What the Kavanaugh hearings say about American rule of law

The hearings on the confirmation of Judge Brett Kavanaugh to the Supreme Court tell us a lot about the rule of law in the United States.

Specifically, the hearings call into question the notion that the United States is a rule of law society.

Here are three points to make:

(i) The American judiciary is effectively a political instrument. Americans bore witness to the reality of a political judiciary in 2000, when the conservative block of the Supreme Court ignored settled case law in Bush v. Gore to appoint the Republican candidate to the United States.

But even after this, Americans have wanted to pretend that the judiciary could still be independent. Even in the face of ruling after ruling that expanded the powers of corporations, money in politics, and the Executive branch — making it increasingly difficult to challenge the powerful.

I’m not sure that this fiction holds true for many people any more after these hearings. Judge Kavanaugh’s rant against the Clintons and the Democratic Party, blaming them for the women coming forward with allegations of improper sexual conduct by the judge, was provocative for exposing the truth of a political process.

In combination with Judge Kavanaugh’s appearance on Fox News, it has become obvious that the Supreme Court is now nakedly political.

(ii) A political judiciary calls into question impartial justice. There is no greater crisis for a society than systemic injustice. When people feel that the courts are instruments of oppression, and that a government will not provide effective, impartial dispute resolution — this is the moment when a society starts to unravel, sometimes even violently.

A political body can never function as the source of independent and impartial justice. By becoming openly partisan, the legitimacy of the Supreme Court as a neutral body is in serious doubt.

At the Kavanaugh supplemental hearing on September 27, 2018, the public bore witness to a grown man in his 50s acting with a petulance that is reserved for princelings. Judge Kavanaugh repeatedly cited to his privilege and his pedigree as reasons for his impartiality: as if the poor and the exploited have no sense of justice. Judge Kavanaugh’s ridiculous retort to Senator Sheldon Whitehouse (RI), “Senator, what do you like to drink?” — as if the whole world is a giant fraternity party, and Judge Kavanaugh is serving from the keg — will no doubt be remembered as tone deaf and arrogant as Marie Antoinette’s advice that the peasants should eat cake.

(iii) The judiciary is now an open agent of imperialism. A single “dark money” group, the Judicial Crisis Network, reportedly spent $7 million to block the appointment of Judge Merrick Garland, another $10 million to support Judge Neil Gorsuch, and yet another $10 million on Judge Kavanaugh.

There is just too much money that is invested in having another member of the Supreme Court who will shield corporations from accountability, give the Executive Branch wide powers, particularly in war (war, after all, is highly profitable in the United States), and prevent restrictions on campaign finance laws that permit the rich to buy and sell elected officials.

In that sense, the Kavanaugh hearings indicate the extent of domestic imperial policies. Like Trump, one wonders if Kavanaugh could have shot someone on Fifth Avenue and still found his way onto the court.

Is there a bright side to the Kavanaugh hearings? The mask of democracy has been pulled off of the American government. The world can see what is there. The world can see the visage of empire and cruelty — exposed for what it is.

Whether that will be sufficient to inspire an American democratic movement in response is an entirely different question.