THE selection of US Supreme Court Justices is a political process. Parties in power like to say, "elections have consequences".

The president gets to nominate Supreme Court Justices to fill a vacancy and the Senate acts to confirm or deny that choice.

At the end of the process, the public is supposed to feel confident that the lifetime appointment of these judges renders them free from the dominant political winds of the day.

In his time as nominee, Chief Justice Roberts declared his role to be that of dispassionate umpire, calling balls and strikes in accordance with the constitution.


Faith in the essential legitimacy of the Supreme Court underlies respect for the law, itself, in a people's democracy.

The notion of a non-partisan court has been upended in 2000 with the George Bush v Al Gore presidentail arce in which the court took it upon itself to decide a presidential election.

And it hasn't stopped there. When the votes on a contentious issue can be predicted, when partisanship on the court is normalised, the rule of law is in trouble.

It should come as no surprise that the nomination of conservative Judge Brett Kavanaugh, whose presence on the court would shift its balance decidedly rightward, has evoked a political whirlwind.

The Republican majority in the Senate, while slim, all but assured that the confirmation was a foregone conclusion.

The emergence of two accusations of serious sexual misbehaviour — one of attempted rape when the nominee was 17 years old — has made Kavanaugh's ascent anything but easy.

There is history here having its sway in more than one direction.

Twenty-seven years ago, the nomination to the court by Republican President George H W Bush, of Clarence Thomas, a conservative African-American jurist, was nearly derailed when Anita Hill, a lawyer under his supervision, claimed that Thomas had sexually harassed her.


She was attacked publicly and characterised as "a little bit nutty, a little bit slutty".

While Thomas prevailed, in a Democratic majority Senate, the stain has never left him. Perhaps validly so, as four willing corroborating witnesses were kept from testifying by committee chairman, Joe Biden, who seemed cowed by the issue of race.

Kavanaugh himself was involved in another high-stakes sex scandal.

He assisted Special Prosecutor Kenneth Starr in investigating President Bill Clinton.

Investigation into questions of wrongdoing in a failed real estate venture by then Arkansas Governor Clinton, soon devolved into a salacious tale of President Clinton's dalliance with 22-year-old Monica Lewinsky.

The public sympathy moved in Clinton's direction due to the over-zealous pursuit of the details of the sexual nature of the relationship, an intensity reportedly urged on by Kavanaugh.

As the political winds shifted, so too have Kavanaugh's opinions which give the (now Republican) president such wide-ranging authority as to declare laws unconstitutional — a role normally exclusive to the Supreme Court.

Jay Kuten
Jay Kuten

The hearings before the Senate judiciary committee, streamed live on the New York Times, were riveting.

Dr Christine Blasey Ford, the accuser, gave a credible account of the attempted rape by Kavanaugh, anchored in memory of the laughter of a drunken Kavanaugh and an alleged accomplice.

Kavanaugh attacked the Democrats on the committee, claimed he was the victim of a conspiracy including "the revenge of the Clintons".

Kavanaugh's furious partisan tirade, deflecting from the allegations, may please Donald Trump Republicans, but it raises questions of judicial temperament and, the impartiality required on the court.

Despite all evidence, should the majority succeed in seating him, it will put the faith of citizens in the Supreme Court in jeopardy.

Politically, too, Republicans may pay a high price in the 2018 midterm elections. That, too, will signal a continuation of divisiveness and vengeance in American politics.

Democrats, enraged by the off-hand treatment of Dr Ford's raw testimony and experience have already said that, regardless of outcome, this is not over.

Ironically, politics is nothing if it's not about memory.

Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing. He spent 40 years comforting the afflicted and intends to spend the rest afflicting the comfortable.