Sunday 7 October 2018

To the Weinsteins and Dr. Peterson,

It's not very often that I disagree with JBP, and when I do I feel a need to articulate why. Today, he said something in response to Eric and Bret Weinstein, that I vehemently disagree with, so I'm going to say so, and I'm going to try to explain why.

First off, please understand that I am not criticizing the intentions of anyone in this conversation (Peterson or the Weinsteins). Particularly given JBP's clarification:

I don't know how closely any of them have been watching Kavanaugh's confirmation process, or whether they're getting their information from primary (the hearings and his judicial opinions) or secondary (the media) sources. I'm guessing that none of these gentlemen have the kind of time on their hands to have watched the hours and hours of live testimony after Dr. Ford's allegation was leaked, or to go back and watch a bunch of the earlier testimony, or to investigate some of the more egregious things that have been brought out in the open that have occurred since the nominee was chosen.

And this is not to say that I have done an exhaustive investigation of Kavanaugh’s judicial record, despite the fact that I actually enjoy reading judicial opinions. (Call me crazy, but I find the nuances of the law to be very interesting.)

I had a lot of time to sit and watch and be engrossed and amazed and appalled and intrigued. I even, a week ago or so, went and looked at the votes-by-party summaries for Supreme Court Justices from Scalia (1986) onward. What is revealed there is a clear trend away from bipartisan unity and toward partisan antagonism.

The politicization of Supreme court nominations has been 30 years in the works. Scalia—perhaps the most conservative Justice in recent memory, and the most hated by the left due to his strict adherence to the text of the law and the original intent of the Constitution—was confirmed with 98 votes in favor and 2 abstentions. Kennedy (1988) got 97 votes and 3 abstentions, and the vote was 50 Democrats and 47 Republicans in favor despite the fact that Reagan nominated him. 

Clarence Thomas was the first anomaly, but even he got 11 Democrat votes, allowing him to squeak in despite the Democrats holding a majority in the Senate at that time. And while there was a return to unity afterwards, with Ginsburg and Breyer, both appointed by Bill Clinton, things started to become more distinctly partisan from that point on.

And now here we are. Gorsuch’s confirmation saw three Democrat senators voting for Trump’s first SCOTUS nominee, primarily because their electorates were pro-Trump and they have a normal sense of self preservation. 

This time around, however, only one of these three dissidents was prepared to break ranks with the party.

Having watched hours of testimony and read thousands upon thousands of words, and listened to Senator Susan Collins (a staunch pro-choice Republican) speak for 43 minutes, I’m going to have to say, Democrat opposition to Kavanaugh is much ado about nothing.

There is nothing in this man's judicial record that should scare anyone.

And yet I sat on a stage in September with “Faithless Feminist” Karen Garst and heard her express her fear about Roe v Wade being overturned now that Kavanaugh was shaping up to be the next Supreme Court Justice.

According to Senator Collins, nothing could be further from the truth. Kavanaugh appears to be a true conservative, in that he will prioritize adherence to the law, the constitution and precedent over using his position to push for sweeping changes in the absence of extraordinary circumstances, whether in a forward-looking direction or a backward-looking one, and regardless of his personal or political opinions. This includes Roe v Wade, which has been reaffirmed by SCOTUS more than once since it set precedent, decisions which add weight to the initial precedent and on which Kavanaugh has commented positively.

When Collins spoke to him about the right to choose, his response was that it is a case of precedent on precedent on precedent, each affirmation bolstering the original, and the passage of time cementing it in place such that one would need extraordinary justification to overturn its underpinning principles.

That's what a genuine conservative is. A keeper of things as they are, based on tradition, precedent, and durability over time.

For a Republican appointee who is also Catholic, the Democrats couldn't ask for much better than Kavanaugh, particularly when it comes to women's reproductive rights. His entire record speaks of a man who thinks, "it's best to keep things as they are, unless there's a VERY compelling reason to change that." That includes Roe. 

As Senator Collins mentioned in her speech, special interest groups scrambled to be the first to publicly register their objection to Kavanaugh. One organization put out a press release saying as much, a document we know was written in advance of the announcement, because some PR staffer had embarrassingly forgotten to replace "XX" with Kavanaugh's name (I actually read that press release when it came out, and had a good chuckle. I'm not chuckling so much now). 

One Democrat senator, she added, vehemently stated his objection to the nominee after the announcement that a decision had been reached, but before the actual name of the nominee was known. 

This was never about Kavanaugh. It was always about “whoever Trump picks”.

It’s not a genuine objection to Kavanaugh’s qualifications, his judicial record or his politics. It's not even a shining #MeToo moment of solidarity with a survivor. 

It’s Trump Derangement Syndrome by Proxy.

I’m sure there are some people who believe Dr. Ford was sexually assaulted by Kavanaugh, just as I know there are people who believe Kavanaugh is innocent of the charges. To them, I say, you are making a claim to know what you cannot know.

But one thing we DO know--Dr. Ford asked that her allegation be kept confidential. We know that the allegation could have been investigated by the FBI and Dr. Ford’s testimony given in private during the initial confirmation hearing, without revealing her name.

We know that the allegation was in the hands of Senator Feinstein (the ranking Democrat on the committee) for more than forty days before it leaked, and that Feinstein could have taken advantage of the above measures during the initial hearing and thereby protected Dr. Ford’s privacy and dignity, and concealed her name from the press and the public. 

None of this was done. Instead, the hearing was closed after 32 hours of testimony from Kavanaugh, and more questions put to him, and more handing over of documents by him, than the last five Supreme Court Justices combined. 

Everything about his career was scrutinized with a scanning electron microscope, and he came out looking like a boring boy scout. 

And then the allegation leaked. To the best of anyone’s knowledge, only three parties had knowledge and possession of the letter. Democrat Senator Feinstein and Democrat Representative Eshoo (and their staff), Dr. Ford, and Dr. Ford’s lawyers (one of whom was apparently improperly recommended to her by a Feinstein staffer). 

The leaking of the letter to the public meant that the Democrats could take another run at Kavanaugh during the run-up to the midterms, where they hope they’ll be able to secure a majority in the Senate. As Lindsey Graham (hereafter to be referred to as “Grahambo”) said during that hearing, the Democrats on the committee had their minds made up from the start, and the allegation, the testimony and the demands for an investigation amount to little more than creative filibustering until after the midterms.

So who leaked it? I don’t know, but I’d really like to. Because the leak of that letter took the process of confirmation from the cynically partisan joke it had already become, all the way to a three ring, #MeToo, virtue signalling circus. 

Bret Weinstein said both possible outcomes of the vote would be "completely unacceptable". I disagree. There's nothing objectionable about Kavanaugh's judicial record.

Eric Weinstein said that “everyone thoughtful” he’s spoken to about Kavanaugh agrees that both potential outcomes are unhealthy and unworkable. I disagree. The "thoughtful" people he's spoken to don't understand what's really at stake here.

Jordan Peterson responded that he thought, if confirmed Kavanaugh should step down. That is, make the big public sacrifice for the sake of fostering unity in an increasingly polarized nation. 

I disagree. 

We know from Gorsuch that anyone nominated by Trump would garner default “no” votes from the Democrats. I’m actually kind of shocked that there were three Democrat dissenters in the case of Grosuch, and a whole ONE dissenter in the case of Kavanaugh.

I understand why a progressive like Bret Weinstein would think Kavanaugh is a poor choice for the Supreme Court. He's not. In fact, I don’t know why Bret Weinstein thinks the Dems' opposition and their collective hysteria has anything at all to do with Kavanaugh. 

It doesn’t. 

According to the Democrats, Trump has the reverse Midas touch—everything he puts his hands on turns to shit, triggering moral disgust and the urge to purge. If Trump likes something, the Democrats are morally obligated to hate it. If Trump does something positive (like, I don't know, getting North Korea to chill out a bit), the Democrats are obligated to predict the end of the world.

I have no idea whether Eric Weinstein's belief that the reason Kavanaugh is “divisive”—that Kavanaugh would "break the political symmetry" of the Supreme Court—is correct. 

The only way it CAN be correct is if we are to accept that SCOTUS is not a legal body but a partisan political one. That it is not beholden to the law (in all its forms, from the Constitution to statute to precedent), but rather that it is a forum for partisan activism on the part of the Justices at the political whim of the president, or the majority in congress, or both.

Brett Kavanaugh strikes me as a judge who eschews activism. Who eschews "big" decisions that take us forward (or backward) by leaps rather than increments. 

But again, this isn't about Kavanaugh. It's about sticking it to Trump.

And I have no idea whether JBP realizes that it wouldn't matter who Trump named as a nominee--the reaction from the Democrats, their media lapdogs and the pussy hat-wearing, mass-produced placard-waving, Ashley Judd-worshipping, #MeTooing leisure class of well-heeled feminist do-gooders and progressive Hollywood moral busybodies would have been the same no matter who the nominee was. Trump could have nominated a clone of Ruth Bader Ginsburg in the body of a black lesbian in a wheelchair, and they’d have found some reason to vote against her (I exaggerate, but not by much). 

Just look at the media over the last few days. When it looked like Dr. Ford's spaghetti wasn't sticking to the wall, what was the next “big controversy”. OMG, one time in college at a bar, Brett Kavanaugh threw ice cubes at a guy during a heated disagreement. Surely THIS is sufficient to demonstrate Kavanaugh lacks a proper judicial temperament. 

Never mind that the ONLY aspect of his judicial record—you know, the record that matters—that the Democrats don't like is his distinct lack of impulsivity.

Surely this conclusion—that nothing whatsoever was going to convince the Democrats to accept ANY nominee put forward by Trump—is supported by the two examples given by Senator Collins. Surely it's further demonstrated by declarations on the part of the Democrat members of the committee that they would vote no on Kavanaugh long before they had even held the first hearing. 

And now, with the ink on his confirmation papers still wet, Democrats and left wing political action groups are petitioning for Kavanaugh’s impeachment, if and when they gain a majority after the midterms.

As Jordan tweeted, legal scholars warn it’s a terrible idea that if successful would set a dangerous precedent and completely undermine public perception of the stability and reliability of the highest court in the US. It would essentially turn SCOTUS from an independent and apolitical body that provides a necessary check against the potential excesses of the other two branches, into an exercise in partisan rubber stamping, with the bench politically subordinate and subservient to whatever party holds the majority.

A petition to impeach Kavanaugh has already garnered over 125,000 signatures, all from people who have not one clue what would be destroyed in the process.

And here we come around to Jordan’s suggestion that Kavanaugh should step down, for the sake of bringing the highly polarized American left and right back together. In a perfect world full of perfect people, sure. He should know better.

The truth is, this isn’t a world of perfect people. When my fiance gets upset over how so many people behave, how they act on base instinct and then back-rationalize what they did (in whatever context, but particularly in those that can be characterized as “us vs them”), I tell him to imagine two troupes of chimpanzees, screeching, whooping, thumping their chests and throwing smartphones at each other. Because that’s exactly what they're doing.

And that’s exactly why we have these institutions and their processes, regulations and procedures designed to take the chimpanzee in all of us out of the equation. It’s why we have the system of checks and balances in the first place. It’s why the law is written down, and why bad decisions can be taken to higher courts. It’s why a successful impeachment and removal of someone from public office requires a supermajority of 67 votes.

All of these things are there to put obstacles and barriers in front of the chimpanzee that exists in every single one of us.

If Kavanaugh steps down, it won’t bring the two sides back together. 

The right will see it as either a noble sacrifice or a betrayal. The left will call it evidence that Kavanaugh probably IS a sexual predator merely looking to avoid more and deeper investigations, and, more importantly, they’ll see it as evidence that they can get what they want by corrupting the confirmation process and making a mockery of what was once a sober, nonpartisan deterrent to mob rule.

That those interested in corrupting that process to their own ends are on the left is immaterial. Whether you believe Dr. Ford is a victim of sexual assault, or Justice Kavanaugh the victim of a wrongful accusation, is immaterial. The real victim if he steps down will be the integrity of both the process and of the highest court in America.

Worse still, if he’s impeached and the impeachment is successful, the entire system will be destroyed by this abuse of process. A system designed to depoliticize at least one branch of the federal government, keep it beholden only to the law, and protect it from the vagaries of the partisan mob. 

This is not about the presumption of innocence. As important as that presumption is in the strict legal sense, and as a cultural value, presumption of innocence is a difficult case to make in a situation where someone has been subjected to half a dozen thorough FBI background checks just to get the job they’re applying for. Kavanaugh willingly subjected himself to an invasive process that sets aside that presumption. Seven times now. Because of the enormity of the authority he will wield and has wielded in the past.

That is a necessary part of the vetting process if you want to do the type of work that involves the complete trust of the public. The process found NOTHING on his record as a judge suggesting he would abuse that authority or violate that trust and through the commission of his service bring the Supreme Court of the United States into disrepute. 

The process found nothing, despite the fact that even before Dr. Ford’s allegations were made public, Kavanaugh had jumped through more hoops than any SCOTUS nominee has ever been forced to, and he did so with humility and without complaint. 

“Why aren’t you calling for an investigation into Dr. Ford’s allegations, Judge Kavanaugh?” he was asked over and over again, by people who should know (at least I would hope they know) that it’s not his call. The nominee has no jurisdiction to call for an investigation—that’s the goddamn committee’s call. He could demand one until the cows come home, but it’s not his decision to make. All he can do is cooperate with the committee’s decisions to the best of his ability. And he has.

The Democrats have abused this process for political ends, cynically sacrificing Dr. Ford’s privacy and violating her trust, subjecting Kavanaugh and his family to the same, for no good reason, and all of it is justified to them as necessary collateral damage in their quest to stick it to Trump by any means necessary. 

That Kavanaugh’s justifiable anger at this shit show, that his emotionality over the more ludicrous accusations made against him in the liberal press, utterly unvetted accusations presented with a drooling, fapping, titillated, eager credulity so ravenous and gross it could only be self-serving... 

That this is now being used against him to criticize his judicial temperament and deem him unfit for the bench… Well, that’s like kicking a man in the balls and then saying he retroactively deserved it because while he was writhing in agony on the floor, cradling his battered testicles, he raised his voice and used harsh language.

And this petition to impeach? Just this moment, my son (all of 16 years old) said, "why not just impeach everyone then?" Why not, indeed? Because that would be stupid and dangerous and would throw everything we value away. He added, "Meh, no more Supreme Court. Might as well not exist. Just impeach everyone. The mob knows best."

This entire process has been turned into a joke. And if the Democrats are able to get what they want out of it, whether because Kavanaugh nobly but futilely falls on his own sword, or because the Democrat mob opts to impeach—the equivalent of pulling a fire alarm to shut down a speaker they don’t like—it will open a door we do NOT want opened.

It will invalidate the integrity of the entire process and turn the highest court in the United States into the political majority’s partisan prostitute.