The “intergalactic freak show” of the Democrats' opposition to the appointment of the eminently well-qualified Judge Brett Kavanaugh to the Supreme Court is profoundly depressing for those of us who believe that the Supreme Court ought to be above politics. This is not the feeling of the Democrats, however, who understand that a Justice Kavanaugh will make it more difficult for progressives to achieve their political and cultural ends through the courts. Our judiciary has become the primary policy-making organ of our polity. Democrats are happy with this because these policies have generally accorded with the progressives’ program, but Republicans believe that having nine unelected judges make constitutional law and policy for the polity is not what the framers contemplated.
At one level, then, what is at stake is who will make law and policy for America — elected officials or unelected judges — but there is much more revealed by this brouhaha. For some time, now, the left has been launching an attack on diversity of thought itself. To depart from the prevailing progressive orthodoxy in the academy, the media, and the Democratic Party is to risk ostracism and contumely, and this is an experience conservatives in the law schools, the bench, and politics now routinely endure.
We have seen the smear tactics that are being employed against Brett Kavanaugh before, but never with such widespread virulence. Still, the fury of Kavanaugh’s enemies is understandable, since if, indeed, he is the perpetrator of an attempted rape (the assertion Christine Blasey Ford has levied), he deserves punishment, condemnation, and impeachment. If, however, her story is a fabrication (and it is so far unsubstantiated), then it is those seeking to besmirch the reputation of the judge who are reprehensible.
More is involved than the mere question of which of these two is telling the truth. Part of the rage revealed in the assault on Judge Kavanaugh flows from distaste for the privileged background which both he and his accuser share. Both were students at elite private schools in the D.C. metropolitan area, and it appears that part of that culture was an unsupervised and alcohol fueled atmosphere in which boys allegedly routinely took advantage of girls. That sort of misconduct is contemptible and ought to be prevented, but there is still a question whether Kavanaugh was such a miscreant, or whether he represents something worthy.
According to the Council for American Private Education, 25 percent of our schools, educating 10 percent of our PK-12 students are private. At their best, these elite academies can function to turn out wise leaders. Novelist John Irving, who attended Phillips Exeter Academy, has written movingly of an ethos of public service at that institution, and it is striking that of our last three presidents, all went to such schools (George W. Bush to Phillips Andover, Barack Obama to Punahou, and Donald Trump to the New York Military Academy).
Of the nine Supreme Court Justices now on the court, only three went to what we might call regular public high schools, Anthony Kennedy, Samuel Alito, and Ruth Bader Ginsburg. Elena Kagan and Stephen Breyer both attended competitive magnet public high schools, she in New York, and he in San Francisco. Clarence Thomas and Sonia Sotomayor were both educated at private Catholic High Schools, while Neil Gorsuch attended the same elite Catholic private high school, Bethesda’s Georgetown Prep, as did nominee Kavanaugh. Chief Justice John Roberts attended the equivalent in La Porte, Indiana, La Lumiere School.
The justification for aristocracy has always been the concept of noblesse oblige (that nobility or privilege carries with it an obligation to aid the less fortunate through public service), and, at its best, that is what American private education offers. Unfortunately, in recent years, too many of our elite institutions at both the secondary and higher levels have been consumed with an ideology of self-actualization and hostility to traditional values. Judge Kavanaugh, according to his supporters, is an exemplar of the ideals of altruism, self-sacrifice, and community service to which private education in this country was once committed.
Kavanaugh’s elevation to the Court would allow him to continue that public service. I hope that this will happen, and I hope and expect that the attack on the judge will be exposed really, as an attack on what he represents by its ideological enemies. If the assault on Dr. Ford occurred, whoever perpetrated it ought to be punished, and the atmosphere in which it occurred ought to be eradicated. The educational system and ethos that produced Brett Kavanaugh, however, is a worthy one, and it ought to be our responsibility to reform, preserve, and nurture it for the good of all of us.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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