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(Saul Loeb)
The battle over the confirmation of Supreme Court nominee Brett M. Kavanaugh has roiled the country and — yet again — highlighted the depth of polarization in American society.
Kavanaugh, a federal judge in Washington who is a longtime favorite of conservative activists, has been accused of sexual conduct by three different women. Both he and Christine Blasey Ford, who says Kavanaugh sexually assaulted her when they were both in high school, delivered emotional testimony about her allegations before the Senate Judiciary Committee last week.
That hearing has become a grim political Rorschach test. Many Republican politicians and Trump supporters saw a furious and sometimes tearful Kavanaugh as the true victim; Ford’s supporters contrasted her measured but searing testimony against what they saw as the histrionics and lies of her alleged attacker. That mirrored the broadly partisan split in public opinion over Kavanaugh’s fitness for the court and the credibility of the accusations. A final Senate vote on his confirmation is expected later this week after a short FBI investigation into those claims.
But it’s not just Americans who have been watching. My colleague Siobhan O’Grady charted the international response to Thursday’s hearing, which was beamed across the world.
Some found inspiration in the airing of sexual violence allegations in the loftiest halls of power. “I wonder if some day in India, in appointments to the judiciary, there will be a strict scrutiny of the nominee’s conduct and treatment toward women?” asked Vrinda Grover, a high-profile Indian lawyer, in a Facebook post. “Some day will indecency, sexual misconduct be the deciding factor in appointments to the judiciary?”
Others saw only a sordid mess. “I simply cannot imagine any country in Europe carrying out such a bizarre hearing, least of all one for all the world to see. It showed the U.S. in a very poor light,” a British reader wrote to the New York Times. “Some might say that it was at least transparent, but what it showed was a country massively at odds with itself and in no way fit to lead in the world.”
Guardian columnist Jonathan Freedland saw in Kavanaugh’s defense the same “toxic masculinity” as that of President Trump, Philippine President Rodrigo Duterte — who jokes about rape — and other right-wing populists around the world.
“It is a swaggering machismo that believes rules are for limp-wristed wimps; that in its most radical form places itself above the law,” wrote Freedland. “This phenomenon stretches beyond the partisan battles of Washington DC, beyond even the battlefield of sexual harassment: it is instead a core, if underplayed, aspect of the populist wave currently upending the politics of Asia, continental Europe and Britain.”
Nana Agyei Baffour Awuah, a prominent Ghanaian lawyer, expressed his disbelief over Kavanaugh’s diatribe against the Democrats during his testimony. Kavanaugh, he told O’Grady, “failed the temperament test, also the independence of the impartiality test for me." He also reckoned that a “cross-party consensus” in Accra would have nixed the candidacy of such a politically compromised judge.
The perils of politicization have been hanging over the Supreme Court for years, culminating in the Republicans' success in preventing President Barack Obama from filling the vacancy left by the death of Justice Antonin Scalia, a conservative icon. The bitter, existential nature of these fights has led many to call for reforms to the court, including the imposition of term limits. That’s a practice widely used in other parts of the world.
“Many European nations have age or term limits for their Supreme Court justices, unlike the United States’ lifetime appointments that turn nominations into a kind of actuarial battle,” noted my colleague Rick Noack earlier this year. “German judges are replaced after 12-year tenures or when they turn 68, whichever comes first. Their Swiss counterparts must resign at the same age and need to be reelected every six years. Similar rules are in place in Norway, Italy and the United Kingdom."
Of course, the polarization of the country is the actual cause of this mounting sense of crisis. The Republican refusal to jettison Kavanaugh — whose testimony hardly strengthened his case — in favor of any number of less problematic nominees has underscored the tribal animus that has wholly captured American politics.
“Perhaps the collapse of modern conservatism came out most clearly in Kavanaugh’s own testimony—its self-pity, its hysteria, its conjuring up of conspiracies, its vindictiveness,” wrote Eliot Cohen, a former official in the George W. Bush administration and a self-declared conservative. “No one watching those proceedings could imagine that a Democrat standing before this judge’s bench in the future would get a fair hearing. This was not the conservative temperament on display. It was, rather, personalized grievance politics.”
If the Democrats steadily win back power in upcoming elections, they may attempt to expand the court and pack it with liberal justices — a move once attempted by Franklin D. Roosevelt. “Both sides will prize ideological purity over competence and independence of mind,” warned the Economist. “Down this path lies the dark day when another part of the government takes the decisive, perhaps irretrievable, step of ignoring a Supreme Court ruling. And at that point the constitution’s checks and balances come tumbling down.”
In last week’s hearing, worried onlookers abroad saw the withering of democratic norms. “On Thursday, millions of Americans could follow live something that looked like a search for truth, but only on the surface," wrote Carsten Luther of Germany’s Zeit newspaper. “It was not about taking the alleged victim of a sexual assault seriously while maintaining the presumption of innocence against the alleged perpetrator until the opposite could be proved. Power and the fear of losing it were the motivations for the spectacle, which, playing out over hours, showed what divides this country."
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