Douglas Wilson
Blog&Mablog
SINCE THIS IS SUCH A TEACHABLE MOMENT . . .
Allow me to ruffle a completely different set of feathers for a moment. What is being done to Brett Kavanaugh has been in fact absolutely appalling. Let no one conclude that I am in anyway trying to minimize what an atrocity this thing was, and which it remains.
Due process matters. Justice matters. Presumption of innocence matters. Centuries of jurisprudential tradition must not be ditched because a badly educated generation of Americans got themselves into a moral panic, or to use a more accurate phrase for it, got themselves into something of an immoral doodah. Apparently, when the mob outside the courtside is yelling something like social justice for all! that makes all the subsequent proceedings okay.
But there is a deeper cultural reason why we have been treated to this spectacle of one of the most respected judges in the county being given the full treatment. This could not have happened unless our respect for due process had been eroding across the board for decades—but no national outcry over it because it is being done to the little guy. I am talking about the absence of real due process in things like asset forfeitures, Kelo-like eminent domain seizures, the administrative courts of the regulative state, big data surveillance, and a bunch of other legal atrocities.
I was contented enough with the Kavanaugh nomination because I believe he will be reliably far more conservative than Anthony Kennedy. And I believe that his presence on the bench will present a serious threat to Roe, which is the issue of our time.
That said, Kavanaugh wouldn’t have been my first pick for the Court.
When it comes to issues like data collection and warrantless searches of phones, he has been poor on Fourth Amendment issues.
“The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”He defends such things because they are needed in the fight against terrorism, or in the war on crime. Spooks and cops say they are necessary tools. The problem is that our surveillance state is not just looking at terrorists and criminals. They are looking at everybody. Not only so, but if Hillary had won the election, the thugs and miscreants on display this last week in this hearing would be running the country, and the intelligence agencies, and a bunch of other stuff. Anybody who would entrust anything of value to them because of a reflexive conservative impulse to “support the cops,” or to “support our intelligence agencies,” is someone who has not really thought that one through.
So if I may be permitted to cherish a hope, it is that Brett Kavanaugh will be confirmed to the Court, and he will reflect long and hard about the impact of all the court decisions that have robbed nameless thousands of their right to due process. What was done to him was done in public, in full view. It has been horrific, but he does have the resources to fight back, and it is quite possible that at the end of the day he will be confirmed to the highest Court in the land. If he is, I would urge him to take all the energy on behalf of due process that the right has poured into his cause, and use that energy to defend the legal restrictions our Founders wisely placed on government.
We should all want a tradition of legal interpretation that is strong and robust, so that if an election goes badly, and we have to turn the keys of government over to unscrupulous scoundrels, we still all understand the importance of due process. We understanding it when a conservative is nominated to the Supreme Court, it is true when some car mechanic has all his small business assets seized without due process, it is true when the government owns all my electronic communications without my permission, and it is true when someone is pulled over and hassled for driving while black.
I hope that Kavanaugh makes it onto the Court, and I hope that the harrowing experience of getting there will bestow on him a large measure of additional wisdom.
BORN FOR THIS
But of course, there remains a silver lining. Let us finish on a happy note. Let us conclude on an anapestic foot. When the ruling elites beclown themselves, this is always a good thing. When the people start to notice that they have done so, even better.
This has not been a parade of little clown cars. This has been a long chain of metro buses, every last one of them stuffed with clowns. Clowns driving, clowns leaning out the windows, clowns being periodically thrown under the buses, clowns working in dispatch telling the buses where to go, and clowns in the shop working on Avenatti’s next press release.
Things are really bad, and I stare at them stupefied. Things are so bad that a sort of eerie grandeur creeps into them. But then it is that I feel my gifts rising within me. And it comes to me. I was born for such a time as this. This is why I am here. This is what I am for.
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