Whether Brett Kavanaugh, Donald Trump’s candidate for America’s Supreme Court, drunkenly tried to rape a classmate 36 years ago at a party on the outskirts of Washington, D.C., will probably never be found out. The suspected crime is past the statute of limitations, the alleged events occurred so long ago and the memory of the alleged victim has too many holes. It would hardly be possible, therefore, to pronounce a verdict that would be beyond reproach.
But that's not the point, even if in the past week some senators acted like executioners at the hearing of the participants. The central question is whether Kavanaugh is suitable for the Supreme Court, or whether the recent allegations and Kavanaugh's reactions give rise to serious and lasting doubts as to his ability to serve on the Supreme Court. The Democrats believe the alleged victim. However, many Republicans consider the allegations against their candidate a devious political game to block the conservative jurist.
It’s About More Than Violence, Sex and Cabal
Now, within just a week, the FBI is supposed to give an answer as to who is more credible: the presumed victim, psychology professor Christine Blasey Ford, who swore under oath to the U.S. Senate Judiciary Committee that she was 100 percent sure it was Kavanaugh who tried to rape her; or the alleged perpetrator, Kavanaugh, who also swore under oath never to have done anything to a woman in his life. It is much more than an American smear story in front of the world, much more than violence, sex and cabal. This affair must also interest us, for political and very principled reasons.
The Supreme Court of the United States is not an ordinary national court. Its decisions are far-reaching, and the decisions, their reasoning, and even the opinions of the justices in the minority, which deviate from the majority’s decision, have always had a tremendous appeal far beyond the borders of the United States.
If America's top nine jurists adjudicate the right to abortion or same-sex marriage, the death penalty or issues of racial equality, that's news beyond the United States too. All over the world, constitutional courts are looking with curiosity at America's Supreme Court, this marble temple of law that has taken its place confidently and majestically in Washington, just opposite the U.S. Capitol.
The Independence of the Third Power Is at Stake
But it is also important to argue about Kavanaugh because there has been a bitter struggle in the United States for some time now for the control and politicization of the Supreme Court. At stake is the independence of the third power,* the future of the rule of law and liberal democracy par excellence.
This fight is not just fought on the other side of the Atlantic. It has long since reached Europe, in countries such as Poland or Hungary. Germany, too, is not immune from the political appropriation of the courts. For decades, the union parties SPD and FDP** have negotiated the occupation of the upper courts in this country. But with the growing division of society and the fragmentation of the party landscape, at the time of the appointment of federal judges even extreme parties like the AfD** want to have a say and possibly can.
Kavanaugh Is the Wrong Man
The American war over vacant seats is a warning sign. The more fractious the society, the more ideological and irreconcilable the parties, and the more ruthlessly tactics are manipulated against each other to the death.
Not so long ago, it was good democratic practice that judicial candidates proposed by a U.S. president not only enjoyed the support of his own party, but also found support within the ranks of the opposition. But that's history. At a time when ideologues and bigots in the White House rule, there is no room for moderation and compromise.
The Republicans have declared the Supreme Court a battleground. They want to move it to the right. With their majority in the Senate, they barred Barack Obama's candidate from being considered for a vacant seat on the Supreme Court for a year and kept it vacant until Trump was in power.
In the election campaign, Trump had already promised his Republican voters he would nominate only conservative judges if he was victorious, and to force them through with all his might. And the Democrats have vowed to prevent this to the best of their ability. The gruesome argument over the appointment of Kavanaugh is an example of this.
Is the Man Suitable for the Supreme Court?
This goes to the heart of what should be at the core of a nomination and the subsequent hearing on a judge's candidacy. Is he or she professional and personally suitable for the Supreme Court? Can he or she be trusted to exercise the office impartially, without prejudice, to the best of his or her knowledge and belief, in accordance with the law and with the truth alone? Does he or she have, as the Americans say, a balanced judicial temperament?
Based on these standards, Kavanaugh is already a dubious candidate for a variety of reasons. Ford, the possible victim of abuse, made her allegation in a confidential letter to a member of Congress at a time when Kavanaugh was just one of several potential Supreme Court candidates and not yet nominated by Trump.
To underscore the credibility of her allegation of attempted rape, Ford voluntarily and successfully subjected herself to a polygraph test, but Kavanaugh did not. Ford, as well as the Democrats in the Senate, asked from the beginning that the FBI be allowed to investigate the allegation of abuse. The Republicans and Kavanaugh resisted that as long as they could.
Ford and the Democrats asked the Senate to summon a witness who, according to the psychology professor, was allegedly involved in the alleged rape attempt. The Republican majority in the Senate refused, and Kavanaugh was not interested either. The witness merely stated that he could not remember such an incident. Incidentally, he is currently unavailable because of depression and treatment for alcoholism.
But most of all, at his hearing Kavanaugh went on the attack and lost all composure. Furious, red in the face and in the spirit of Trump, he accused the Democrats of malice and conspiracy. According to Kavanaugh, the Democrats wanted to take revenge for the Clintons and for the lost 2016 presidential election.
At that moment, finally, it became clear that Kavanaugh is unsuitable for the Supreme Court. Those who get so upset during a job interview for the third branch of government and uncontrollably attack the Democrats in the Senate sow doubts about an impartial and unbiased exercise of [the powers of] the highest judicial office.
*Editor’s note: There are three branches of government in the U.S.: executive, legislative and judicial.
**Editor's note: SDP and FDP refer to the left-leaning Social Democratic Party of Germany and the Free Democratic Party respectively. AfD refers to the far-right Alternative for Germany political party.