The Real Conflict Undergirding the Kavanaugh Fight: Democracism versus Republicanism

In answer to the QUORA question, What do you think of the Kavanaugh allegation, now that his accuser's identity has become public?, I posted this answer:

This Kavanaugh fight is not fundamentally about sexual misconduct. It’s not a referendum on the #MeToo Movement. We all know that in the reverse situation, the Democrats would be circling the wagons around their nominee, and discarding Ford as a political hack and a liar. They’ve proven that in buckets-full. Think the 1990s Clinton era.

Modern Supreme Court confirmation fights are fundamentally all about political philosophy; specifically, about how the U.S. Constitution should be construed. Is our constitution democratic or republican (speaking philosophically, not politically)? Does the constitution grant elected legislators a blank check on power over the governed, based on “the will of the people?” Or does the constitution check the power of legislators in order to protect the individual rights of the governed from legislative encroachments. Does the constitution guarantee majority rule, or individual self-governance? Is the Supreme Court a rubber stamp on political power, stepping in only when proper “democratic procedures” have not been followed? Or does the Supreme Court police legislation, overturning laws that violate the rights of individuals to life, liberty, and earned property? Are “rights” government grants of privilege? Or do rights precede government, whose job is to “secure these rights” as laid out in the Declaration of Independence? Is the ballot box a majoritarian assault weapon? Or are our individual liberties and properties safe from majoritarian tyranny?

This philosophical conflict dates back to the Founding era, and forms the basis for the two major political parties. The Democratic Party was formed to defend slavery, largely on the grounds that the U.S. Constitution authorizes voters and their representatives to decide whether to allow slavery. The Republican Party was formed to abolish slavery on the grounds that individual rights to life, liberty, and property are inalienable, apply to all, and cannot be voted or legislated away.

Viewing the Kavanaugh allegations in this political context, the 21 members of the Senate Judiciary Committee are acting in accordance with their respective party’s philosophical foundations, which grew out of this constitutional divide. The political issues have obviously changed. But the basic philosophical divide remains, and its resolution has serious consequences for the future of a free America. The Democrats are backing Ford not because they care about her or her issues, but because they are hard core (though with exceptions) democratic constitutionalists and so want SCOTUS justices most likely to protect unlimited legislative powers. The Republicans are mostly giving Kavanaugh the benefit of the doubt, at least for now, because they are generally (though far from consistently) republican constitutionalists who want justices more likely to defend individual rights against legislative encroachments.

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Another answer posted by Nikki Primrose is very sympathetic to Christine Blasey Ford. Primrose drew on an issue that we're hearing a lot about during the Kavanaugh saga when she wrote: 

I believe in the presumption of innocence, but there are exceptions. When we are appointing someone to a lifetime seat on the Supreme Court, when we are selecting someone who will literally have the power to decide the future of our country, we have to err on the side of caution. We do not have to declare him guilty, but he is not entitled to this privilege. When his character and integrity is in question, we have to put the interest of our democracy first. Is it really too much to ask for SCOTUS appointees who haven’t been accused of sexual assault?

My emphasis. I commented:

“I believe in the presumption of innocence, but there are exceptions.”

I sympathize with much of this post. But personal opinion about the credibility of Ford vs. Kavanaugh should not be used as a pretext to undermine a core moral principle of justice. Once you start making exceptions to “innocent until proven guilty,” then no one is safe from being the next “exception.” It’s an opening wedge of prosecutorial and political tyranny.

SCOTUS confirmations are a political process, not a criminal trial. It is not and should not be a referendum on the “presumption of innocence” principle.

Related Reading:

Our Republican Constitution: Securing the Liberty and Sovereignty of We the People Hardcover by Randy E. Barnett