Jay Kuten: It's over? Judge for yourself

Senator Susan Collins is under pressure after voting to support Judge Brett Kavanaugh's nomination to the Supreme Court. Photo / AP

President Trump and his captive party claim a victory in pushing Brett Kavanaugh on the Supreme Court, but that victory may be pyrrhic.

The only credit that accrued in the nomination hearings belongs to Dr Christine Blasey Ford.

Dr Ford, who had nothing to gain personally, acquitted herself with nobility and grace as she described the alleged horrific attack by a 17-year-old, drunken Kavanaugh.

In her manner, she was less accusatory than trying, as she said repeatedly, "to be helpful".

Her responses to questioning by the female prosecutor, substitute for male Republican committee members, seemed candid, and unforced.

Republicans in the Trump mode claim that their casting aside Dr Ford's allegations is in defence of the principle of presumption of innocence.

This was the rationale of Senator Susan Collins, a supposed moderate Republican, to lend a cloak of legitimacy to her "yes" vote.

She claimed to sympathise with Dr Ford, mouthed the usual pieties about assault victims being listened to and promptly dismissed the allegations as uncorroborated.

Presumption of innocence, as defined by the US Supreme Court in Bell v Wolfish (1979) and enunciated by conservative Chief Justice Rehnquist, is only to be applied inside the courtroom.

These nomination hearings are not criminal trials. They are employment interviews for the highest judicial posts.

Judge Kavanaugh may have high intellectual judicial qualifications, but what was under inspection is character and the gravitas we describe as judicial temperament.

As to Dr Ford's allegation that Kavanaugh assaulted her, the burden of proof is by the most generous standards a shared one.

Her task is difficult in that sexual assault is usually done in private. Here there was a named witness, never brought to the committee for cross-examination under oath.

Kavanaugh had the obligation to do more than deny the allegation as in any job interview — he needed to attempt to refute them.

Instead, he avoided grappling with the allegations or recalling Dr Ford by name. Casting himself as victim, a raw and angry Judge Kavanaugh was disrespectful of the senators questioning him.

He called the accusations "a calculated and orchestrated political hit" fuelled by "revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups".

This exhibition of lack of judicial temperament caught the attention of 2400 law professors and a retired Supreme Court Justice who warned against the nominee's suitability for the court.

To make amends Kavanaugh wrote an op-ed in the Wall Street Journal to declare his readiness to be non-partial going forward and explained his behaviour as regrettable — "there were things I should not have said" — but understandable due to the emotions of the moment. As in his prepared speech, mention of Dr Ford was missing.

In the end, the dreary business was concluded along party lines.

Jay Kuten

That the majority was determined to push through this nomination — despite the compelling testimony of Dr Ford and a less than thorough FBI investigation, despite an over-the-top performance of outrage by Kavanaugh that prompted observers to question his suitability on grounds of temperament — makes the entire process a mockery. That the whole business was Kabuki theatre is evident by the ability of late night comedian Stephen Colbert to predict the exact vote count.

But not everything is inevitable. Senator Mitch McConnell, who orchestrated the entire show, said of the protests at Kavanaugh's swearing-in: "These things always blow over."
He may have been whistling in the dark.

The mid-term elections are on November 6, and one Democratic Representative, Jerry Nadler, has promised to continue to investigate Kavanaugh on the issues of sexual assault and perjury leading to possible impeachment if the Democrats win the House.

One may gauge the outrage among the electorate from the 30,000 voters who, in response to Collins' speech, contributed US$2.3 million in 24 hours for any opponent.
As the great baseball sage, Yogi Berra, said, "It ain't over till it's over."

Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing. He spent 40 years comforting the afflicted and intends to spend the rest afflicting the comfortable