The Age of Faith

At the Wall Street Journal Daniel Henninger remarks:

Judge Brett Kavanaugh’s nomination to replace Anthony Kennedy on the U.S. Supreme Court is a watershed event that will define America’s politics for years. If the Kavanaugh nomination fails because of the accusations made against him by Christine Blasey Ford and others, America’s system of politics, indeed its everyday social relations, will be conducted in the future on the Kavanaugh Standard. It will deepen the country’s divisions for a generation.

The Kavanaugh Standard will hold that any decision requiring a deliberative consideration of contested positions can and should be decided on just one thing: belief. Belief is sufficient. Nothing else matters.

That’s the reason I alluded to The X-Files in an earlier post, a reference to the poster above Fox Mulder’s desk in the show, emblazoned with the caption “I Want to Believe”. Mr. Henninger has come around to my view of the matter.

The editors of the New York Times declaim:

It’s a horrific unfairness, for example, that for generations, untold numbers of American girls and women have had their lives “derailed” by sexual abuse, to use the term of one of Judge Kavanaugh’s accusers, Christine Blasey Ford, while the boys and men who abused them — maturing, telling themselves they’ve set aside boyish ways, eliding, avoiding, forgetting — chugged along toward successful careers and public acclaim.

It would also be unfair if Judge Kavanaugh is innocent of such abuse, if he is a thoroughly honest and decent man, and yet is ultimately denied a seat on the Supreme Court because of the allegations against him.

The Senate Judiciary Committee is not a court of law, and the public can’t expect its members to reach an irrefutable conclusion about what happened. Yet it is now up to these senators, who have so far been putting political calculation well ahead of the interests of justice, to give a nation in tumult over these charges the demonstration of higher purpose and moral seriousness it so desperately needs. If Judge Kavanaugh’s name is, in the end, to be cleared, the only path is through a thorough and fair investigation of the allegations against him.

That last paragraph exemplifies why I have believed that the testimony of both appointee Brett Kavanaugh and his accuser, Dr. Christine Ford, deserve to be heard by the Senate Judiciary Committee. Anything less would be broadly interpreted as an attempt at silencing Dr. Ford. The testimony is a political necessity.

However, it’s hard for me to rationalize the FBI’s opening a new investigation. The FBI has conducted six investigations of Mr. Kavanaugh to date. Nothing resembling the allegations against Mr. Kavanaugh have appeared in any of them. Private acts could perhaps have remained a secret for 36 years but is it credible that the public acts now being alleged would not have been uncovered by a competent FBI? The coherent positions are either that the FBI is competent to conduct such investigations, in which case the investigation has already taken place, or it is not, in which case an investigation would be irrelevant.

In the past I have referred to “doing the right thing”. At the Wall Street Journal Holman Jenkins says that doing the right thing would mean Sen. Dianne Feinstein “cleaning up her mess”:

You don’t need the FBI. Private investigators are available. Opposition researchers can be hired—just not the Fusion GPS kind, who specialize in producing anonymous, unsubstantiated slurs rather than checking them out.

The Senate Judiciary Committee and the Democratic Party have ample resources. In fact, Democrats can still do something to repair the damage, in partnership with Senate Republicans. If Mrs. Feinstein weren’t so narrowed by her life in politics that she can’t see a bigger picture, she would already have owned up to her failure in this regard and tried to clean up the mess.

After all, she is the ranking Democrat on the Judiciary Committee. She could refuse to participate in Thursday’s hearing. She could demand that it be called off. She could point out the obvious: A hearing in the absence of any attempt by the Senate to seek verifiable facts against which to measure the vague memories of accusant Christine Blasey Ford can only be a “he said, she said” travesty, a modern-day gladiatorial contest in which tribal loyalty and the loudest shouting will substitute for truth and justice.

Whatever the truth of Mr. Kavanaugh’s teenage behavior, this is not a creditworthy exercise in advise and consent. Judge Kavanaugh evidently feels obliged to go along rather than have a refusal be interpreted as guilt. He will be subjected to cross-examination by Senate Democrats in which he will be forced to admit that he drank beer in high school and went to parties. This will be more than enough for Sen. Mazie Hirono, who has already determined that Judge Kavanaugh is a liar because he’s a man, and a rapist because as a judge he might uphold democratically enacted restrictions on abortion.

Republicans are stuck playing for the mildest possible political disaster, which means pushing through Judge Kavanaugh’s confirmation even while the allegations remain unresolved. But Republicans won’t, for fear of increasing their jeopardy with women, subject Ms. Ford to the cross-examination that would be requisite in any truly fact-finding forum. They likely won’t even challenge her behavior since the allegations surfaced, which has clearly seemed more aimed at conveniencing Democratic strategy in the midterms than at putting her testimony before the senators so they can assess it.

Mrs. Feinstein so far has behaved as we expect politicians to behave on most occasions: as if there is no consideration higher than what she must do to assure her re-election. But she’s 85 years old. She doesn’t need another term in the Senate. She doesn’t need one more ritual of incumbency validation.

Since the glaring absence here is any context of facts in which her fellow senators can weigh the accusation that Sen. Feinstein allowed to be sprung on Judge Kavanaugh at the last minute, she should be the one to request that the nomination be briefly put on hold. She should propose that Democrats and Republicans jointly sponsor an investigator to take a week or two to question anybody and everybody who might have been present at the alleged party or know anything about the history of Judge Kavanaugh and Ms. Ford.

Mrs. Feinstein could even agree, as a gesture of expiation and good faith, to support Judge Kavanaugh’s confirmation if the investigation yields no information to support Ms. Ford’s claim.

I cannot conceive of any such course of events. Can you? This is yet another case in which the situations of the two political parties are not symmetrical. The confirmation of Brett Kavanaugh does not hold the same sort of meaning for Republicans that it does for Democrats, hence the way that Democrats are responding. From their perspective it is a situation of life and death.

Opponents of Kavanaugh’s appointment to the Supreme Court should be careful of what they wish for. Neither of the two standards, beyond reasonable doubt nor the preponderance of the evidence, supports their preferred outcome. Only the precautionary principle does and it’s hard for me to envision any nominee who could pass that standard.

In 1950 popular historians Will and Ariel Durant published The Age of Faith, another volume in their series on the history of civilization. That was their characterization of the European Middle Ages. Have we entered another age of faith? In Europe that spawned religious wars that killed millions.