Opinion

Rejecting Brett Kavanaugh's nomination might not be fair, but it's justified: Robyn Urback

Very little that has transpired over the past few weeks in the Supreme Court confirmation process of Brett Kavanaugh has been fair to any of the parties involved. But normal standards of process and fairness cannot necessarily apply to someone asking for extraordinary power.

The perception of a Supreme Court composed of impartial actors is more important than fairness to one man

Very little that has transpired over the past few weeks in the confirmation process of Supreme Court nominee Brett Kavanaugh has been fair to any of the parties involved. But normal standards of due process and fairness cannot necessarily apply to someone asking for such extraordinary power. (Gabriella Demczuk/Reuters)

There is almost nothing about the Judge Brett Kavanaugh saga that has been fair.

It's not fair that a wrench was thrown into his nomination at the 11th hour, even though Sen. Dianne Feinstein was, for weeks, in possession of a letter that alleged the Supreme Court nominee drunkenly sexually assaulted Christine Blasey Ford when they were in high school. The Democrats quietly sat on this information until the very last minute, conveniently leaving things to reach a crescendo awfully close to the upcoming midterm elections.

It's also not fair for the Republicans to have expected Feinstein to release the letter against the expressed wishes of the author, Ford, who wanted it to remain confidential. It wasn't until details of the letter started leaking out that Ford acquiesced to pressure to reveal her name and tell her story. That was her decision to make, not Feinstein's.

Christine Blasey Ford had nothing to gain by coming forward with her allegation against Kavanaugh. (Win McNamee/Pool Photo via Associated Press)

It's not fair that Kavanaugh was made to wait 10 days before he could give his side of the story to the Senate judiciary committee. Ten days is a lifetime in the furious ecosystem of unproven allegations, rumours and conjecture.

It's also not fair that Ford, who had nothing to gain from coming forward, was made to weather the spectacle and humiliation of retelling her most traumatic moment in front of the world. It's not fair that the burden fell on her shoulders, or that she had to endure death threats and intimidation. It is unconscionable that she was mocked by the president of the United States.

It's not fair that inconsistencies in Ford's retelling of her story — including dates and timelines, and the number of people who attended the party — can be so casually shrugged off by those who believe her. The individuals Ford says were there that night cannot confirm her story. That doesn't mean it didn't happen — and it is well established that victims of trauma rarely recall all the precise details — but it is understandable that it would breed some degree of skepticism.

It's also not fair that Kavanaugh can seemingly perjure himself, without consequence, before the Senate judiciary committee. Kavanaugh told the committee that he heard about a second allegation — Deborah Ramirez's claim that he exposed himself to her at a university party — at the same time the rest of us did: when it was published in the New Yorker. But text messages Kavanaugh appeared to send to former Yale classmates before the story was made public contradict that claim. He also apparently lied about his drinking, and possibly about references in his yearbook. It is rather astounding, in fact, that dishonesty under oath by a man tasked with upholding the law has somehow been rendered a tangential concern. 

It is not fair, in theory, that largely uncorroborated allegations can potentially derail someone's entire career.

But it is also unfair, in this specific case, that these allegations remain uncorroborated because the scope of the FBI's supplemental background investigation was so narrow that Ford herself was not interviewed, nor were the people who said they could help back up her account. It is also unfair to expect evidence to meet a burden of proof required in a court of law when the question before the Senate is of Kavanaugh's character, not of criminal responsibility.

It is not fair, generally speaking, to expect someone to maintain his composure when he believes he is being unjustly accused; when he is watching everything he's ever worked for crumble over a matter of weeks. It is unfair — in almost every circumstance — to hold his aggression, his tears, his accusations against him. Kavanaugh's testimony was furious, emotional and at times conspiratorial. That is understandable. Were he defending himself in a court of law, it might be excusable. But it's not here.

Very little that has transpired over the past few weeks has been fair to any of the parties involved, and Republicans can, with some credibility, insist that list includes Judge Kavanaugh. But normal standards of justice and fairness cannot necessarily apply to someone asking for such extraordinary power.

Watch: Kavanaugh gets combative with senator when asked about excessive drinking.

U.S. Supreme Court nominee testifies that he does not have a drinking problem. 0:50

The perception of a Supreme Court composed of sober, rational, impartial actors is more important than fairness to one particular man. Kavanaugh forfeited any claim of non-partisanship when he suggested — through tears, accusations and aggressive retorts — that Democrats had orchestrated a campaign to destroy his career. Regardless of whether it's true, and regardless of whether his reaction was provoked, his performance betrayed the principles of appropriate judicial temperament. 

That impression will never go away, and would plague every ruling from a Kavanaugh-confirmed Supreme Court. This saga wasn't fair to Christine Blasey Ford, or to Brett Kavanaugh, or to their spouses or kids or friends. Nor was it particularly fair to the named witnesses railroaded along the way. 

But whatever personal injustices may have been committed against Kavanaugh matter less than the perception of justice that resonates — or is supposed to resonate — from the Supreme Court. Confirming Brett Kavanaugh affects that perception.

It's not fair. But rejecting Kavanaugh's nomination is justified. 

Whether that happens, however, is an entirely different matter.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.

About the Author

Robyn Urback

Columnist

Robyn Urback is an opinion columnist with CBC News and a producer with the CBC's Opinion section. She previously worked as a columnist and editorial board member at the National Post. Follow her on Twitter at:

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