Brett Kavanaugh debate exemplifies culture war between left and right

Supreme Court Justice Brett Kavanaugh is either a sexual brute or a badly-aggrieved victim of a witch hunt. The debate on this question exemplifies two diametrically opposed approaches to justice that, in turn, express an important aspect of today’s culture war between left and right.

The anti-Kavanaugh side typically proceeds from an “I believe the victim” position. An accuser is automatically granted victim status, and the burden of disproof is on the accused. The pro-Kavanaugh side typically defends traditional western jurisprudence by which an accused is accorded due process protections, such as the presumption of  innocence; the burden of proof is on the accuser. 

The first approach is called “trauma-informed justice” because it prioritizes giving a sympathetic response to a traumatized person. In sexual abuse cases, the accuser is usually a woman. Those who question the allegation are said to be “blaming the victim” and revictimizing her for the sin of coming forward.

The second approach to justice is due process that is organized around a neutral examination of evidence according to traditional rules of fairness. In allegations of sexual abuse, the accused is usually male. Those who object to an evidence-based legal structure are seen as trying to railroad an accused.

Trauma-informed justice has gained traction in recent decades, partly because people empathize with victims of sexual violence, and properly so. Reform of some legal procedures and attitudes may well be necessary. But there is a world of difference between smoothing the sharp edges of traditional jurisprudence and gutting its core. The two forms of justice are antithetical. Both sides of the debate will persist, however, because the political stakes are huge: control of the Supreme Court. 

The current war for the Supreme Court can be traced back to President Obama’s 2016 nomination of Merrick Garland to fill the vacancy created by the death of conservative Justice Antonin Scalia. Senate Majority Leader Mitch McConnell (R-Ky.) refused to initiate proceedings to confirm Garland, saying that whomever was elected president in the coming months should nominate the replacement candidate. Democrats seethed.

When Donald Trump was elected, he inherited 88 district and 17 court of appeals vacancies that Obama had neglected to fill. As of Sept.19, 152 Article III judges have been nominated by Trump and confirmed by the Republican-controlled Senate. (Article III judges are authorized by that section of the Constitution). 

The number includes two Supreme Court judges. Given Justice Ruth Ginsberg’s advanced age and unpredictable health, another Supreme Court appointment may occur before next year’s election.

To control or to maintain a balance in the court’s political makeup, Democrats are pursuing various strategies, all of which rest on the contention that a serious problem exists. The motive seems clear; the sitting Supreme Court needs to be discredited to prevent it from blocking Democrat policies. 

To do so, the Democrats are using a trauma-informed approach to attack Kavanaugh repeatedly. As the Wall Street Journal opined in a headline, the real target is the Supreme Court itself: “The Assault on the Supreme Court. The revival of smears against Kavanaugh is part of a campaign.”

The most popular campaign seeks to restructure the Supreme Court by increasing the number of Justices. The dynamic is called “court packing.” The last president to attempt it was Franklin D. Roosevelt in the late 1930s in order to keep the court from obstructing his New Deal legislation; the attempt failed badly.

The current motive behind restructuring is similar to FDR’s. As it sits, the Supreme Court may hobble Democratic causes from climate change to abortion. Consider gun control. On August 13, a FOX News headline read, “Senate Dems deliver stunning warning to Supreme Court: ‘Heal’ or face restructuring.” High-profile Democrats Included a threat in their amicus brief on an anti-gun law in NYC. “The Supreme Court is not well,” it stated. “And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.'” The language quoted was “from a Quinnipiac University poll, in which 51 percent favored such restructuring. In the same poll, 55 percent believed the Supreme Court was ‘motivated by politics’ more than by the law.”

The Democrats want to “take” the third branch of government, as they took the House. Mayor Pete Buttigieg was among the first to call for court packing by the next president — presumably a Democrat — as a way to depoliticize the court, but it is now a common refrain. 

Supreme Court packing would require a constitutional amendment, which requires widespread support. This means stirring up public opinion and pressure. Nothing accomplishes this more quickly than emotional stories of sexual victimization.

The first Kavanaugh confirmation hearing in late 2018 became a circus as the trauma-informed proceedings clashed head-on with demands for due process. In the end, Republicans ceased the debate through cloture (51-49 votes), and they emerged with a confirmed Supreme Court Justice (50-48). The Democrats must have been both frustrated and encouraged by the close vote.

Perhaps a second run at Kavanaugh — this time to impeach — could be successful? Even if the attempt failed, the furor created by another sexual scandal might  facilitate a restructuring of the Supreme Court.

The battle comes down to whether trauma-informed justice can prevail over traditional jurisprudence. This time the emotion versus evidence debate will play out in public opinion and the House, not the Senate. Much depends on the outcome — not merely the structure of the Supreme Court but also the content of justice.

Wendy McElroy is an adviser to the Future of Freedom Foundation.