The Kavanaugh Travesty: What It Reveals About and What It Portends for America

by David Balashinsky

The confirmation of Brett Kavanaugh as the 114th associate justice of the Supreme Court of the United States reveals several demoralizing truths about democracy in the United States of America.  Chief among these is that we are not, in fact, living in a democracy.  As Michael Tomasky has explained, we now have "two Supreme Court justices who deserve to be called 'minority-majority': justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and Senate [respectively] who represent the will of a minority of the American people."  This is, in part, due to the existence of the electoral college which installed Donald J. Trump as president of the United States despite his having lost the popular vote to his opponent, Hillary Rodham Clinton, who beat Trump by several million votes.  A majority of Americans who voted in 2016 chose Clinton as our next president.  Thanks to the electoral college, the losing side won.  That's not democracy.

It's also due to the constitutionally-established structure of congress which was created, in part, to guarantee a disproportionate amount of power to low-population states, which is why each state, irrespective of the size of its population, gets two senators.  At about the time the constitution was ratified (1788), the population of the fledgling United States was about 4 million.  By way of comparison, the population of Great Britain at the time was about twice that and the population of France about six times that.  In 1790, the population of free white males 16 or older in Pennsylvania was 110,788 while that of Delaware was 11,783, a ratio of almost 10 to one.  The total population of Virginia (the most populous state) in the 1790 census was 747,610 while the total population of Delaware (the least populous) was 59,094, a ratio of 12.7 to one.  It's impossible not to conclude that what might have been palatable to the delegates to the Constitutional Convention as a compromise between large-population states and small-population states in a nation of 4 million with disparities in populations between the states of no more than twelve-fold at the most (depending upon how - and who - one counts) is a gross perversion of democracy in a nation of 325 million.  (Of course, the failure of the original constitution to do away with slavery was an even greater perversion of democracy, and its accommodation by means of the Three-Fifths Compromise was intrinsic to the apportionment of seats in the House of Representatives and to the number of electors in the Electoral College.) 

Few political events illustrate this better than the Senate's confirmation of Brett Kavanaugh as an associate justice of the Supreme Court.  Consider this: Only the Senate - not the House of Representatives - gets to confirm or reject a nominee to the Supreme Court.  That means that Wyoming, for example, with a population of about 573,000 people, gets as many votes for Kavanaugh (or any other nominee) as California, with its population of 39 million people.  Here's some simple math:  Thirty-nine million divided by 573 thousand equals 68.  That means that each resident of Wyoming has 68 times as much clout in determining the ideological make-up of the Supreme Court as each resident of California.  Not only is that disparity multiplied across the United States but the political repercussions of these disparities are magnified also, since these disparities in proportional representation (by population) in the Senate give much more power to Republican and conservative voters relative to Democrat and progressive voters.  That is because low-population states (like Wyoming) tend to be Republican and conservative while high-population states, like California, tend to be Democrat and progressive.   Whatever the authors of the constitution intended in the 18th century, the result in the 21st is de facto affirmative action for Republicans and conservatives.  (This built-in advantage for Republicans and conservatives has been enhanced, unconscionably, still further by aggressive Republican political gerrymandering and Republican voter-suppression laws.)  That's not democracy either.

Now that the Supreme Court of the United States has a solid right-wing majority (which is being called, charitably, the most conservative court in close to a century) it's almost impossible to conceive of the amount of damage that can and will be done to the nation, to the principle and practice of democracy in the United States and to its citizens, particularly to women, LGBTQ citizens, ethnic and religious minorities, workers, consumers, borrowers, students, people who need affordable health-care or will need it at some point in the future, non-Republican voters and people who breathe air and drink water.  There is virtually no law or regulation that has been passed or promulgated to protect the interests, rights and well-being of the aforementioned that the masterminds behind Kavanaugh's installation on the Supreme Court will not now in all probability seek to have overturned.

Perhaps none of these rights is more important - and now more threatened - than the right of a woman to terminate her pregnancy.  Despite Kavanaugh's assurances to Senator Collins that he had not "made commitments or pledges to anyone at the White House, to [the] Federalist Society, or any outside group on how he would decide cases," (and we know, from his testimony before the Senate,  to what extent Kavanaugh's veracity may be relied upon), it remains an incontrovertible part of the public record that, during the presidential campaign, Donald Trump promised to nominate to the Supreme Court only judges who would overturn Roe v. Wade.

It is exquisitely perverse that the man now empowered to cast the deciding vote to do just that should be a man who, in his youth, may very well have committed a sexual assault and, thus, this nomination and confirmation also reveal a great deal about the state of women's rights and victims' rights in the United States.  Installing such a man - even one with only unproved allegations of sexual assault against him - on the Supreme Court constitutes an affront of monumental proportions to women and to women's bodily autonomy.  Kavanaugh will now, and for the remainder of his life, have the power to make decisions about the most intimate aspects of women's sexual lives and about their bodies up to and including decisions that will determine whether they live or die. 

In reference to the allegations by Christine Blasey Ford that Kavanaugh sexually assaulted her at a party sometime around 1982, Kavanaugh's defenders have lamented the lack of a presumption of innocence to which they claim he was entitled.  But, leaving aside the numerous ways in which Kavanaugh has proved himself to be wholly unfit for a seat on the Supreme Court, the fact remains that Kavanaugh was not charged with a crime and that is why the notion of a presumption of innocence is a red herring.  That principle applies in criminal proceedings, as it should, because state power should be limited at least to the extent that the state must meet the burden of proof in order to obtain a conviction.  If the state is purposing to deprive a citizen of life or liberty, its justification for doing so - hence its right to do so - had better reach a pretty high bar.  That's the burden of proof along with the presumption of innocence that are, together, the bedrock of western jurisprudence.  But those principles do not apply when someone is applying for a job, whether as a cashier or as an associate justice of the Supreme Court of the United States.

Even if one feels obliged, in the absence of absolute proof one way or the other, to give equal weight to Blasey's allegations and Kavenaugh's denials, the fact remains that, if Blasey were lying but the Senate believed her and, as a result, denied Kavenaugh a seat on the Supreme Court, the only injustice that would have been done would be to have wrongly denied Kavenaugh the seat.  On the other hand, if Kavenaugh were lying (or merely mistakenly believed himself to be innocent of the allegations because he committed the assault in a blacked-out state of drunkenness), the Senate's believing him and granting him a seat on the Court compounds the original injustice of his alleged sexual assault of Blasey.  In this case, not only would a sexual-assault victim be denied the dignity and justice of being believed but her attacker would be rewarded with a lifetime appointment to the highest court in the land.  On balance, and faced with the prospect of not knowing with absolute certainty whom to believe and thus having to risk doing an injustice to one of the parties - Blasey or Kavanaugh - the Senate was left in the unenviable position of having to choose between two possible injustices.  But given that choice, ought the Senate not to have chosen the lesser of those two possible injustices?   And which is the lesser and which the greater of these two injustices?  That of an innocent man wrongly denied a lifetime seat on the Supreme Court?  Or that of a guilty man wrongly granted a lifetime seat on the Supreme Court?  To me, the answer is obvious. 

It has been argued that if Kavanaugh is, indeed, innocent, then the harm that may have been done to him transcends the harm (if one may call it that) of not getting a seat on the Court.  After all, it is difficult to wipe away the stain on one's personal and professional reputation of an allegation of sexual assault.  (Unless, of course, one happens to be Donald Trump, for whom committing sexual assault is something to boast about.)  Obviously, a false allegation of sexual assault can take an enormous toll on one's personal and professional life.  But an actual sexual assault will, even more obviously, take an even greater toll on one's personal and professional life.  That is the context in which Blasey's allegations and the shameful way in which the Senate responded to them must be viewed.  The manner in which Kavanaugh's defenders have sought to dismiss and delegitimize Blasey's allegations are of a piece with the manner in which victims of sexual assault have historically and routinely been silenced and their claims dismissed.  It is the rape victims, themselves, who are typically, in effect, put on trial: "What were you wearing?"  "What were you doing at his house without a chaperone?"  "Had you been drinking?"  "Did you lead him on?"  "Why didn't you fight back harder?"  "Why didn't you report this to the authorities when it happened?"  "Why didn't you tell your parents?"  The societal practice of blaming the victims of sexual assault is only one of many reasons why they are reluctant to come forward and report the crime.  

Here, too, then, society must choose between two competing but grossly unequal injustices.  If sexual-assault victims are made to feel that it is they who are the ones on trial, they will seldom report their assaults and they will even more rarely get justice.  Conversely, if we presume in all cases that someone alleging a sexual assault is telling the truth, then it's certainly possible that some innocent persons' reputations will be wrongly tarnished (and even some innocent persons falsely convicted, as has occurred in rare cases) with false allegations.  Studies, however, have demonstrated that this rarely occurs.  The reality is that the number of sexual assaults that go unreported and unpunished dwarf, by orders of magnitude, the number of confirmed cases of false sexual-assault allegations.  That being the case, while it is unfair to those rare victims of false sexual-assault allegations to be personally or professionally harmed by them, I believe that society has a much greater and more urgent interest in protecting actual sexual-assault victims who are much greater in number and much more egregiously harmed.  (And, of course, in criminal law, the accused enjoys the presumption of innocence and convictions for sexual assault remain notoriously difficult to obtain.)  After all - and let's not lose sight of the big picture here - I think we can agree that it's much, much worse to be actually raped than to be falsely accused of rape.  And it's certainly much, much worse to be sexually assaulted than not to get a lifetime appointment to the Supreme Court of the United States.