A Failing Governmental Process

A Failing Governmental Process

© David Burton 2018

Kavanaugh Confirmation Process

     With the nomination and confirmation of Brett Kavanaugh as the 114th U.S. Supreme Court justice, it would seem appropriate to stand back and to review what has transpired. Unfortunately, the view backward in time is a dismal one!

     Something has gone terribly wrong when the Senate of the United States cannot review the qualifications of a Supreme Court nominee and vote for or against the nominee simply on the basis of his/her competency and his/her judicial record. Something has gone terribly wrong when U.S. Senators cannot temporarily put aside their political affiliations in order to decide on who should sit on the bench of our Supreme Judicial Court.

     Once again Donald Trump embarrassed himself, his party, his office and the nation with his ill-conceived remarks concerning his nominee’s accuser. He made the unseemly spectacle taking place worse. Senate Democrats showed themselves to be irresponsible and unwilling to be make an honest judgement.

     During the Kavanough hearings, too many Republican and Democratic have shown that that they do not represent their constituency or cannot be trusted to act in the best interest of this nation. Too many of these politicians have unmistakably shown that they are too beholden to their political parties. In the case of the Democrats, they “revealed their true colors during the nomination proceedings for the new Supreme Court Justice Brett Kavanaugh, from the repeated disruptions by protesters that led to more than 100 arrests, to the unsubstantiated, refuted or flat-out ridiculous allegations of sexual assault against Kavanaugh.
    ”Voters know foul play when they see it. They know our justice system is founded on the presumption of innocence, which Democrats abandoned when faced with another conservative justice joining the Supreme Court. They trampled on any semblance of due process. Evidence be damned.
     “It [likely has} backfired spectacularly. . . . Female voters . . . don’t want their husbands, sons and brothers being subjected to fake raps or allegations or other serious charges based on zero corroborating evidence for the sole purpose of keeping ruthless liberals in power.” (Ref. 1)

     In all the testimony and in all of the evidence presented, now Associate Justice Brett Kavanough was found to be highly qualified and there were no judicial black marks on his record as a judge. Still, only days after his confirmation, there were Democrats and others with their personal agendas calling for Kavanough’s impeachment. One item on their misguided agenda may have been financial: “. . . these progressive groups have a financial reason to push for impeachment. That’s how they raise money,” (Ref. 2)

     Something is wrong when the question of qualification for appointment to the Supreme Court of these United States becomes almost 100% political. Is it possible that 98% of Republicans (50 out of 51) voted to approve while a similar 98% of Democrats (48 out of 49) voted not to approve on purely nonpolitical and unbiased considerations? Clearly, politics has taken over the appointment process and has become more important than the question of qualification.

     Mob rule has now entered the Supreme Court nomination and confirmation process. We were faced with mobs of screaming idiots besieging and badgering the nominee and the Senators. A group of alleged rape and sexual harassment victims vociferously opposed Kavanaugh because some claimed to have been the victims of inappropriate sexual behavior (by perpetrators other than Kavanaugh). According to this lynch mob’s logic, “Joe raped me, so let’s punish Sam and every other man for what Joe did to me.” Instead of validating facts and determining the appropriateness of bringing charges nearly 40 years after the event in question, we were faced with “guilt by accusation”, even after the expiration of the statute of limitations. Even if the accusations were true, when is it time to end punishment of a guilty party? Even convicted criminals are not punished for their entire lives. They are allowed to return to society after a period of time. How does a purported juvenile misdeed disqualify someone for the rest of his life when there is no evidence of similar misbehavior thereafter?

     If a woman is sexually assaulted, as Dr. Christine Blasey Ford claimed, she will have my sympathy and my support on bringing the criminal to justice – but not 36 years after the crime and not on the basis of unsubstantiated charges! If women are sexually assaulted, as the women in the elevator with Senator Jeff Flake claimed, they will have my sympathy and my support in bringing the criminals to justice – but not in persecuting someone totally innocent of the crimes that these women were railing against! Some 325 years ago, in Salem, Massachusetts, a mob of frenzied women accused some 200 men and women of witchcraft and, as a result, 20 people were executed. These 20 victims were innocent of the charges, but the frenzy stirred up by their accusers and their unsubstantiated charges of witchcraft cost these innocent victims their lives. Now, 325 years later, we have witnessed a similar frenzy and a blind rush to convict.

     When “you turn on the TV or read an op-ed piece, there’s almost always a #MeToo feminist saying a victim is a victim if she says she is a victim, that evidence is no more necessary than a bulldozer to lift a toothpick and that we must presume the guilt of the guy no matter what the filthy liar says.” (Ref. 3)

     The caterwauling mob of women who convicted Judge Kavanaugh out of hand, based upon the uncorroborated accusations made against him, remind me of an episode in Mark Twain’s The Adventures of Tom Sawyer. In the book, we read that following the death and funeral of that infamous murderer, Injun Joe, “The funeral stopped the further growth of one thing – the petition to the Governor for Injun Joe’s pardon. The petition had been largely signed; many tearful and eloquent meetings had been held, and a committee of sappy women been appointed to go in deep mourning and wail around the governor, and implore him to be a merciful ass and trample his duty under foot. Injun Joe was believed to have killed five citizens of the village, but what of that? If he had been Satan himself there would have been plenty of weaklings ready to scribble their names to a pardon petition, and drip a tear on it from their permanently impaired and leaky waterworks.” A century and a half after the book was published, Mark Twain’s words are still descriptive of too many of today’s addled brained do-gooders. They refuse to let facts and common sense stand in their way!

     After the final Senate vote on confirmation, “Female protesters outside of the Supreme Court were seen crying and hugging each other in consolation as news of the final result filtered out.” (Ref. 4) My message to this mob of bleeding hearts is: “Get Over It!”

     Those among the clamoring lynch mob “long to be seen as conscientious citizens, wrapping themselves in a flag of righteous indignation, when, truth be told, they are nothing more than civic reprobates.
     “If there’s anything redeeming about the outrageous behavior and reprehensible antics we’ve just borne witness to, it’s the begrudging acknowledgment this is the price the rest of us must pay for speech that is truly free.
     “But that’s not the way these anarchists see it. Any speech that doesn’t conform to their notion of how things ought to be is so unworthy of consideration that it must be shouted down, and anyone having the temerity to hold differing opinions must be confronted in restaurants or accosted on elevators.
     “We saw all of that and more on Judge Brett Kavanaugh’s calamitous journey to confirmation as the newest member of the U.S. Supreme Court.
      - - -
     “Did the now 53-year-old Kavanaugh attempt to force himself on a schoolmate on a boozy night back when he was in his teens? He couldn’t prove he didn’t, and she couldn’t prove he did, not in a court of law.
     “The court of public opinion, however, is different.
     “Any parent of a daughter would be inclined to be empathetic toward Kavanaugh’s accuser. But wouldn’t the parent of any similarly accused son be just as empathetic to their boy?
      - - -
     “Kavanaugh deserved better and so did we.
     “There’s sure to be residual damage from what was done to him.
     “How many attractive candidates will refuse to put themselves and their families through what the Kavanaughs just endured?
     “Suppose someone ambushed you with an uncorroborated accusation of something they allege you did more than 30 years ago.
     “Who can you say for certain would believe you?” (Ref. 5)

     Put quite simply, the determination of who is appointed to the Supreme Court should be based upon one very simple and clear requirement: The appointee should be the best, the brightest, and, most importantly, among the most highly qualified.

     Was Brett Kavanaugh qualified to be a Supreme Court justice? Interestingly, Brett Kavanaugh’s judicial qualifications for the Supreme Court were uncontested. Over 6,000 pages of documents from his questionnaire and up to a million pages of documents from Judge Kavanaugh’s time in the White House were made available. Those and the seemingly endless hearings clearly showed that “Judge Brett Kavanaugh is one of the most qualified individuals ever to be nominated to the Supreme Court. He has demonstrated integrity, influence, and experience in his twelve years as a judge on the second most powerful court in the land. On top of this, he authored over 300 opinions while on the D.C. Circuit Court of Appeals. Kavanaugh is a graduate of the prestigious Yale Law School, served as an associate counsel to the White House, and as a law clerk to Justice Anthony Kennedy.
     “His experience and qualifications are very evident. . . .” (Ref. 6) Another expert - a liberal Democrat and feminist - described Kavanaugh as “unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought.” (Ref. 7) Another Democratic liberal, Harvard Law Professor Emeritus Alan Dershowitz said that he’d “likely disagree with many of Judge Brett Kavanaugh's opinions if he's confirmed as a Supreme Court justice, but ‘it's hard to question his qualifications for the job.’
     " ‘He went to Yale Law School and taught at Harvard. . . . What can be wrong with that?’
     “Dershowitz noted that Kavanaugh has a great deal of support from centrist academics, and is ‘regarded as a very scholarly, very smart person.’ “ (Ref. 8) Even the Democratic Senators at his hearing could not accuse Kavanaugh of being judicially unqualified!

     Judicial qualifications should be the guiding criterion. Issues of character - especially when such questions become political, irrelevant, biased, or are based upon unprovable allegations – should be almost totally ignored. Abraham Lincoln understood the principle of choosing the best qualitied people for positions of great importance. Deviation from the perceived requirement of a spotless reputation were viewed by Lincoln as being irrelevant.

     During the early stages of the Civil War, the North had failed to defeat the South, primarily as the result of poor leadership by the Union Generals. President Lincoln had finally found a competent general, Ulysses S. Grant. “After the failure of {Grant’s) first experimental explorations around Vicksburg, a committee of abolition war managers waited upon the President and demanded the General’s removal, on the false charge that he was a whiskey drinker, and little better than a common drunkard. ‘Ah!’ exclaimed Honest Old Abe, ‘you surprise me, gentlemen. But can you tell me where he gets his whiskey?’ ‘We cannot, Mr. President. But why do you desire to know?’ ‘Because, if I can only find out, I will send a barrel of this wonderful whiskey to every general in the army.’ “ (Ref. 9) Lincoln well understood that choosing the best and brightest superseded political considerations. His war-time cabinet appointees included many political opponents, but political considerations took a back seat to the needs of the nation. “Lincoln, after winning the presidency, made the unprecedented decision to incorporate the eminent rivals into his political family, the cabinet . . .” (Ref. 10) Lincoln ignored political considerations and sought out the best qualified people to advise him.

     It will be a very, very long time before the rage and rancor of the Brett Kavanaugh fight subsides. And the odds are high that this country will wallow even deeper in the mud the next time. The campaign to block Kavanaugh’s confirmation went beyond far anything we’ve seen before in a fight over a Supreme Court nominee, and the ugliness of the just-concluded bloodletting will very likely come back to haunt us if we don’t take steps to prevent such a reoccurrence. And, perhaps most worrisome of all was the casual repudiation of due process and the casual elevation of belief over facts as the yardstick by which accusations should be judged. The 12th-hour sexual-assault allegations against Kavanaugh continue to be uncorroborated, but their truth remains a matter of faith among many on the left. Though the charges were wholly inconsistent with the judge’s longstanding reputation for rectitude, Democratic political leaders have embraced these uncorroborated charges as Gospel. People are free to believe what they wish. But, heaven help us if fundamental elements of fairness, like the presumption of innocence, are simply ignored when an accusation is made by a seemingly sincere person that she was sexually assaulted or when an accusation is brought against someone who happens to belong to the opposition political party. As we have seen, #BelieveWomen and #BelieveSurvivors may be influential political slogans, but we have also quite clearly seen that when men (or women) are deemed guilty on belief alone — belief without independent evidence — the results can be utterly destructive.

     The losers in the current selection process are the American public. We stand to lose very qualified people to the politics of the day. This is not good for our nation. The Brett Kavanaugh confirmation process has shown that we may need to find a totally new method to select our Supreme Court members – a method devoid of politics, a method devoid of biased emotions, a method that ignores mob rule mentality.

     It would serve the American people best to have everyone agree to do away with the current contentious atmosphere that surrounds the Supreme Court selection process. Such an agreement seems highly unlikely. If another method of Supreme Court justice selection were to be selected, it would likely require an amendment of the U.S. Constitution, not a very simple process, and very unlikely to happen. However, in spite of there being little stomach for or likelihood of implementing a new and fairer way of appointing members of the U.S. Supreme Court, let me outline some possible actions.

Get Rid of the Politics: Let a qualified non-political body, such as the American Bar Association, select the candidate(s), based strictly on competence and judicial history. The names of the selected candidate(s) would then be voted upon, in an up or down election. by the Senate.

Get Rid of the Lynch Mob: Have the Senate confirmation process take place behind closed doors. This would eliminate, to some degree, the political grandstanding that takes place in public hearings. The proceedings must stop being a public spectacle instead of a serious selection process. The nominee’s record should be judged, his background investigated, and a decision made in confidence, without all the public hoopla and mob rule atmosphere that currently takes place. In a court of law, jury deliberations are secret. Maybe the Senate confirmation hearings should also be secret.

Limit the Process: Strictly limit what can be presented. Is it truly relevant, does it have current implications, and is it verifiable? Strictly enforce a time limit after which information will not be accepted.

Protect the Parties Involved: Keep the names and information provided secret if there is any possibility of harm arising from their revelation. Those parts of the confirmation process that involve sensitive information, including the identities of the parties, can be held in closed sessions, with the public excluded, and with appropriate penalties for violation of the rules.



  1. Democrats went too far over the line this time, Adriana Cohen, Boston Herald, Page 2, 8 October 2018.
  2. Analysis: Key Democrats backing off idea to impeach Justice Brett Kavanaugh, Kimberly Atkins, Boston Herald, Page 2, 8 October 2018.
  3. #MeToo empowers anti-men zealots , Jay Ambrose, Boston Herald, Page 15, 8 October 2018.
  4. Brett Kavanaugh sworn in as Supreme Court judge after winning Senate vote by 50 to 48, Ben Riley-Smith, www.yahoo.com/news, 6 October 2018.
  5. Is all common decency just slip-sliding away?, Joe Fitzgerald, Boston Herald, Page 20, 8 October 2018.
  6. Brett Kavanaugh has all the right qualifications for Supreme Court, Lester Munson, The Hill, 6 August 2018.
  7. Stop worrying about Kavanaugh, liberals. Start winning the political argument., Samuel Moyn,
    The Washington Post, 8 August 2018.
  8. Dershowitz: Hard to Question Kavanaugh's Qualifications, Sandy Fitzgerald, Newsmax, 10 July 2018.
  9. I Will Send a Barrel of This Wonderful Whiskey to Every General in the Army, quoteinvestigator.com ,
    Accessed 8 October 2018.
  10. Team of Rivals, Doris Kearns Goodwin, Simon & Schuster Paperbacks, page xvi, Published 2006.

  11 October 2018 {Article 338; Politics_40}    
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