Wyoming even though its population is nearly seventy times greater because that would suggest that the Constitution is also absurd, words she cannot begin to utter about a document that, in accordance with Article VI, she has sworn to obey and uphold.  She can’t call for reform of the principle of equal state representation because she knows that Article V makes it impossible.

So she finds it more profitable to keep quiet.  One could accuse her of participating in a great conspiracy to bury such questions forever and ever except that, as she sees it, she agreed to play by certain rules when she entered politics, and thus can’t imagine changing them at this late date without going back on her word.

Similarly, she can’t encourage debate about the difficulties of constitutional interpretation for fear of opening a Pandora’s box that could lead to the undoing of decisions like Roe v. Wade.  Her only recourse, she figures, is to preserve America’s pre-modern political structure in the hope that Democrats will one day claw their way back on top and make the ancient machinery do their bidding instead.

The important questions are thus put off while everyone talks about sex instead.  “I am stunned that this is happening again,” Barbara Boxer, a former Democratic senator from California and a veteran of the Anita Hill wars, told the Times.  “But it is not surprising because our culture has not completely dealt with inequality between men and women.”

Yes, but what about the inequality between Californians and Wyoming residents?  This is something that American culture has unable to deal with at all.