Brett Kavanaugh and the United States of Gilead

By Rob Schofield

Image Credit: C. Suthorn

SATURDAY 6 October 2018, Unites States Senate Chamber. Vice President Mike Pence, a man who has stated that it is his express goal to make abortion illegal in the US “in our time”, presides over the final vote to confirm alleged sexual predator Brett Kavanaugh as the next Justice of the Supreme Court. This historic political moment will be determined by just 100 words from 100 people.

Despite calls for decorum, proceedings are interrupted by raised women’s voices, protests from the viewing gallery. The cries are echoey and unclear, there are no microphones near the gallery and the words become jumbled, their meaning lost as they travel across the Senate floor. Pence’s voice, however, comes through with perfect fidelity as he calls for order.

“The Sergeant at Arms will restore order in the gallery.”

The screams intensify as the security staff attempt to silence the dissenters. The live stream remains on Pence who shifts uncomfortably in his chair as a voice cries out “I do not consent! I do not consent!” It is unclear what is happening. There is no camera pointed at the viewing gallery. The cries continue.

“The Sergeant at Arms will restore order in the gallery.”

Eventually, the screaming subsides. A clerk reads out the names of each of the Senators.

“Ms Baldwin.” “No.” “Mr Barrasso.” “Aye.” “Mr Bennet.” “No…”

The clerk reaches Susan Collins’ name. To pressure her, a $3 million crowdfund has been raised and unless she votes no it will be donated to her opponent in the 2020 election. But it is already too late. She responds “Aye”. Senator Joe Manchin also votes yes, the only Democrat to break with the party line. Each of these provoke loud disembodied cries of protest.

“The Sergeant at Arms will restore order in the gallery.”

Pence bangs his gavel on the rostrum and repeats his command so the vote can continue. He speaks with the monotone voice of a disinterested auctioneer selling off a frivolous trinket.

“The Sergeant at Arms will restore order in the gallery.”

The sound from the gallery protest suddenly becomes a roar, a cacophony of defiance. The Facebook Live stream distorts the audio, making the voices sound ghostly and muffled, as if it were the collective voice of every woman in the US who’s bodily autonomy is at risk bleeding into the halls of power.

“The Sergeant at Arms will restore order in the gallery.”

It has all come to this. Substantial hope and effort has been placed in Republican Senators Jeff Flake and Susan Collins as potential no votes, but to no avail. Lisa Murkowski is the sole Republican defector, but even this is a cowardly dodge: Murkowski explains that she is paired with an absent Democrat Senator Steve Daines, her vote would make no difference so she votes “Present” instead of “No”.

The votes are counted. Pence confirms Kavanaugh will be sworn in, winning by a 50–48 decision. Disquiet erupts again.

“The Sergeant at Arms will restore order in the gallery.”

When the Senate Chamber was first used in 1859, it was originally lit by a huge glass skylight. However, senators complained that the sound of the rain on glass was deafening and disruptive. In 1949 the glass was replaced by a solid ceiling of steel and plaster.

The vacancy

Three and a half months earlier on 27 June, Justice Anthony Kennedy announced his retirement from the Supreme Court. Despite being a conservative nominated by Reagan, Kennedy was a swing voter who cast the deciding vote on 5-to-4 rulings that legalised same-sex marriage and upheld abortion rights. With control of the White House, House of Representatives and Senate, the Republicans’ grip on the US political system was set to squeeze ever tighter as Trump chose Brett Kavanaugh as his second nomination to the court. Supreme Court appointments are for life, so now nothing stood in the way of Trump securing a reactionary majority on one of the most powerful judiciary bodies in the world for a generation.

In the face of this, one woman said no. Dr Christine Blasey Ford had nothing to gain when she contacted her congresswoman Anna Eshoo with a letter detailing how when she was a teenager Brett Kavanaugh sexually assaulted her with the help of his friend, now author Mark Judge.

“Brett and Mark came into the bedroom and locked the door behind them… I was pushed onto the bed and Brett got on top of me… I yelled, hoping someone downstairs might hear me, and tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes… I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming.”

Democrat Senator Diane Feinstein, Ranking Member of the Senate Judiciary Committee which was conducting hearings to vet Kavanaugh, was alerted to the allegation letter but Ford insisted she wanted it to remain confidential. However, rumours were already swirling around Washington and, under pressure from her fellow Democrat senators, Feinstein shared the letter with the White House, redacting Ford’s name. Despite Ford’s decision to remain anonymous and prevent herself being catapulted into the centre of American politics, the choice was made for her. Journalists were already tracking her down and publishing inaccurate stories about her. On 16 September, Ford performed an act of enormous bravery and went public, giving up her anonymity, and her normal life as a private citizen.

The hearing

On Thursday 27 September, people in the United States and around the world watched enraptured as a spectacle of both horror and heroism unfolded: the Senate Judiciary hearing on the confirmation of Supreme Court nominee Brett Kavanaugh.

Ford was composed, eloquent and credible. She used her experience as a psychology professor to give a scientific explanation of why some precise details of the attack escaped her, but some details were burned into her memory indefinitely: “Indelible in the hippocampus is the laughter, the uproarious laughter between the two, and their having fun at my expense.” We learned that Ford had indeed been correct to fear going public. Along with reliving the most traumatic moment of her life on the international stage, she told how she had been forced out of her home by repeated death threats and harassment. No wonder then, that Kavanaugh’s three other accusers did not come forward to testify publicly, lest they be subjected to the same Handmaid’s Tale-esque campaign of terror.

In the afternoon came Kavanaugh’s testimony. This was a pure manifestation of white male outrage. Although the event as described by Ford took place 36 years ago, it was almost like we were watching that very same pompous, arrogant, 17 year old boy sitting in the chair on Capitol Hill, instead of a 53 year old judge. It was a testimony that said loud and clear as the world watched: “I am a rich, Ivy-League educated member of the political elite in this country. How dare you, a woman, think you have the right to take away what is rightfully mine?” The committee was presented with one witness who was credible and one who was not. One witness answered questions in precise, succinct sentences, the other witness evaded questions, even responding “I don’t know, have you?” when asked by Amy Klobuchar if he had ever blacked out from drinking.

Despite all this, Kavanaugh has been sworn in, and the US is looking down the barrel of a generation of fresh attacks on the rights of the oppressed and working people. Kavanaugh’s record as a judge shows he is consistently anti-union and pro-business, including overturning a decision to allow Verizon workers to display pro-union signs on company property, absolving Florida theme park SeaWorld of responsibility after a trainer was killed by a whale, and even ruling in favour of the Trump Organisation and having the results of a union election thrown out. So what is to be done?

The judgement of history

Many liberals have remarked that “history won’t be kind” to Joe Manchin and the Republican senators who confirmed Kavanaugh’s appointment. Democrat Senate Leader Chuck Schumer said, “I share the deep anguish that millions of Americans are experiencing today. But I say to you, my fellow Americans, there is one answer: vote”. To this, socialists must say that action cannot be deferred until 2020; ignore the liberal procedural fetishists who believe political change can only be achieved in courts and parliaments.

The Supreme Court is not a dysfunctional element of an abstract democratic system but  an integral part of the bourgeois state machine. It was deliberately placed at two removes even from the votes of the citizens; nominated by the President and appointed by the least democratic part of the legislature, the Senate – able to overrule and strike down laws from the more democratic House of Representatives. It is clearly based on the idea that the law must stand above the will of the people. This is not so that its judges can embody pure reason and absolute justice, it is so that the general will of the capitalist class shall be served on all matters of vital importance to it.

The majority of US citizens wanted a Supreme Court Justice who would support abortion rights, and yet the unrepresentative class nature of the US political and judicial system has delivered the opposite. It is time for the US left to look beyond the ballot box and organise actions similar to the 2017 Women’s March but farther reaching. It is time to occupy streets, government buildings, courthouses and demand “Until we have justice, no one else will”.

One slogan that has been batted around in recent days is “Pack The Court 2020”. The theory goes that since the constitution specifies no limit to the number of justices that can sit on it the strategy should be to elect a Democrat President and Senate majority who will override procedural norms and pack the court with justices to ensure a progressive majority. However, this would be an unwise strategy for socialists to pursue. How do you hold these justices to account? If they are nominated by a Democrat will they hold the same interests as the working class or simply repeat the betrayals from the party’s past? We don’t to manipulate or take advantage of the deficits in bourgeois democracy, we fight to elect socialist candidates who use the platform to act as tribunes for a new, revolutionary democracy. The Supreme Court with its life-long appointments is an aberration that should have no place in a truly democratic society. Don’t pack the court, defy it.

Howard Zinn’s 2005 piece ‘Don’t Despair About the Supreme Court’, written after President Bush nominated his second Supreme Court Justice, is both uplifting and damning: “The Constitution gave no rights to working people: no right to work less than twelve hours a day, no right to a living wage, no right to safe working conditions. Workers had to organise, go on strike, defy the law, the courts, the police, create a great movement which won the eight-hour day, and caused such commotion that Congress was forced to pass a minimum wage law, and Social Security, and unemployment insurance.”

Hopefully during this grim time for fighters against oppression everywhere we can read Zinn’s words, reminding ourselves that whilst the grim media spectacle of Kavanaugh’s testimony and confirmation vote may captivate the media cycle, real democracy is to be found outside the steel and plaster necropolis on Capitol Hill. It is to be found in our workplaces, in our universities, in our hospitals, in our restaurants, in our streets. The potential for revolutionary democratic change can be found anywhere where we can find fellow spirits who recognise injustice and oppression and are willing to organise together for a better world. Above all what the instruments of the capitalist state can and will inflict on us is in the last analysis a matter of the balance of class forces. And this is determined by the strength of the class struggle.