When it was nothing more than the anonymous taint of a 35-year-old claim of sexual abuse, entirely unmentioned until after hearings were concluded and only raised by the beleaguered Senator Dianne Feinstein in a “secret” letter to the FBI unceremoniously leaked to the public, it was a desperation tactic, unworthy of anything more than a blanket denial. After all, if it was real, if there was anything worthy of the Senate’s or public’s attention, Feinstein’s failure to mention it before would have been outrageous.
Would the senator who failed to get the endorsement of her own party neglect to mention that a nominee to the life-tenured post on the Supreme Court tried to rape a woman in high school? Would she say nothing that he lied to the Judiciary Committee?
Feinstein’s claim was that she sought to respect the accuser’s desire for anonymity. After all, isn’t that more important than vetting a Supreme Court nominee, particularly after the efforts to falsely smear him with vapid cries of perjury? The Dems were beyond desperate to find some way to derail this nomination. Desperate people do desperate things.
Feinstein tried to game both sides of the accusation, revealing its existence while concealing the identity. Get the benefit of the taint while getting the benefit of being supportive of the “victim.” It was the best she could do under the circumstances. It wasn’t working, and the accusation was going nowhere.
Then Palo Alto University clinical psych prof Christine Blasey Ford came out.
Now, Ford has decided that if her story is going to be told, she wants to be the one to tell it.
This “reason” has received very little scrutiny. It would have been a fine reason years ago, months ago, even weeks ago. Now, after the close of the hearings, it’s inadequate. If she didn’t want “her story” told, she shouldn’t have brought it up. And if she wanted to be the one to tell it, she shouldn’t have demanded anonymity.
But to seek to have her story used, to seek anonymity and then flippantly flip because “reasons” after all else failed, and then her anonymous story failed, doesn’t cut it. It’s a disingenuous reason. It smells. Like Feinstein, she tried to have it both ways, enjoy the benefit of the accusation while enjoying the benefit of anonymity so she wouldn’t be taken to task and subjected to scrutiny for this claim.* Who did she think was going to tell her story?
There is a process that confirmation hearings go through, a witness list, preparation, an opportunity for the nominee to know what will be claimed against him such that he can prepare his response, and of course, his opportunity to respond. It’s a reasonable process, not quite due process as this isn’t a trial, but a confirmation hearing. It’s not a legal process but a political one.
Still, sandbagging the nominee undermines the essential fairness of the process. In a hearing so disgracefully replete with the deceitful gamesmanship of the desperate, it’s fallen to new depths.
But now that Ford’s allegations are out there and she’s provided sufficient information to raise a taint, if substantially less than sufficient to prove her claim**, the question must be confronted: what to do about this next act in this shitshow of a hearing.
David Lat, a Kavanaugh supporter (whereas I am not***), writes at the New York Times that the vote should be delayed.
The way in which Ms. Ford’s allegations came to light was, to put it charitably, deeply unfortunate. These claims should have been thoroughly and discreetly investigated weeks ago, by nonpartisan F.B.I. agents and bipartisan Senate investigators, in a way that protected Christine Ford’s privacy and Brett Kavanaugh’s good name. But here we are.
For all the legitimate cries of foul against what’s happening, Lat is right. Here we are. Deal with it.
But Ms. Ford should at least be heard, and not just because the #MeToo movement has made the importance of hearing out victims of alleged sexual misconduct even more obvious than it already was. The alleged perpetrator and witness should be heard from as well, and everyone involved should be placed under oath and subjected to aggressive questioning.
Lat, however, contends that the delay should first involve an investigation.
Considering the small number of witnesses involved — perhaps Ms. Ford, Mr. Kavanaugh, Mr. Judge, Ms. Ford’s husband and her therapist — an F.B.I. investigation followed by hearings wouldn’t take very long. The process might not be complete before the start of the Supreme Court’s new term on Oct. 1, but it should easily be able to be done before the midterm elections, if that’s the concern of Senate Republicans.
If these allegations aren’t aired, now that they’re “out there,” both Kavanaugh and the institution of the Supreme Court, the “least dangerous branch,” will suffer terribly for it. Progressives, like Linda Greenhouse, have been crafting the “partisan hack” narrative about the Court since Trump’s election, and this only feeds the insanity. The integrity of the Court demands the hearing be reopened and Ford be called to testify. She can put up or shut up. And the Dems, as well, can have their moment to show they have something real or it’s just a last-minute desperate attempt at character assassination.
Is there anything to “investigate”? That time has come and gone. Delay the vote for a day or two, let the Ford witnesses testify, let Kavanaugh and the other man accused, Mark Judge, testify, and then get on with it. Delay is the Democrats’ goal here, to push confirmation over beyond the midterms in the hope of taking the Senate majority. The Democrats should not be rewarded with empty delay**** because they gamed the process with this last second Hail Christine.
And then, should the testimony of Ford prove credible and sufficient, one final question remains: Is a drunken sexual assault by a high school boy 35 years earlier reason to reject a person whose life and career since have been exemplary from the Supreme Court? That’s another political question for the Senate to decide, one that puts many of the current conflicts as to responsibility, sexual assault and redemption in issue. But until Ford’s testimony is aired, no one knows whether the question is even raised.
There are a great many reasons why this accusation, and the Dems handling of it, are dubious and disgraceful, but it doesn’t change the fact that “here we are.” Deal with it and then take the vote. Let the chips fall where they may.
*Without question, Ford’s entire life will be subject to scrutiny and, no doubt, exceptionally harsh attack.
**Her testimony is legally sufficient, in itself, to “prove” her claim. This doesn’t mean her testimony will be found to be credible or sufficient, but that it could be. There is also corroboration, although it’s quite weak, factually conflicted and so vague as to not mention Kavanaugh among the “four” men her therapist’s notes state she claimed, now reduced to two men. Then there’s the polygraph she took, more a palliative for the masses, as it’s worthless to establish the truthfulness of her accusations.
***Whether Kavanaugh will prove to be terrible or merely bad on crim law issues remains to be seen, but he certainly isn’t the justice a criminal defense lawyer would want on the Supreme Court. That said, the integrity of the Court, and the process, is a stand alone virtue if the Court is to serve it’s institutional function in society.
****Lat argues the investigation “wouldn’t take very long.” On the other hand, it wouldn’t take any time now at all had this been raised prior to the hearings, and how long is “very long” when it comes to a “full investigation” is a perpetual mystery. A day? Month? Until next November?
I read Judge’s book years when it first came out. Based on the lifestyle and anecdotes discussed in it, as well as Ford’s now having gone public, I feel that there is now available sufficient evidence such that the matter warrants additional scrutiny.
Although Ms. Ford, by having participated in that type of lifestyle herself, doesn’t come out looking exactly saintly, the questions raised are now sufficiently supported as to warrant additional investigation.
Remember, that in the 1990’s, when the Judge book first came out, Kavanaugh was hardly a “household word” and the author had no political axe to grind at that time.
“Additional scrutiny”? Well, thanks for clearing that up.
WTF is your point?
His point is that your comment was vague horseshit that added absolutely nothing of substance. The point of the post is that Ford’s accusations need to be aired at a reopened hearing. You dumbed it down to the utterly meaningless “additional scrutiny,” as if anybody gives a fuck how some rando feels about it. And his point was obvious to everyone but you, dolt.
You’re welcome.
Thanks so much, dolt.
Have you had your IQ tested lately?
,
You suck at this. It’s been fun, but now you’re done here.
“Is a drunken sexual assault by a high school boy 35 years earlier reason to reject a person whose life and career since have been exemplary from the Supreme Court? ”
Yes.
The “exemplary since then” redemption narrative only works if he had sought redemption. Absent that, those actions (if true) would put him in a bad class of citizens.
I have never sexually assaulted anyone. I doubt you have, either. Despite the ludicrous statistics often mocked here, most people have never sexually assaulted anyone. In a country of 350 million people, I am confident that we can find at least one other competent USSC justice who has never done this sort of thing.
With that said, he may well be innocent, in which case it doesn’t matter anyway. Since Ford supposedly talked to a shrink a long time ago, we should at least have some supporting circumstantial evidence soon. Of course people can make shit up, and of course people can (and often do) lie, even to their therapist, but it will be more credible if she was accusing him in private years ago.
According to the WaPo story, the therapist’s notes say she was assaulted by four men but fails to include any names. While it may corroborate an assault, it doesn’t corroborate that the assault was by Kavanaugh.
But as to your “yes,” that’s a judgment call. I doubt any serious person would argue that it doesn’t matter, but does it matter enough to preclude his confirmation? There may well be other qualified nominees who sexually assaulted no one in high school, but that really doesn’t address the issue.
Also yes. I have had dozens of clients of the same cohort and charged with similar conduct. Those convicted who weren’t fortunate enough to get YO are tainted for life and ain’t going to be sitting on no Supreme Court. They got busted, mostly right away. But the hoary passage of time just goes to credibility.
SOL, SOL? Not in this milieu.
But this should have been part of the committee hearing already concluded. Now it’s sort of like the judge giving the prosecutor another bite after he forgets to prove geographical jurisdiction.
According to this morning’s WaPo, no less an authority than Kellyanne Conway says that Ford should be heard by Judiciary before any decision is made. If that doesn’t seal the deal ….
There is little prospect an “investigation” will establish anything at this late date. The Senate will have to decide whether The Terror has become so overwhelming that any woman anywhere in the country now has an absolute veto over any candidate for any office, if she but chooses to gin up a #MeToo claim of long ago misconduct.
It seems highly unlikely to me as well that there’s any significant benefit to be gained by additional investigation. Let them testify and then end this shitshow.
SHG,
I respectfully disagree with Mr Lat and you.
First, the hearing would probably not change the minds of the Senators. The Anita Hill hearings were held and Justice Thomas was confirmed.
Second, the shadow of this woman’s accusations belatedly cast upon Judge Kavanaugh cannot be erased and a hearing will not clear his reputation. Justice Thomas still labors under the stench of the Anita Hill hearings to this day. Hence a hearing for Judge Kavanaugh would do little for the Court’s institutional reputation.
Third, given the long-ago time of the alleged assault and since the accuser has raised the specter of mental health and troubles with her marriage, this lady’s entire life will be fair game. The proposed hearing would require a deep dive into her life dating back to high school. To prepare for such a hearing, an investigation, if done right, would take far more time than Mr. Lat suggests.
Fourth, given the fact that she waived her anonymity so late while insisting before and during the scheduled hearing that she remain unknown, this lady will be ripped to shreds in front of national television whether she is telling the truth or not. No one will be helped by such a hearing and more harm than good will come to the accuser and the accused.
Fifth, and most importantly, a precedent needs to be set. That is: one cannot come out of the woodwork to attack a judicial nominee once the confirmation hearings have been concluded. The unfairness of an open-ended process is evident. Moreover, political mischief is invited if deadlines aren’t deadlines.
Don’t hold a hearing or do an investigation. No good will come of it.
All the best.
RGK
I agree that it’s highly likely that no good will come of it, but (as I wrote) much bad will come if she doesn’t get to testify. This is an unacceptable situation, but “here we are” and while a hearing may not make anything better, lack of one can always make things worse.
Scott,
If there is to be a hearing, everyone should agree that Committee counsel for the majority and minority will do the questioning rather than the Senators. Let real lawyers handle the hearing if one is to be held. Now is not the time for blowhards and worse.
All the best.
RGK
After suffering Kamala Harris’ withering cross, I pray this happens.
It amazes me how many folks thought that was an excellent cross.
Serious question, though. Is there precedent for questioning being done by counsel rather than by the Senators themselves? Judge Kopf raises an interesting idea, but without having researched, I’m not sure whether it’s either precedented or permitted. (Of course, there’s no guarantee that committee counsel will do any better. We all know lots of lawyers who couldn’t cross their way out of a paper bag.)
As you know, whenever you have a question but are too lazy to research your question, the best thing to do is put it out there so that someone else can do the work for you. It’s as American as apple pie.
Jim,
Fred Thompson, who had experience as a federal prosecutor, questioned John Dean during the Watergate hearings. Thompson then served as Minority Counsel to Ranking Member Baker and later became, as you well know, a US Senator and actor (e.g., “The Hunt for Red October”).
All the best.
RGK
Why is there always someone happy to rub tummies around here and make me look like the old meanie?
… the best thing to do …
Well, either that, or roll over and go back to sleep.
Scott, I get why you seem to think a hearing is now required, but today Feinstein says “there’s more“.
Should Kavanaugh survive this round of “prove this thing didn’t happen three dacades ago”m should they postpone again when they throw up the next anonymous, to become a person later threat a few days before the next vote?
And what’s the limiting principle for the unscrupulous that would gladly welcome an accusation for every nominee in the future?
I’m with Judge Kopf here. The time for the inquiry was during the inquiry. It appears Feinstein knew about it and chose not to release the info or even ask about it during private questioning. Unless that’s not accurate, I fail to see why will be beneficial to the Senate, the Court as an institution or the process.
New facts will sway me though.
Pretty sure she’s still talking about Ford’s allegation. If she’s got new, post hearing, stuff, then it’s a problem. This can’t go on forever.
This can’t go on forever.
Cite?
Terms expire and RBG can’t live forever.
#MakeSCOTUS7AGAIN has a nice ring to it.
“This can’t go on forever.”
Assuming facts not in evidence.
“There’s more that senators don’t know.” I think that’s just a famous axiom.
I see the merit in both Judge and SHG’s arguments, but I’m leaning towards Judge Kopf’s side on this one.
It’s definitely a wise move to offer Ford the chance to testify, with counsel representing the majority and minority (because if there is a higher power, Kamala Harris will never get to question anyone again). While I only convincingly fake being a mind reader, something tells me this idea will float this week and get rejected with calls for nothing less than a full-blown FBI investigation being the order of the day.
Then the Senate majority will say “Fuck it, at least we made the offer,” move to vote on Kavanaugh, and then move to bar any further potential accusers from coming forward after confirmation proceedings close. That vote would pass, and when Democrats get control of the majority again Republicans will attempt to piss and moan about how it’s completely unfair now that the other folks are in charge.
Meanwhile, no insider will have learned the damn lesson from all this bullshit: dirty pool and eroding rules in the name of partisan bickering just damages our society.
“…dirty pool and eroding rules in the name of partisan bickering just damages our society.”
Exactly. The Republicans played dirty pool with the Merrick Garland nomination, and payback is a bitch. As far as I’m concerned the Republicans can “mount up upon themselves.”
Note that making up allegations of long ago #MeToo incidents will also be open to both parties. This will not be a tool that only works for Democrats.
Dear Judge Kopf,
Thank you for standing up for beleaguered Procedure, the lowly handmaid to Justice. Can you even imagine being perpetually a maid but never a lady? The sheer horror of it all. Good for you, not so good for Procedure. She’s going to suffer more abuse in the name of her master, the poor thing.
Best,
PK
I don’t think the Republicans get a pass here. They also knew about this and bothered to get the letter with all those signatures. They could have opted to out this woman during the hearings. They didn’t. Moreover they completely ignored identity politics and picked a rich white male. The comparison with Justice Thomas is inapt. In the victim game he was a black man that went to school on affirmative action. Kavanaugh is just a slime. The way the media talks about him as inevitable is simply infuriating. If he gets on and the Dems take house and Senate, his immediate ouster will be openly discussed, as well as two other justices if not more. To fix this mess they’ll present a constitutional amendment to have justices elected. Which will of course be far worse.
Welcome to the beginning of the end of scotus
I gather you don’t care for Kavanaugh.
Where are you getting the information that they knew about this accusation beforehand? Or were you just inferring it from the existence of the letter testifying to his good character?
Nothing I’ve seen suggests the Reps had a clue who the accuser was until she outed herself yesterday.
Of course, people can discuss anything. Trump’s “immediate ouster” has been “openly discussed” (indeed, quite loudly so) since before he took office, but nothing has happened (nor will it until the end of his term, at the earliest). But to impeach, they need a 2/3 majority in the Senate, which isn’t going to happen.
But I’m glad that they “completely ignored identity politics” in nominating a Supreme Court Justice.
Stop ignoring Jay’s lived experience. Obviously we should be letting the woke nominate judges from their safe spaces
I, for one, half expected Trump to nominate a black lesbian transgender Muslim with severe hearing loss. Like Jay, I was disappointed.
Nothing new under the sun. It’s kinda sorta happened before.
Mark Twain.
“A resolution was passed in the House, several days ago, to appoint a Committee to investigate certain charges which had been preferred in a six line newspaper item, against one of the Justices of the Supreme Court of the United States to the end that he might be impeached if such a course seemed justifiable. You will observe that the House not only so far forgot its dignity as to entertain that thing, coming in such unauthorized, anonymous, and altogether questionable shape, but discussed and acted upon it. Such conduct as this is ill advised, and is calculated to cheapen the respect due to this high tribunal. The impeachment of a Judge of the Supreme Court is a grave matter, and should have a more respectable foundation than town gossip. Hon. Stephen Field was the Judge referred to. It was stated in the newspaper item that he had said at a dinner where he was a guest, that the Reconstruction acts were unconstitutional, and that the Court would so decide them. Any man might have known that so absurd a charge as that, and one so out of all character, would prove utterly ground less, and such has been the result. If we had a party of chattering old maids on the bench, we might expect them to gad about their official business, but wise, dignified old men do not do such things. I have inquired about the matter, and find that the circumstances are not worth detailing. They are not particularly creditable to the gentleman from whom the newspaper man probably got his information, either.”
Sadly, there seems no ethical or just way out of this. One can safely predict, for instance, that it will be suggested that the women, in therapy with her husband over a troubled marriage, suddenly recalls a childhood sexual assault and her underlying PTSD, which regulates her more recent behavior, viz, that which contributes to a troubled relationship. So her original story of four boys assaulting her, justifying or deflecting some marital discord, now morphs into the Trump resistance. So she is going to pay some price, even if she is simultaneously nominated as the next Jeanne d’Arc.
Likewide, how long until until a porn star or Playboy bunny, represented by some sleazy white shoes, show-business lawyer, pops up with a lurid story about Kavanaugh and one drunken night in a Toledo motel, maybe a rest stop on the New Jersey Turnpike? I’m thinking about 48 hours until Gloria Allred calls a presser. It is both conjecture but surely factual that Democrat activists are, from the quotable James Carville, dragging lots of hundred dollar bills through trailer parks.
We are presented with an allegation, made at the 23rd hour, which is now and always will remain unverifiable but also forever immune to debunking as well. We can watch the parties’ testimony, and perhaps judge the appearance of respective veracity, but how much will remain confirmation bias?
100% methinks.
We’re all downwind of this Feinstein dumpster fire, and we should all feel somewhat soiled as a result.
This may be the hill we all die on, whether we want to or not. What a mess.
JC,
I have rented sleazy motels in Toledo. Don’t try to slut shame me!
All the best.
RGK
Maybe it was Akron I was thinking, perhaps the unlikely-named Strongsville.
BB last week raised the specter of Murkowski and Collins flipping. Now the so-called shoo-in candidate is starting to look like an old shoe ready for the trash.
We suggested it was payback time for “Hi-Tech Lynching” crybaby from Peapickin, GA. under Bush 41, irregardless of Senate hearings protocols. Feinstein, Greenhouse and Totenberg are old pros. They know what they’re doing and who they’re doing it to.
I agree, this ends badly, possibly with Kav given the heave-ho for some youthful indiscretion long forgotten. But wait! Is this not what the robed ones do to us on a daily basis in courtrooms across Amerika? No luv lost between me and the Kav. May he get “borked” like distinguished candidates before him.
We hate the Supremes (not you RBG!).
And think it has become the most dangerous branch of govt., contrary to popular wisdom. We still believe 100 justices would go a long way toward addressing the denial of cert thousands of us receive in the mail annually.
SCOTUS is simpley derelict of duty in these modern times of chaos, dishonesty and utter discord in the judicial branch. Hit em with your best shot, Sen. Feinstein. You go!
Bill.
Welcome back. We missed you.
https://www.youtube.com/watch?v=V4_828BwZbk
…we too.
…’twere best it done quickly. I’m on the faction of do what it takes to end this shitshow quickly.
The legal profession has a thing about ‘fishing expeditions’, and rightly so. I fail to see how an ‘archaeological expedition’ would even be able to get up to that level of acceptability. Once the past becomes “relevant”, it will be viewed by presentist standards, and others will feel the opportunity to be heard, if only in the press.
Kav may not turn out to be a good SCOTUS member, but we have survived bad justices in the past. I seriously doubt that he’s some sort of super-Trump, so awful that better to ruin the SCOTUS than to allow him a seat. Burning down the house to kill the spider might be emotionally satisfying, but it gets expensive rather quickly.
Regards,
Nemo
Don’t hold a hearing. Absent a tearful confession she made it up or he did it, no one’s minds are going to be changed. However, you’re going to embitter Kavanaugh with progressive-cheered character assassination. All of a sudden, we’re going to have another Clarence Thomas on the court who hates all progressives. Occasionally, although less and less, whiny progressives sometimes overlap with due process hippies who believe firmly in getting a warrant, not talking to the police and not trusting what the government says. Tilting at this windmill might actually make Kavanaugh a worse Justice.
One way or another, he is on the federal bench, so it will be valuable for society at large that he has experienced this.
They’re already talking about impeaching off the Circuit after they beat back his nomination. Keep up, dammit.
Which won’t be successful, but will add to his education on the due process of The Terror.
After this poopshow, can you imagine what the next SCOTUS confirmation hearing will be like? If it’s true that conduct the nominee engaged in as a minor is potentially disqualifying, what limit is there on prying into the nominee’s personal history back to kindergarten?
The other unfortunate consequence of this mess is the collateral damage caused by people who should know better spewing dangerous and foolish notions that are uncritically accepted by the passionate.
Polygraphs results prove if you’re lying or telling the truth! Hiring an attorney = admitting guilt! Survivors must always be believed, so he was clearly lying when he denied the allegations!