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La Affaire Kavanaugh

La Affaire Kavanaugh

Nearly a week has passed since I reached Houston in Texas in the USA, also known as the lone star state because its flag has only one star against 50 in the US flag. I stay with my friend CG Daniel at Pearland, a beautiful suburb of Houston. Downtown Houston has nearly five dozen hospitals, known for their excellence. 

India has 800 or more television channels in various languages from Malayalam to Marathi and English to Hindi. I do not know how many the US has but in my friend’s home, television means CNN, not Fox News or Al Jazeera or BBC. Since I eat and drink only what the host offers, I do not ask him to change the channel, lest it should offend him. So I end up watching only CNN.

Whenever I look at the television screen, I see only discussion after discussion about the nomination of Brett Kavanaugh to the Supreme Court of the USA. 

One thing I must mention is that the discussants are as deeply divided on the subject as the ordinary Americans are. Yet, they do not shout at each other and the anchor person never butts in to force his opinion down the throats of the invited guests as is routinely done in channels as varied as Asianet and Republic TV.

In the US, arguments are met by arguments, unlike in India where high decibel levels are matched by higher decibel levels. What I found astounding is that the CNN did not have any other subject to discuss than  la affaire Kavanaugh, as if nothing else happened in the world. I even wondered whether this was how a Super Power should conduct itself. How could one listen to endless discussion on a subject I found silly?

Kavanaugh is President Trump’s nominee for a vacant seat on the Supreme Court. The Republican party has a razor-thin margin in the Senate to get him confirmed. That is when the unthinkable happened. A psychologist Christine Blasey Ford alleged that the nominee had tried to rape her when both of them were teenagers. Initially, she did not want to come out in the open to make the allegation but she was forced to do so by circumstances.

When the alleged incident happened, both were teenagers. She was younger to him by two years. The description of the incident she gave suggested that it was indeed a rape attempt. She narrowly escaped being raped. Two more women came forward to claim that Kavanaugh had tried to sexually assault them, though not successfully. His integrity and eligibility to hold a post which is second only to the Presidency were questioned.

Through his tweets and statements, President Donald Trump came out strongly in support of his nominee. It is not that there were no other candidates for the post. In fact, he was shortlisted from among 85 or so candidates. The heavens would not have fallen if his name was dropped and another person was chosen for the job. I may be accused of lacking adequate knowledge of the American system when I argue on these lines.

The moot question is why should a Republican President have a judge who is perceived as Conservative. The only qualification a judge should have is the ability to give judgements without fear or favour. Alas, politics has always played a major role in the selection of Supreme Court judges.

It is not just the future of Kavanaugh which is at stake but also the prestige of Trump. The President is slated to lose his majority when elections are held to the US Congress in a few weeks from now. In other words, it is his last chance to have his own nominee on the Supreme Court where the judges do not retire except at their own sweet will. That is why he gave a clean chit to his nominee.

Trump’s own record in matters of sex is not something which will make the Americans proud. Come to think of it, he is the one who claimed that he would have dated his daughter Ivanka but for the fact that she was his daughter. One might wonder what kind of a man was he who could speak like that. The plain answer to that question is that he is the President of the USA. 

Kavanaugh has flatly denied the allegation. It is not necessary that a person should remember everything that happened when he was in his teens. But a first sexual encounter, successful or unsuccessful, would last for ever in one’s memory. So the argument that he did not remember any such incident would not wash. 

Lying under oath is considered perjury whether it is about sex or a salacious topic. The Republicans used to mention this point when they accused Bill Clinton of committing perjury while cleverly denying his relationship with Monica Lewinsky. That is why Nicholas Kristof whose columns in the New York Times I used to read argues in a piece in the Houston Chronicle, “So it seems to me that whether or not you (Kavanaugh) broke the law 36 years ago, you broke it last week”.

Of course, the question whether anyone should have taken cognisance of the charge made 36 years after the incident is valid. Studies have shown that a woman or, for that matter, a man would not easily come to terms with her/his victimhood. The incident would haunt her for decades.

And when she realised that the man who tormented her was going up and up in his career and was about to occupy the highest judicial post in the country, it is only natural that she would turn a rebel. And that is what happened in this case. 

It is not the first time that a person nominated to the Supreme Court is facing such a charge. Many many years ago, Anita Hill, an Afro-American woman, alleged that while she worked for the person concerned, he tried to physically violate her. The pity is that despite her testifying boldly during the Senate hearing, the House voted him to the post. He is today a “honourable” judge of the Supreme Court of the USA. 

It is almost certain that Kavanaugh would get cleared by the Senate. The FBI is believed to have given him a clean chit, though the report is not available in the public domain. What is clear is that the Republican Senators have been emboldened by the report to rally behind Trump’s nominee. However, the most interesting comment I heard is that the report is significant not so much for what it says as for what it does not say. 

Equally important, the FBI did not question witnesses who would have corroborated the charge against the judge. Instead, it questioned those who had taken a position favourable to Kavanaugh. This has cast aspersions on the conduct of the Federal investigating agency.

The FBI was given just one week to do a background check on Kavanaugh. It could not have ascertained the veracity of the complaints made by three women during that short period. Many in America believe that the FBI inquiry was a ploy to push his candidature. It has made the task of the Republican Senators easier for they can now claim that there was nothing substantial in the charges made against him. In other words, the report did not corroborate the serious charges made against him.

I have seen clips of the hearings in which both he and the accuser participated. While she was cool, dignified and factual, he was emotional, aggressive and surcharged. At one point, he even taunts a lady Senator little realising that the whole world was watching him. He could have been like Ford, cool, confident and dignified.

In behaving in the manner in which he behaved, Kavanaugh lost one vote that would never be counted, that of this writer. For a moment I thought that he was not a Supreme Court judge material. His op-ed article in the Wall Street Journal on October 5 was an attempt to whitewash his behaviour. He claims to have behaved like a “son, husband and dad” of two teenaged daughters. 

Nowhere in the world is a judge allowed to rewrite his or her judgement once it is delivered. Certainty is an important characteristic of a judgement. Of course, a judgement can be poorly written. It may lack cogent arguments. It is for the defendants to challenge the verdict in a higher court or by a larger bench of the same court.

When Kavanaugh testified before the Senate, he should have realised that he should make only those statements which would do him proud. He should have realised that writing an op-ed page article to recant was not an option, like failure is not an option for NASA. In doing so, he exposed himself to the charge that he was not fit for the job. While he spoke eloquently about the harm that has been caused to his dignity, he forgot for once how the unwanted publicity has affected the lady, her family and friends. 

The American Bar Association’s Model Code of Judicial Ethics, as quoted by Kristof in his column, states, “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary”. Alas, he did not live up to this expectation.

It is not for no reason that a retired Supreme Court judge came out strongly against Kavanaugh. He went by the dictum that Caesar’s wife should be above suspicion. The argument that his record as a judge and his conduct during the five years he spent in White House as an aide of President George Bush does not wash away the agony Ford has been suffering from.

In all this, one good thing has happened. I was in Houston when Anita Hill addressed a group of women executives. The hall was overflowing with women of all ages and from all groups. The me-too-moment had arrived in the US. As I boarded an Atlanta-bound Delta flight from Houston Hobby airport, I saw posters everywhere that sexual harassment was a serious crime. It encouraged women to report such harassment immediately to the authorities concerned.

It is a positive sign that women will not have to wait for 36 years to complain about incidents of attempted rape. It is the shame associated with rape that prevents women from making complaints. The me-too-campaign will encourage more and more women to make bold to report.

I have learnt one thing during this visit. The born-again, evangelical Christians consider Trump as their leader. When confronted, they say that they did not elect a saint but a ruler. Small wonder that I heard a Pentecostal pastor pray, almost in support of Kavanaugh, though it was couched in words to the effect that it was a prayer for Justice.

The saddest part of all this is that even justice is seen as partisan. It seems it is more important to have a conservative majority among the judges of the Supreme Court. How the Republican Senators would face the fury of the me-too women in the next elections is what remains to be seen. Till then they can have the last laugh on  la affaire Kavanaugh!


(Published on 08th October 2018, Volume XXX, Issue 41)