Kavanaugh politicking shows what happens when judges are expected to become political players

WASHINGTON CORRESPONDENT:  Politics is about uniting people, according to an oft-used platitude.  But it’s also about dividing people, as shown by the latest developments in the battle to install Brett Kavanaugh, a federal judge, on the US Supreme Court.

Shortly before the end of public hearings before the relevant US Senate committee, an allegation has been made that Kavanaugh committed a sexual assault when he was at school 36 years ago.

Senate Democrats, who oppose his nomination, say a vote on his confirmation should be delayed while this is investigated.

Republicans, who support Kavanaugh, say Democrats knew about the allegation a while ago and are only now asking for an investigation to delay a vote until after elections in November. They plan to have both nominee and his accuser, Christine Ford, examined by the committee on Thursday.

However this situation develops (and there seems to be another, separate, allegation developing), it must be excruciating for both of them.

It’s worth scrutinising the political calculations of both Democrats and Republicans, not least because both sides seem to be operating on the assumption that – at this passage of time – it will not be possible to prove the assault allegation to the criminal standard (beyond reasonable doubt) or to the civil standard (the balance of probabilities).

The Democrats appear to be calculating that an allegation of this nature will work to their advantage, even if unproven and with suggestions they have manipulated the process for political ends, because the median voter will expect a candidate to be beyond reproach.

This is not altogether dissimilar to calculations made in a different age about suggestions of homosexuality, alcohol and drug use, communist sympathies and religious non-conformism.

Senate Republicans must now assess the same variables.  How would median voters react if they were to confirm Judge Kavanaugh with the allegations neither proved nor refuted?  Should they try again with a new candidate after the election in what might be less-favourable circumstances?

If the Democratic senators were hoping to ignite a strong gender response with their strategy, they may be disappointed. Instant polling suggests that while overall support for Kavanaugh’s nomination has dropped, belief in the accusation varies enormously by party identification (most Democrats believe the accusations, most Republicans don’t) but only modestly (9 percentage points) by the respondent’s sex.  They will be anxious not to repeat the gender miscalculations that helped derail Hilary Clinton’s presidential bid in 2016.

Perhaps the most important lesson from this incident is the pivotal importance of median voters in democratic politics. If an issue can sway them, its resonance to the committed masses on either side of the centre can become irrelevant.

The second lesson is that if you keeping asking judges to resolve political questions, don’t be surprised if you wind up with a politicised judicial process.

 

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