New York – Elections matter; Lindsey Graham is right about that observation. The party that controls the White House gets to nominate; and the party that controls the Senate, the “Cooling Saucer” as George Washington then-correctly noted, gets to “Advise and Consent,” an act between Constitutional “partners.” Only in times when a single party is controlling both White House and Senate, that Separated Powers’ dissent-benefit is reduced – as in President Obama’s First Term and now in President Trump’s First Term.
It’s on Harry Reid and Barack Obama that the Senate Rule of 60 for judicial confirmation was abandoned, and by so doing hyperpartisianship was allowed to affect the noble bench as the Senate became the “boiling pot” it now is, kept red hot by the disintermediating Social Media (SM) and each party having its own opinion-supporting media outlets. That, perhaps, is the worst of all: as the SM & Partisan Media-Genie may never go back in the bottle!
We are now a nation sharply divided, as we were before the Civil War – but for very different reasons; one structural (SM), and the other temporal: economic (as for too many Americans, the American Dream has become impossible to achieve). Dealing now only with the structural – our representative form of government – aka a Republic – its very structure was designed to cool off, at each circuit breaker-level, “hot” public sentiment and prevent induced-Mob Rule. Mob Rule doesn’t mean the guillotine during the French Revolution, but rather to avoid the insufferable tyranny of simple majority – something tried, and failed over 2000 years ago in the City-State of Athens during the time of Socrates. As termites can destroy the wooden structure of a house, social media is destroying our Republic, with each side fueled by their own media, and converting our Constitutionally-cool “representatives,” be it the president, senators or representatives, into “warriors. “Representatives” are expected to sit, talk, deliberate, and together make bipartisan deals as our our Constitution was designed to do with the Separated Powers regime & cherished-Dissent, enshrined in the First of all Amendments and core of American Exceptionalism. Politial “Warriors” have weaponized politics, make war and bipartisan coming together for the greater public good be damned. We all just saw in horror the Kavanaugh Confirmation, a scandal worse than what occured 30-plus years ago or the emotional self-defense by a nominee to the most powerful bench in history, let alone its most powerful swing seat.
What happed between then-teenagers, Dr. Ford and Justice Kavanaugh only a trial, without a statute of limitations’ bar, could have proven – with presumption of innocence and cross-examination, the perfectly balanced Ying and Yang core of American Rule of Law. What we just witnessed was the grant and imposition of Presumptive Innocence without grant of the Constitutional full & free right to Cross-Examine – before an independent & impartial jury and judge. Senator Collins’ historic confirmatory speech contains a core farce – as no Prosecutor could ever win a single case in similar setting, as the accused and his supporters imposed a straight-jacketed on the Prosecutor/Accuser by denying their Constitutional right to cross-examine and present all witnesses – let alone before an independent jury and judge. Transplanting “Presumption of Innocence,” without granting right to Cross-Examination and presentment of all relevant witnesses, and that too without an impartial Judge deciding what is relevant, and a verdict to be rendered by an impartial jury: believe 100% certain Accuser-Ford or 100% certain Accused who denies. Before a doctor transplants a heart, there has to be a full body into which the transplanted heart can beat. Here, the “heart” was made to beat without a body that included an impartial judge and jury.
While the Senate isn’t a trial, as it lacked both an impartial & independent jury and judge, but their grant of presumptive innocence while denying the Prosecutor/Accuser right to cross-examine and present all witnesses was fundamentally un-American and fatally unjust.
That said, I supported J. Brett Kavanaugh – as what he was alleged to have done with Ford & Ramirez, his own age group as over-zealous frolicking students can (very different from a fiduciary-Priest sexually assaulting a child), is perhaps of no moment to him and unworthy of memory; while the same event had a very different effect on the “girl.” A point made sharply by the different effect on Ford, as compared to Ramirez from two different allegations: in high school and at Yale. This is a societal issue for all of us together to be address: sensitizing our children (and adults) against Sexual Assault. I expect Justice Kavanaugh in his opinions will rise to champion survivors of sexual abuse. It would be poetic justice.
On September 20th, I tweeted: “Dr. Ford do NOT become AnitaHill – UNFAIR2 daughters/mothers; reject @ChuckGrassley KindOffer. It’s a fair4some: J.Kavanaugh ought not be held2TeenError.”
The 50-48 Confirmation by a boiling, not cooling saucer, Senate is our larger problem as it robs us all – both sides – of what since 1776 we have rightfully claimed to be the very best in Humanity – well past the Magna Carta.
Upon his confirmation, I tweeted: “Godspeed Mr. Justice Brett Kavanaugh – we wish your better angels to help guide you to find true & compassionate justice with logic for most of the distance and faith for the balance; and deliver on Lincoln’s Gettysburg Covenant of Govt FOR the People”
We need to save our Republic, to remain “Exceptional” and “American.” If we do that, harness SM to spread equality and fairness, then the politicians who weaponize mere majorities will fall, and the Supreme Court will not be called upon to settle Political or Societal disputes, and merely abstain as it gloriously did for almost two centuries.