Opinion: Kavanaugh not first nominee hurt by issue of his time

David Shribman
Supreme Court Nominee Brett Kavanaugh departs following the second day of his Supreme Court confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC.

Brett Kavanaugh, meet Caleb Cushing.

Long forgotten nationally and much ignored even in his native Massachusetts, Cushing (1800-1879) was a member of the House, attorney general in the Franklin Pierce administration, and a distinguished diplomat in the middle of the 19th century. He was also put forward for the Supreme Court and failed to win conformation, finally retreating into the mists of history, not even rating a place in the myths of history.

But he is worth recalling this week, when another embattled Supreme Court selection is at the vortex of a national political storm, his past actions under question, his suitability for the high court questioned amid great, roiling feeling. Like Judge Kavanaugh—but perhaps unlike any other Supreme Court possibility—Cushing’s past was seized upon in a burst of passion, for the issue at the center of his nomination fight was also at the center of national controversy.

In Judge Kavanaugh’s case, the dispute over whether he was involved in one or more episodes of sexual assaults comes at a time when the #MeToo movement has made sexual assault one of the principal issues in American life and raised the possibility if not the likelihood that cases involving sexual comportment could reach the high court. In Cushing’s case, contention over his views on abolition and the destiny of the Union came at a time when issues relating to race and Reconstruction were live issues certain to be adjudicated by the Supreme Court.

‘’The battles over Supreme Court nominations from the early history of the republic focused on the nominees’ views of national debates about certain foreign entanglements, about a national bank, about legal tender, about slavery, or about economic regulation,’’ Laurence Tribe, the Harvard Law School expert on Constitutional law, wrote in an email exchange the other day. ‘’Those issues were of course packed with emotion at the time, but their intersection with individual nominees turned on the nominees’ philosophical and jurisprudential views largely apart from the ways they had conducted their personal lives, whether as adults or as teens.’’

Given that there have been only 113 members of the Supreme Court, every case is necessarily different, and the Kavanaugh case has many unique elements.

It once was about weighty theoretical questions of justice. Now it’s about intimate questions of personal justice. It comes down to two basic questions, neither with a simple or perhaps even achievable answer:

Did he do it? Does it matter?

The 21 members of the Senate Judiciary Committee who are set to question Judge Kavanaugh and Christine Blasey Ford, the California research psychologist who says he sexually assaulted him, will consider those two questions. But their deliberations, and those of the 100 senators who will determine his destiny if his nomination reaches the floor, are colored by an ancillary mystery:

Are their answers to the ‘’Did he?’’/’’Does it?’’ questions colored by their party, their views on judicial precedent and their positions on legal abortion? Or put another way: Does where they stand on Judge Kavanaugh depend on where they sit in the party divide and on the important social and economic questions of the time?

The 19th century analogues to those questions were at issue with Caleb Cushing.

Despite his prestige and record of rectitude, Cushing was a lifelong center of controversy.

‘’During an age in which partisanship ran to extremes, Cushing made implacable enemies,’’ Claude M. Fuess wrote in the first paragraph of his two-volume biography of Cushing, published in 1923. ‘’He was not a figure whom Massachusetts abolitionists and their descendants could regard or remember with affection.’’

A later biographer, John M. Belohlavek, writing in 2005, said Cushing ‘’combined a dedication to the Union with hard-core ambition to advance the destiny of the nation and his own career,’’ adding, ‘‘ His inglorious failure to gauge the popular mind properly and the unwillingness of the citizenry to forget his errors in the secession crisis placed him on the fringe of elected public office for the remainder of his life.’’

The challenge the Cushing Supreme Court bid faced: He had expressed deep opposition to abolition. He was found to have written a warm letter of recommendation to Jefferson Davis (albeit a month before the firing on Fort Sumter but a month after Davis became president of the Confederacy).

He thus was too central to the issues of the post-Civil War period to be acceptable to the Republicans who prosecuted Reconstruction and were determined to punish the South for its rebellion and to enhance the prospects of the enslaved who were newly freed.

His name emerged as Grant searched for a successor to Chief Justice Salmon P. Chase. Cushing was 73, and his age was an issue. But far more important were his past views on issues that were not firmly in the past.

He had supported the Dred Scott decision, asserted that blacks were unequal to whites and that emancipation elsewhere in the New World produced ‘’anarchy, barbarism, and misery.’’

Frederick Douglass had described him as a ‘’gifted, earned, crafty unscrupulous corrupter of the public heart.’’ Republicans didn’t trust him, regarding him as a closet Democrat though his views evolved and he repeatedly asserted his loyalty to the Union.

That wasn’t enough. In the end, Cushing asked Grant to withdraw his nomination, arguing that ‘’the charges of disloyalty to the Union and the Constitution...are utterly destitute of foundation.’’ He was too much part the debate that he would be asked to adjudicate—the very quality that is at the center of Judge Kavanaugh’s drive to win confirmation.

David Shribman is executive editor of the Pittsburgh Post-Gazette.