Brown Study

Brown study

22 September 2018

9:00 AM

22 September 2018

9:00 AM

The nomination by President Trump of Brett Kavanaugh as a Judge of the Supreme Court of the USA is very significant. That is because being a judge in the USA does not exactly begin and end with applying the law; the true role of a judge in that forward-thinking country is to change society in ways that are not embodied in the law but which judges think are good for the people, thus avoiding a vote on whether or not the people themselves want that change which, usually, they do not. It is really like the fundamental principle that underpins the European Union, that some things are too important for people to vote on and are best left to human rights courts, treaties, declarations and conventions to decide. Don’t get me wrong; the EU is on very strong ground in taking that approach because, when voting has been tried in the past, the people often vote the wrong way and have to do it again, and sometimes several times, until they vote the right way which is expensive and time-consuming and stands in the way of true progress. Anyway, it is because of this pivotal role played by judges in the US that their nomination has to be voted on by law-makers in the Senate, a process that involves heated debate and, eventually, a vote because, if laws are going to be made by judges, law-makers should have a vote on who is going to do the law-making to make sure that they will decide things the right way and in accordance with the true but hidden intention of the people. President Trump promised to end this and to appoint judges who are real judges, i.e. judges who will apply the law and not make it up, judges who will read the constitution and apply it and not decide cases simply because it makes them feel nice or because society is ready for whatever progressive change the judges think fit to impose on the people.

He has succeeded in getting one of his appointees through the Senate and Kavanaugh, already an appeals court judge, will be the second, which will give rise to a majority of judges on the Supreme Court who will apply the law instead of inventing it. Accordingly, the Democrats and other like-minded and progressive forces are working overtime to stop the appointment of Judge Kavanaugh. They searched high and low, but all they could find was that he is a very good lawyer and that if something is not done soon, he will be a very good Supreme Court judge applying and not rewriting the law and the constitution which would be a regrettable thing for him to be doing. However, at this late hour, a public-spirited witness, Christine Blasey Ford, has stepped forward to reveal that she was sexually assaulted by Judge Kavanaugh, which will spell ‘goodnight’, as the Americans say, to his candidature. Ms Ford, as the Americans also say, ticks all the boxes for such a scandal, as she is a professor, which is desirable, of psychology, which is highly desirable, in California, which is compulsory, and a Democrat, which is a non-negotiable minimum. The victim poured out her ample heart to the FBI and Senator Dianne Feinstein, the Democrat leader, both of whom guaranteed her absolute and complete anonymity and confidentiality for her startling revelations which, with undertakings from such unimpeachable confidants, were naturally leaked to the the New Yorker in half an hour. The result is that further salacious details have now dribbled out to the effect that when Kavanaugh committed this monstrous violation of Professor Ford’s person, he was actually in high school, meaning that it did not happen when he was an adult, nor when he was in university or even in college, but decades ago, when he was a downey-cheeked youth in high school. The Democrats think they have struck gold and that this is the end of Kavanaugh, the beginning of the end of Trump and at least the end of the beginning of this pernicious trend to force judges to apply the law when they clearly do a much better job of making it up.


My reaction, however, has been somewhat different. First, it shows you how slack the Democrats and progressive forces have become. Muckrakers are not what they used to be. Just fancy finishing your inquiries on a mission as grave and with such national consequences as this at high school. Surely, they could dig up more dirt by going back to Kavanaugh’s days in primary school. He must have committed some pretty depraved acts in those far off days, as I did. Moreover, if they probed into his kindergarten days, who knows what unspeakable horrors would be revealed about his behaviour in the sandpit and that curious relationship he had with a teddy bear.

Secondly, the Democrats and the progressives have the whole thing back to front. The first inquiry should be into what actually happened and how this allegation came to be made. It seems highly suspicious that it should emerge so late from the mists of the past and, being dredged up by the Democrats, be so obviously partisan. Assault is one thing, of course, and to be condemned, but if it turns out to be simply a high school romp with young Christine, surely this would not disbar Judge Kavanaugh. Moreover, the trouble with judges here and in the US is that they hold themselves out as being above reproach, like Caesar’s wife, whereas they are not, and society is better off if they are normal people with as many of the experiences of real life as possible. Above all, judges should get back to being judges and stop being social reformers. They might start by concentrating on the absurdly low punishments imposed for serious and anti-social crime, particularly in Victoria. Now there is a real project on which judges could usefully concentrate.

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