It is precisely because the US Supreme Court has a huge impact on preserving the way America functions, that the Congress has an obligation to examine what Christine Blasey Ford, a California professor, has come forward to allege about the conduct of Brett Kavanaugh, whom President Donald Trump has nominated to fill the vacancy caused by the retirement of Justice Anthony Kennedy. The court is in a precarious balance, with four liberal and four conservative judges. Kennedy’s votes had proved so pivotal in a few cases, that some analysts of the US Supreme Court called it the Kennedy Court, and not the Roberts Court, after chief justice John Roberts, as is the norm in American politics.
At such a time, a judge who is wedded to the ‘original intent’ of the constitution, may end up taking narrowly-defined positions that might roll back civil rights gains; a more activist judge could transform the court’s role by influencing the way America is governed. American politics is at critical crossroads, with a federal investigation tying knots around Trump. How he exercises his executive powers in matters where he is the target of investigations, is going to be a critical question in the coming months.
At such a time, it is of paramount importance that the court is wedded to the notions of justice and constitutionalism. That means, as one of the three pillars of American democracy which pronounces on cases based on evidence, precedents, and the law, it should not tie itself into knots over attempting to decipher the thinking of the few white men as though it were a Delphic oracle, particularly because there is no way to know how they would have understood situations and contexts they could not have anticipated or comprehended. Rather, it should understand the spirit of the system, learn from its frailties—think of the notorious Dred Scott case of 1857, when the court refused to let a former slave sue for his freedom—and instead advance freedoms, as Roe v Wade (1973) did with abortion rights, or Obergefell v Hodges (2015) which legalized gay marriage, to ensure liberty and justice for all.
An appointment to the Supreme Court is a privilege; the nine men and women who don the robes must be above suspicion. US judges are appointed for life; there are no term limits, which means a president, even if unpopular and with a questionable mandate, can make appointments whose consequences are felt for at least a generation.
The process has failed in the past. The 1991 appointment of Clarence Thomas was controversial, not only because a conservative judge was replacing a liberal one (Thurgood Marshall), but more importantly, because the allegations of sexual misconduct made against him by Anita Hill were dismissed so casually.
There are indeed parallels between what happened in 1991 and today. If the assault that Ford has alleged took place, it occurred 36 years ago. The few details that have emerged are sketchy, and Kavanaugh has denied the incident took place, which is a bold position to take, if it turns out that an act that may have been criminal (he was 17 then, she was 15) had indeed taken place. True, the understanding of consent in the early 1980s was different from what it is at present, but that does not exonerate the young man; I was a student in the US in the early 1980s, and most campuses, schools, colleges, and workplaces, knew that a no meant no. There may have been greater acceptance of boorish and laddish behaviour, but that did not make it right; it only meant that the hurdles a woman has to cross to be heard seemed insurmountable then, and remain formidably high even now.
Given that, and given the #MeToo movement, questioning Ford’s timing and motives is wrong. If she underwent the experience she did, it would have been traumatic. She may have wanted to bury the past and ‘move on’ or ‘get over it’ and repair and rebuild her life. It could not have been easy. All of us have some suppressed experiences in our lives, which we leave in the dark rooms of our mind, and we remain unwilling to stir those memories because we are unprepared and unwilling to deal with the consequences that might follow.
But when Ford found that the man she says had assaulted her is close to an office that is so crucial for the society in which she lives, a man whose attitude and demeanour since the allegation shows, to her, no sign or repentance or atonement, and who can cast the crucial fifth vote that can radically transform the Court for a generation or more, she has decided to speak up. For that, she deserves support.
The US has a president whose personal conduct raises profound questions because it diverges so much from the values that most Americans say they believe in. That’s why investigating what may have happened at an alcohol-soaked party at the Georgetown Preparatory School in 1982 matters.
At a speech in 2015, Kavanaugh said: “What happens at Georgetown Prep, stays at Georgetown Prep." That was wrong then, and wrong now.
Salil Tripathi is a writer based in London.
Comments are welcome at firstname.lastname@example.org. Read Salil’s previous Mint columns at www.livemint.com/saliltripathi