Saturday, September 29, 2018

Why take the risk?

Sorry to keep posting on Kavanaugh, but the controversy opens up a range of ethical issues over and above Kavanaugh. 

One objection I've run across goes something like this: Kavanaugh isn't the only fish in the sea. Trump could withdraw Kavanaugh (a damaged candidate) and nominate another candidate with a conservative judicial philosophy. This isn't a criminal trial where the defendant faces imprisonment if convicted. No one has a right to be a Supreme Court Justice. Why take the risk of elevating an attempted rapist to the Supreme Court? 

That's a good question. What's the answer?

i) It sets a terrible precedent to disqualify someone based on unverified allegations of wrongdoing.

ii) Secular progressives are bent on punishing political opponents or ideological dissenters with loss of employment or even imprisonment. 

iii) Democrats are hoping to kill this nomination and play out the clock so that Trump won't get a second chance. Indeed, they're using the process to poison voters agains the GOP come November. 

iv) If, moreover, a nominee can be derailed by leveling an unverified allegation, then Democrats will repeat that tactic for every GOP nominee. 

v) There's always the risk that a political candidate or presidential nominee has undiscovered skeletons on his closet. For all we know, nominees generally may have done something disqualifying but we have no evidence of wrongdoing. Ford presents herself as a reluctant accuser. Suppose she never came forward.  

Suppose a judge accepted a bribe. The judge is nominated to the Supreme court. But suppose no witness comes forward. Indeed, we wouldn't expect a witness to accuse him if the accuser is the same person who bribed him. It's a crime to offer a bribe as well as a crime to accept a bribe, so there's an element of mutual blackmail. The witness can only accuse the judge on pain of self-incrimination. So there's always the risk that we might be voting for a candidate or nominee whom we'd vote down if incriminating evidence were to surface. That hypothetical would preemptively disqualify every nominee. We couldn't risk voting for anyone, since there's always the abstract possibility that they're hiding something that ought to bar debar them.  

vi) In addition, there's a difference between a merely hypothetical risk and having good evidence that the individual in question is actually compromised.  

vii) Finally, some risks are riskier than others. Taking giving a Muslim-American a high security clearance. So it depends in part on the potential for harm. 

1 comment:

  1. Here is a thought experiment: assume Scalia died in 2016 and Obama nominated Garland and it was inevitable that he would be voted on. What if there was a Republican hack attorney who came forward with a sham affidavit that Garland was a serial gang rapist. Can you imagine the Republicans taking it seriously?