Those who have been wondering just how far opponents of the Constitution, as it is written, will go to keep originalist judges away from the U.S. Supreme Court need look no further than the recent character assassination of Judge Brett M. Kavanaugh of Maryland. On the day that Kavanaugh was nominated by President Donald Trump, Sen. Charles Schumer, D-N.Y., vowed to “oppose Judge Kavanaugh’s nomination with everything I have.”
Eventually, over two harrowing weeks in September, Schumer delivered on his promise. Advocates of an originalist reading of the Second Amendment—and the rest of the document within which it sits—should take note: This is what is in store for the judges on which your liberties rely.
“Character assassination,” while an accurate description, is in truth too narrow a term to describe what was done to Kavanaugh in the dying days of September. In addition to targeting a man, the figures who attempted to derail Kavanaugh’s nomination also took square aim at the most elementary of American ideals—among them due process, presumption of innocence and a respect for corroborating evidence. In the short term, the question before the U.S. Senate was, “Should Brett Kavanaugh sit on the U.S. Supreme Court?” In the long term, however, the question was considerably weightier: “Will America maintain the habits that have made it great, or will it instead descend into McCarthyism, Stalinism and moral panic?”
That the most outspoken opponents of originalism have proven themselves hostile to the principles outlined in the Bill of Rights should, perhaps, come as no surprise. Nevertheless, it should alarm all fair-minded people. Think back to the extraordinary manner in which Kavanaugh’s insistence that he was innocent was taken as a sign of guilt. He wants a lawyer? Guilty. He says he has no idea what he’s being accused of? Guilty. He has a letter from friends who have attested to his character? Guilty. He denies the accusations calmly? Guilty. He denies the accusations angrily? Guilty.
Think, too, about how seamlessly the goalposts were shifted throughout. Kavanaugh is a gang rapist! ok, he’s not, but he’s a rapist. ok, well not a rapist, but did you see how annoyed he was at being cast as a deviant? And anyway, he said he didn’t drink! ok, well he didn’t quite say that, so he’s probably an alcoholic. ok, well maybe not an alcoholic, but he had some beers as a teenager. Look, the point is, he’s disqualified, ok?
The scattershot approach disgraced its progenitors and proliferators alike. Hour by hour, the most outlandish, salacious, preposterous rumors were picked up in the press, sent bustling around the world without examination, and then spoken into the record on the floor of the U.S. Senate. Famous magazines jumped eagerly at the chance to join the mob. Members of the world’s greatest deliberative body donned the mantle of the carnival barker. The nation’s editorial boards revealed themselves to be little more than stenographers. Summing up the spirit of the moment with pith, Sen. Lindsey Graham, R-S.C., asked a protester, “Why don’t we dunk him in water and see if he floats?” It was a good line, but one worried for a moment that the answer might be, “Yes!”
At no point did his detractors settle upon a message. Indeed, at times, they struggled even to identify the perp. Whenever the case against Kavanaugh seemed weak, the attention was transferred away from him and onto the groups he supposedly represents. So chronic was this habit that observers who tuned in to the spectacle halfway through could have been forgiven for wondering whether it was Kavanaugh who was being accused, or everybody with whom he shared a characteristic. Repeatedly, the press attempted to fill in the vast gaps in the case against the nominee by running critical pieces about men, or Republicans, or people who went to prep school, or pro-lifers, or college kids, or everyone who grew up in the 1980s. In concert, we were treated to a seemingly endless supply of personal testimonies that, while often sad, had nothing whatsoever to do with the allegations against Kavanaugh. For a while, the non sequitur was king: “I was assaulted, therefore ... .”; “I went to Yale, therefore ... .”; “I drank a lot in high school, therefore ... .”
Reasons for Kavanaugh’s supposed “unsuitability” were thrown at the wall like spaghetti—and, when disproven or ignored, immediately sent down the memory hole. I lost count of the number of alleged instances of “perjury” that were proclaimed at top volume and then dropped silently once debunked, and, after a while, was unable to track the whereabouts of the legion of straw men that had been impressed into service on behalf of the #Resistance. It was fitting, therefore, that the eventual case against Kavanaugh rested upon a presumption that would have made Franz Kafka blush: Namely, that Kavanaugh’s anger, frustration, and incredulity at the way in which he had been treated was reflexively cast as a liability. Never mind that Kavanaugh’s professional reputation had been as perfect as can be. Never mind that every single person who came out to comment on his attitude toward women ended up endorsing his self-characterization. Never mind that even the lifelong friend of his primary accuser could remember nothing that even remotely matched her description. Never mind that he presented before the Senate a devastating case for his innocence, predicated upon the total lack of corroborating evidence behind the charges he was refuting. “He seems so upset at being called a gang rapist,” carped the assassins. “And we can’t have that on the bench.”
If you are wondering how tight is the pretzel knot that is established by this standard, consider that it deems acceptable Ruth Bader Ginsburg’s open mocking of a presidential candidate, yet deems un-acceptable the righteous indignation of a man being asked live on television whether he has ever run a rape ring.
It should be clear by now that Kavanaugh did not expect to be asked such questions—indeed, it should be clear that he was shocked to his core at the manner in which his nomination had descended into the mire. Alas, in the future, others will not be so astonished. Who can doubt that, going forward, those who aspire to be nominees will think twice before putting their feet into the ring? Who cannot grasp that the calculation from this point on will be, “Is it worth it?”
As Kavanaugh observed during his testimony, the open season had its effect irrespective of the eventual outcome. “My family and my name have been totally and permanently destroyed,” Kavanaugh lamented, “by vicious and false additional accusations.” That he was eventually approved by the Senate does not change that fact.
Those who are tempted to regard what happened to Kavanaugh as a fluke or a one-off should take note of what Sen. Mazie Hirono, D-Hawaii, said when asked if Kavanaugh deserved the same presumption of innocence as everyone else. “I put his denial,” Hirono explained, “in the context of everything that I know about him in terms of how he approaches his cases.” Or, put another way: “He’s a conservative and an originalist, so he must be guilty.” Hirono’s approach tracked with some of her colleagues, whose position during the hearings was that Kavanaugh should be investigated by the FBI and then voted down irrespective of what the FBI found, and with the protesters who spent days outside the Supreme Court alternating brazenly between proposing that Kavanaugh was a criminal and arguing that his judicial philosophy made him unsuitable for the court.
“And I just want to say to the men in this country: Just shut up and step up. Do the right thing for a change.” U.S. Sen. Mazie Hirono, D-Hawaii Sept. 18, 2018
To listen to Hirono and her fellow travelers, one would suspect that Kavanaugh’s judicial philosophy was utterly beyond the pale. Yet nothing could be further from the truth. Rather, Kavanaugh has precisely the approach to the law that a Supreme Court justice must have if he is to avoid becoming just another politician. By his own testimony—and as is clear from his extensive judicial record—Kavanaugh sees his role as that of a neutral arbiter who has been given no more lofty task than to uphold the law as it was written. Unlike too many others, Kavanaugh does not consider himself a philosopher king, and he does not believe that he has been sent to Washington to correct the voters’ moral failings. He’s an arbiter, nothing more, nothing less.
Which, of course, puts him squarely in the crosshairs of those who hope for another politician in robes.
“I believe, if we are fortunate enough to win back the House and or the Senate, that’s when civility can start again.” Former U.S. Secretary of State Hillary Clinton Oct. 9, 2018
Among the many supposed “shortcomings” within Kavanaugh’s judicial record is his apparent unwillingness to pretend either that the Second Amendment does not exist, or that it is functionally meaningless when filtered through the courts. Dissenting in Heller v. D.C., heard by the D.C. Court of Appeals in 2011, Kavanaugh found that, under the precedent set in the Supreme Court’s decision earlier in D.C. v. Heller, there was no constitutional basis for a ban on so-called “assault weapons.” “It follows from Heller’s protection of semi-automatic handguns,” Kavanaugh wrote, “that semi-automatic rifles are also constitutionally protected and that D.C.s ban on them is unconstitutional.”
As a result of this rather straightforward observation, Kavanaugh was described in almost apocalyptic terms by those who opposed his nomination. Sen. Dianne Feinstein, D-Calif., told Kavanaugh at his initial Senate hearing that his “reasoning is far outside the mainstream of legal thought.” Sen. Chris Murphy, D-Conn., meanwhile, proposed that he was “a true Second Amendment radical.”
And then they tried to ruin his life.
And not just his life, but the lives of anybody who refused to be cowed. During the confirmation process, pro-Kavanaugh senators were explicitly targeted by individuals who were self-consciously stepping well beyond the realm of peaceful protest. The wife of Sen. Cory Gardner, R-Colo., was sent a text message accompanied by a threatening video depicting a beheading. Sen. Susan Collins, R-Maine, it was confirmed by her colleagues, was on the end of credible physical threats. And, having announced that he would vote “Yes,” Sen. Jeff Flake, R-Ariz., was chased into an elevator and screamed at for four minutes. Having watched the Flake incident, ThinkProgress’s Ian Millhiser encouraged his followers on Twitter to “confront Republicans where they eat, where they sleep, and where they work,” while The Nation’s Annie Shields went one further and suggested that she was going to start a “working group to follow Jeff Flake around to every restaurant, cafe, store, etc., he goes to for the rest of his life and yell at him.”
Were these mere idle threats? Given recent history, it would be naive to believe so. Although it is unacceptable and counterproductive, protesters screaming from the Senate gallery represent more of a nuisance than a serious hazard. But the rest of the behavior we have seen of late? That belongs in a different category altogether: The category of “the mob.” In the past year, we have seen a number of public officials chased out of restaurants—among them Homeland Security Secretary Kirstjen Nielsen, White House press secretary Sarah Huckabee Sanders, and Sen. Ted Cruz, R-Texas, and his wife. We have seen Florida Attorney General Pam Bondi spat upon. That these tactics were praised, encouraged and endorsed during the Kavanaugh affair is bad enough. That they were praised, encouraged and endorsed by figures as prominent as Hillary Clinton and Eric Holder is little short of extraordinary. We already know where this can lead. Recall last June when a Bernie Sanders supporter opened fire on Steve Scalise and a host of Republican legislators in an attack that, if not for the bravery and quick thinking of the Capitol Police, would likely have led to the deaths of a significant portion of the Senate’s members.
It is easy to forget just how remarkably unlikely was the restoration of the right to keep and bear arms. Indeed, just 30 years ago it seemed possible—if not likely—that the Second Amendment would crumble and disappear. At both the federal and state levels, draconian laws were piled high, often with an alarming amount of public support. Having read it out of the Constitution since the mid-20th century, America’s law schools were teaching that the provision applied solely to militias. And the courts—to which citizens of the United States are supposed to turn when their rights are being violated—were all but ignoring the issue. But then, something happened: Americans found their voices and insisted loudly that things must change. And in the courts, in the legislatures and in the academy, things did.
Happily, we have now reached the point where a majority of justices on the U.S. Supreme Court are taking the Second Amendment seriously. That development was by no means guaranteed, it was extremely hard won, and it has engendered some extraordinary pushback. There were many causes of the appalling attacks on Kavanaugh and his character. Among them, without doubt, was his reputation as a judge that applies the law as it is written, for in today’s hyper-politicized world, such a habit is regarded as an unforgivable sin. As we see more and more Kavanaughs appointed to the judiciary, we will see more and more attempts to turn the process into a gauntlet.
Regrettably, this was the beginning, not the end, of the brave new world to come. Americans who wish to retain their elementary rights should take note of that fact—and, when the opportunity arises, vote accordingly.
Charles C.W. Cooke is the editor of National Review Online.