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An Open Dialogue

The Kavanaugh Affair

Abdullah Shibu
MODERN democracy is based on a few principles well-known to all but always worth reiterating in order to foster growth and participation of the electorate. First of all, the three branches of the government—the legislature, the judiciary, and the executive—must have some degree of autonomy. Second, an
independent judiciary, which is not politically biased and upholds the constitution and ensures rule of law, is vital to guarantee the rights of the citizens. And finally, the political system must not only articulate the average citizen's choices and beliefs, but also reflect the views of the majority.
In the US, the last two weeks witnessed a mild to moderate tsunami that rocked the body politic and has led to a major realignment of the powerbase. The US Senate on October 6 voted by a slim majority to confirm the appointment of Judge Brett Kavanaugh, a conservative, who was immediately sworn in as a justice of the US Supreme Court. At any other time, Kavanaugh's nomination to the highest court and the mandatory debate in the Senate Judiciary Committee, followed by a vote by al) members of the Senate, would have been a routine affair. But this time, the majority party decided to pull all the levers of power at its disposal to ensure that their nominee was confirmed and the hesitations and questions about his partisanship, past conduct and qualifications were set aside. The moral of the story: "the ends justify themeans,' a Machiavellian principle that predates the birth of modem democracy.
Let me step back a little to provide my readers with a little background to the hyper-charged drama that unfolded only two weeks ago. Three women had previously come forward, one of them as early as July, accusing Judge Kavanaugh of sexual misconduct and other forms of inappropriate behaviour when he was in high school and college. The most substantive charges came from Dr Christine Blasey Ford, a professor at Palo Alto and Stanford Universities, who accused him of sexually assaulting her when they were teenagers in the early 1980s. On September 27, the Senate Judiciary Committee, consisting of 11 Republicans and 10 Democrats, heard both Prof Ford and Judge Kavanaugh for almost eight hours. After the nationally televised testimony, the President gave a thumbs-up sign to Prof Ford. "She is credible,” he said.
However, the Senate sub-committee decided to ignore Prof Ford's testimony and pass on a recommendation to take a vote in the full Senate the very next day, and that surprised many, particularly the liberals and activists. Only after Sen. Blake, a Republican, at the eleventh hour and under pressure, requested an FBI investigation into the allegationslevelled by these women was the vote halted, and the matter was referred to the Federal Bureau of Investigations (FBI). However, the President, who authorised the follow-up investigation into Kavanaugh's past, tied the FBI's hands by restricting the scope, the duration, and the list of witnesses. Accordingly, the FBI interviewed only nine individuals, and did not even contact ail the female accusers nor others who had submitted sworn affidavits on Judge Kavanaugh's encounters with women, behaviour at social gatherings and his temperament. The FBI completely left out Prof Ford and Judge Kavanaugh at the instructions of the President.
The rush to finish the investigation and have Judge Kavanaugh sworn in as a justice of the US Supreme Court was somewhat unbecoming but understandable. The court began a new term on October 1 with eight judges on the bench. Republicans, the ruling party, and the President, were hoping that should Kavanaugh be elevated to the court, the party would benefit in two crucial ways: the Supreme Court would retain its conservative majority, and the party could reap some electoral benefits in the mid-term elections which is now less than a month away. One cannot be accused of cynicism if one views the whole process as a sham, and points the finger at the executive branch for shortchanging democracy in an effort to accelerate the nomination process and ensure that fudge Kavanaugh could be sworn in before the Supreme Court began a new term, for its own short-term gains.
There are many takeaways from the "Kavanaugh Affair". The executive branch, particularly at this critical juncture of US political history, is leaving no stones unturned to ensure that the legislature and the judiciary do its bidding. Both parties are keeping an eye on the coming elections. Democrats, with the expectation that they would regain control of the Senate, wanted to delay the Kavanaugh nomination to allow them to have their say after the election. Republicans, on the other hand, are fearful of that outcome, and want to ensure that they have a majority among the Supreme Court justices regardless of the outcome in the elections.
President Trump has a personal stake in the
composition of the Supreme Court in many respects. Kavanaugh believes in absolute power of the presidency. Since he might be facing prosecution for his interference in the 2016 Presidential elections, Trump can count on the Supreme Court to be in his favour by appointing Judge Kavanaugh to the vacant seat. According to Adam Gopnik of The New Yorker, Justice Kavanaugh on the bench was Trump's insurance policy to prevent that eventuality. It is known that Judge Kavanaugh opposes indicting a sitting President. In 2009, he wrote, "Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation."
US Presidents are held in high esteem globally. However, many saw the dark side of the current incumbent in recent weeks. After initially giving Prof. Ford high marks, he turned 180 degrees and started publicly mocking her at political rallies. As the head of the executive branch. President Trump should have let the legislative branch decide on the merit of the candidate and take its own course of action. However, the Senate did not have the authority to either ask for an FBI inquiry, nor did it diligently specify the terms of the investigation. The White House took advantage of an "unwritten protocol" and gave the FBI a very limited mandate. In other words, it ensured that the FBI's conclusions would go in Brett Kavanaugh's favour. In the final analysis, the FBI report was a "whitewash" (Sen Blumenthal), a "cover-up” (Sen Markey), and a "sham" (Sen Kaine).
The last time a nominee was rejected by the Senate, Robert Bork complained that he was unfairly denied a seat on the Supreme Court by politicians strictly for political reasons. He argued that in choosing Supreme Court justices and in confirming them, Presidents and Senators are not supposed to use political criteria. Interestingly, Judge Kavanaugh can only thank the political bias currently prevalent in the executive and legislative branches for his appointment, and that would only complete the politicisation of the judiciary.Dr Abdullah Shlbll Is an economist, and Senior Research Fellow, International Sustainable Development Institute (ISDI). a think-tank in Boston, USA. HIs new book Economic Crosscurrents will be published later this year.