A better title might  be: Will Sens. Jeff Flake, Susan Collins and Lisa Murkowski F**k the country ?

The Kavanaugh Standard

Daniel Henninger Sept. 26, 2018

 https://www.wsj.com/articles/the-kavanaugh-standard-1538003069?mod=?mod=itp&mod=djemITP_h

A defeat based on these accusations will divide the country for a generation.

Judge Brett Kavanaugh’s nomination to replace Anthony Kennedy on the U.S. Supreme Court is a watershed event that will define America’s politics for years. If the Kavanaugh nomination fails because of the accusations made against him by Christine Blasey Ford and others, America’s system of politics, indeed its everyday social relations, will be conducted in the future on the Kavanaugh Standard. It will deepen the country’s divisions for a generation.

The Kavanaugh Standard will hold that any decision requiring a deliberative consideration of contested positions can and should be decided on just one thing: belief. Belief is sufficient. Nothing else matters.

Rape is already a prosecutable crime. Definitions of sexual harassment are undergoing a reconsideration that may yet produce new legal standards to determine liability or suitability for employment. Right now, we are not close to a consensus.

Once the decades-old accusations had been made against Judge Kavanaugh, with no corroboration available or likely, the Senate Judiciary Committee had no practical or formal basis for enlarging the discussion about his nomination. For everyone, the way forward was into a fog.

Then something new happened. Half of the Senate Judiciary Committee created this standard: “I believe Christine.”

It is an inescapable irony that the Kavanaugh Standard—“I believe”—is being established inside the context of a nomination to the highest U.S. court. This new standard for court nominees (and surely others in and outside politics) would be that judgment can be rendered in the absence of substantive argument or any legal standard relating to corroboration, cross-examination or presumption of innocence.

In fact, the Kavanaugh Standard would have less intellectual content than liberalism’s previous judicial gold standard—agreement with the Supreme Court’s decision in Roe v. Wade. The new, operative standard, assuming two Republican senators abandon Judge Kavanaugh, will come down to a leap of faith.

For a political cynic, like Chuck Schumer or Dianne Feinstein, all these considerations are pointless and irrelevant. Just win, baby. A bloodless political actor such as Sen. Schumer would say: Look, if there’s a problem of some sort with compromised legal standards, we can make adjustments later. They won’t do that.

If Democrats regain control of Congress and the presidency, this is how they will govern—with belief alone sufficient as justification for imposing policy.

Something like a politics-by-belief emerged with the Obama presidency’s remarkable number of broadly applicable executive orders issued by the Labor, Education and Justice departments and the Environmental Protection Agency. But even these orders, however coercive, permitted challenge as a misreading of available facts. The defeat of this Supreme Court nominee would be simply asserted. It would have about as much political legitimacy as a one-man-rule decree.

I have been wondering what the rest of the nation’s sitting judges are making of the Kavanaugh proceedings. Or more specifically, what Justices Stephen Breyer and Elena Kagan think of what they imply for the future of the law’s role in the U.S.

Looking at what has happened recently to university professors accused and then abandoned by their schools and colleagues for alleged racial offenses, or at the spectrum of proof in #MeToo incidents, it is clear that the political and academic left are contesting centuries-old standards of evidence.

Liberal jurisprudence and its arguments with conservatives, for example over Fourth Amendment search cases, is being displaced by a Democratic left—there is no other way to describe it—that prefers rough justice.

Rough justice is what the political left and the media left, notably the New Yorker and New York Times, is meting out to Brett Kavanaugh. Hawaii’s Sen. Mazie Hirono has emerged from this hearing as a hero of the new rough justice.

Professors at Yale Law School canceled classes this week so that much of the student body could travel to Washington to support Ms. Ford’s allegations, which suggests that the most popular class at Yale these days must be “Legal Principles from the Stone Age to the 10th Century.” It’s not a joke. In 20 years, a President Ocasio-Cortez will be naming these advocates of faith-based reasoning to the federal appeals courts.

In a more conciliatory atmosphere, one might say that even if the claims of a high-school offense were true, surely there is a case in adulthood for forgiveness. But these are unforgiving times, and that virtue is out the window.

Ultimately, this drama comes down to the choices about to be made by Republican Sens. Jeff Flake, Susan Collins and Lisa Murkowski. The question is whether the Senate’s advice and consent for appointment to the U.S. Supreme Court should be reduced to simple secular belief. More important is that the entire country is watching now, and we’ll find out soon what the American system of law is going to look like for the next 25 years.

Write henninger@wsj.com.