The tweet by Feinstein reopened the debate for Judge Kavanaugh’s nomination, created a supplemental FBI investigation and further polarized a nation already galvanized by vitriolic political divergence. The relevance of a three-decade-old alleged criminal act is probative to one’s fitness for serving on the highest court in the land. There is a good case and little doubt for claiming any participation in a sexual assault, no matter how much time has elapsed, is a disqualifier for a lifetime appointment as a justice on the U.S. Supreme Court. On the other hand, juvenile records are sealed for legitimate reasons—among them, that young people make serious mistakes that should not prevent them from living productive and contributing lives.
The tough issue that faced the Senate’s Judiciary Committee during the nomination process was not that of confirmed criminal behavior. The problem was the politically-motivated actions of Feinstein and others who—when faced with no corroborating evidence of criminal conduct by Judge Kavanaugh—continued a series of vague and inexpressible criminal accusations against him. These claims against Kavanaugh included perjury , questioning his fitness to serve, underaged drinking, and gang rape without evidence. These accusations helped to destroy the reliability and public confidence in the nomination process and the credulity of a “political” opponent.
Finding criminal behavior to silence political opposition was the pursuit. By withholding information on the accusations against Judge Kavanaugh throughout the summer, Feinstein’s office prevented critical debate on the merits of the difficult questions posed above. Moreover, this tactic by Feinstein served to exemplify the default political strategy employed by both parties: the criminalization of political enemies and censorship.
For those officials, serving at the pleasure of Americans, who choose to abuse their authority and knowingly break the law, prosecution is warranted and encouraged. Those checks against despotism rightfully exist. In Congress, a permanent subcommittee on investigations to the Committee for Homeland Security & Government Affairs exists to “stud[y] and investigat[e] the efficiency and economy of operations relating to all branches of the government.” Further, U.S. intelligence agencies have the right and obligation to raise the alarm and investigate concerns relating to foreign interference in American elections. The alarming rate (which exceeds the daily news cycle) at which frenzied pundits and elected representatives hurl criminal accusations against their political rivals is damaging.
What makes America the greatest country the world has ever seen is a shared vision for a better tomorrow. After all, America is not constrained to a geographical place—it is an idea. Unfortunately, or maybe fortunately, it is nearly impossible to imagine a day where all citizens of the United States wholly agree on the means of obtaining a nation free of faults, debts, sickness and conflict. The judgments for these decisions should be made at the ballot box, not in the courtroom.
Americans must distinguish between disapproving of what a political adversary does and stretching already broad and vague criminal statutes to cover political disagreements. The only clear “losers” with this divisive rhetoric are the American people and their civil liberties. All Americans who care about the Constitution and civil rights must unite to protest efforts to expand existing criminal law to address political opponents. This form of censorship tears at the fabric of the United States with potentially devastating effects. The criminal law must be reserved for violations of clearly defined crimes.
Albert Einstein once suggested that we cannot expect to solve problems using the same thinking that created those problems in the first place. As Americans remain entrenched in their own political spheres, magnified by micro-targeted advertisements and social media, it has become difficult to find common ground from which to develop effective communication and policy. Rather than seeking amicable solutions through reasoning, judgment and compromise, political discourse has resulted in partisan-fueled rhetoric that suggests political differences are tantamount to illegal or treasonous activity. It is time Americans stand up to politics that rely on criminal accusations to rally consensus.
Chris Davis is an active-duty captain in the U.S. Marine Corps, currently on orders to attend law school at the University of Tennessee College of Law. He has operational experience living overseas and deployed to nearly a dozen different countries. He is a graduate of the U.S. Naval Academy and holds a master’s degree in management and leadership. The viewpoints contained in the article are the author’s own and not representative of the Department of Defense.