Original Post 9/18/2018
Let us presume that every allegation brought forward regarding Judge Kavanaugh’s behavior as a 17-year old minor is true or considered true enough to stop the Kavanaugh nomination to the Supreme Court. If such is the case, and the Senate refuses to confirm him, then an equally serious question must be brought to the table.
If Mr. Kavanaugh is not qualified because of moral character to sit on the Supreme Court then why is he qualified to sit on the federal bench at all? Character is character and all federal judges and justices are sworn to the same oath and are to be held accountable to the same constitutional standard of “good behavior” (Art. III Sec.1).
Clearly if the U.S. Senate cannot confirm Judge Kavanaugh because of an alleged sexual offense then the Senate clearly made an error in 2006 by confirming Mr. Kavanaugh to the federal bench in the first place. The Senate should immediately call upon the House to initiate impeachment proceedings and clear the federal bench from such an unqualified candidate.
Of course to be consistent to the law and the current practice the Senate and House must also now be willing to hear any and all charges of sexual misbehavior against all federal judges and justices. There are roughly 3,000 Article III federal judgeships. Everyone of them should be held to the same high standard of “good behavior.” What is good for Judge Kavanaugh should be good for all federal judges and good for America in the long run. Let’s clear the federal courts of anyone so charged and start the process over again with much greater sensitivity to matters of character.
Let the accusers come forth and the trials begin.
This is a bit complicated so for clarification, here is more on what we call “the extension of logic” in a debate over legal construction and consequence.
The Senate has the unique constitutional duty to confirm Presidential judicial appointments by providing Advice and Consent (Article II S.2). The standard of that advice and consent is the sole responsibility of the Senate to define. So if the Senate determines that allegations of past behavior alone, without corroborating evidence, are now sufficient to reject a nominee to the Supreme Court then the next logical question must be addressed. Is this same standard to be applied to all appointments to the federal bench?
If “allegations only” are a sufficient basis to disqualify a judicial nominee then the Senate has defined and accepted a new standard for serving on the federal bench. To be fair to all, that standard must be applied to all.
If so, then the accusations must be heard and processed by the constitutional means of impeachment. If there are ANY judges or justices on the federal bench who can be accused just as Judge Kavanaugh has been accused, then they should all be tried and removed from office by the same U.S. Senate.
So if Senator Feinstein and her colleagues are serious about concerns for moral integrity on the federal bench, their efforts cannot end with the Kavanaugh nomination to the Supreme Court. They must bring forth the same challenge to his ability to serve on any Court. And if they truly believe in the justice of their cause, then they must work to purge anyone from the federal courts who is in the same status as Brett Kavanaugh.
And what is that status: Kavanaugh has been accused of sexual imposition and wrong behavior against women when he was 17 and 18 years old. There is no criminal record and no corroborating evidence. There are only allegations but according to the “Feinstein Standard” allegations alone are sufficient for rejection from the federal bench.
And if the U.S. Senate adopts the “Feinstein Standard” as the correct definition of advice and consent then to be fair, especially to every alleged victim, the Senate must apply that same standard to all judges and justices.
Otherwise, Senator Feinstein and her colleagues will be declaring that sexual allegations are unacceptable for members of the Supreme Court but irrelevant when it comes to the 3000 other federal judges who serve based upon the Senate’s advice and consent.