Updated: Dec 18, 2019
Is Judge Kavanaugh telling the truth now?
This is the essential question when it comes to a lifelong position on the high court.
One might hope the results of a controversy over allegations regarding a 36 year old incident involving unsupervised minors would lead to more human understanding and a commitment from all of us to treat each other with both more justice and more mercy.
But such hope must take into account how we all struggle for decency and opportunity in a structure where a tiny few, very irresponsible elites, control too much “private” concentrated wealth.
Is Judge Kavanaugh telling the truth NOW?
The law is fabric, created, reinforced, undermined, and rewoven by power. Ultimately this power comes from human will, but the accomplishments and accumulations of past generations exercise tremendous pulls and insertions into the enveloping fabric of law.
This fabric, by force of history and the indeterminate nature of men and women, is cast over and stretched across all forms of injustice from war, genocide, expropriation of land, and brutal exploitation of human bodies and human labor.
In his Senate testimony Judge Kavanaugh spoke eloquently about the importance of judges dispassionately applying law as it was written in the past - despite the pressures of contemporary urgencies. He was speaking, of course, of the uncomfortable and inevitable distance between law and justice.
The law is a fabric, sometimes light as gossamer, sometimes more weighty than monstrous chains encrusted with biting rust. It is is woven between and around us to protect ourselves from ourselves. It is woven to protect rights (however they were defined) once they were won. And rights are always won, sometimes in the name of justice, sometimes as the result of might. Rights are never granted, especially not by law because law recognizes only rights that have been won, however that result came to be.
What kind of man is Judge Kavanaugh now? Is he now telling the truth?
Once they are won, law can protect rights. But law alone cannot guarantee rights.
The law is a fabric constantly being woven, reinforced, unwoven, and abraded by implacable forces of time and power. Rights, once won, can be scraped away by assertions and urgencies. Even the most treasured rights can be undone, leaving both the law and justice tattered with wide flapping gaps to be filled with the assertions and urgencies of power.
Some people believe we can, with the help of law, gradually improve the way we understand and deal with each other as humans with all our weaknesses, needs, and strengths. We hope in the possibility that our power is meaningful and worthwhile when measured against the highest standards which have emerged from our struggles to live and comprehend.
Power is simply not just the will of a majority, no matter how injured or angry or enthusiastic or organized - or hopeless. Power is also the accumulated force of traditions and legal rights which can protect a majority from its own folly - or allow an irresponsible few to control the disposition of concentrated productive wealth. The law bends to power as much (and sometimes more) than it shapes it.
Judges are men and women. They are not perfect. But we might hope judges are women and men who have learned from their own failures and weaknesses because they have developed the necessary courage and honesty to do that.
The question is whether or not Judge Kavanaugh is telling the truth now.