The Worst Possible Forum

With the most curious headline possible, the New York Times argues “Hit Pause on Brett Kavanaugh. The integrity of the Supreme Court is at stake.” Are they disavowing Linda Greenhouse’s last two years of shrieking how the Supreme Court was comprised of partisan lackeys and the progressive wing, now suggesting that perhaps there remains some integrity to salvage? Of course not.

Enough.

With a third woman stepping forward with accusations that the Supreme Court nominee Brett Kavanaugh committed sexual assault as a young man, this destructive stampede of a confirmation, driven so far by partisan calculation, needs to yield at last to common sense: Let qualified investigators — the F.B.I. — do their job.

Yes, the FBI, that investigative marvel that somehow missed serial gang rapes that everyone know about. Sure, it might delay the hearings, only briefly in David Lat’s inexperienced view, or perhaps until Senator Kamala Harris is sworn in, but isn’t it worth it to know the truth? Our wild swings of faith in the FBI’s magical powers remain a constant reminder that we latch onto anything we can when we’re drowning, even when it was a lead weight around our neck the day before.

There will be no FBI investigation, as the Times well knows. But it’s call for further investigation, and recognition that this confirmation hearing is so deeply mired in political gamesmanship, comes from a more basic understanding of the sinkhole in which the Senate, and America, finds itself. The feces has been flung and it’s splattered everywhere. What’s the Senate to do?

This is dereliction of the Senate’s duty — and it is now up to senators who know better, who prize the dignity and duty of their chamber, to demonstrate that they are indeed something more than partisan tools.

It’s nice that the Times mirrors my admonition, that it’s time for adults to take charge, but the FBI performed background checks no less than six times and came up with no taint at all. And the Times knows that they can’t call for a criminal investigation, as that’s beyond the FBI’s purview, and more to the point, none of the accusers have made a criminal complaint against Kavanaugh. They could have. They should have. They never did. Even though it may be understandable why they didn’t, the fact remains that they didn’t. Excuses do not prove guilt.

There is a possibility that in a few hours, a hearing will be reopened and a witness will testify. And some of us will watch. It’s possible that the hearing will occur and that there will be a Perry Mason moment where a witness breaks down, admits they’re failing and the issue, at least one of the issues anyway, will be resolved. But this is highly unlikely.

Senate hearings are not trials. There is little need to explain this to trial lawyers. None of the rules or processes apply, and there is nothing about them designed to resolve disputed facts. The basic concepts apply, much as they apply to our way of considering any disputed allegations, any accusations, but not as rules to be enforced. There is no “presumption of innocence,” though the reasons for the presumption remain as valid as ever. There are no rules of evidence, no judge to sustain an objective to a compound question (which is a kind way of saying a 20-minute speech alleging wild claims and devoid of any question at all) or calls for speculation and hearsay.

It’s not a trial, which means that the hearing of accusations, and to the extent possible, the scrutiny that will be applied, is all just a goofy game. Whether it’s as goofy as the facile trust in the FBI to do its voodoo this time, even if it failed the last six, is a personal problem, but it’s all goofy. To believe otherwise is to show your bias. There’s no resolution here. A Senate hearing was never constructed to be a trial. It won’t be a trial. It shouldn’t be a trial.

The problem faced is that there are accusations of criminal conduct, increasing in numbers in proportion to its decrease in credibility, that are now “out there.” My position after Christine Blasey Ford came forward was that the Senate Judiciary Committee had no choice but to reopen the hearing, to deal with the allegations. Judge Kopf disagreed, and took me to task.

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.

Judge Kopf was right. I was wrong. We are now stuck in a hole from which there is no escape. Whether it’s one accusation or a dozen (think the highly-respect legal theorist, Nancy Grace’s, favorite argument, “where there’s smoke, there’s fire.”), it’s too late. And there are no rules by which this game is to be played that will allow us to reach a national consensus or a national catharsis. This isn’t about being a slave to process, but about the consequences of the absence of process.

The hearing has been analogized to a “job interview,” mostly for the sake of distinguishing it from a criminal trial, which it most assuredly is not. The analogy is flawed, however. While Brett Kavanaugh has the burden of persuading the Senate that he deserves to be confirmed, decades old accusations don’t mysteriously appear when one seeks the position of assistant manager at Dairy Queen. The tacit implication is rather than risk a rapist, even if unproven, on the Court, take a pass and move on to another nominee. To some, this seems like prudence. To others, this is a precedent that undermines the institution.

When faced with a morass of problems for which there is no viable solution, basic process provides a rock in the storm, a foundation created over centuries upon which we can address even the wildest of situations. The resolution of criminal accusations are properly resolved by timely criminal trials, not by political shows played out for public consumption that were never intended, never designed, to serve this function.

Either the accusations (one, some or all) are true or they’re not. Our society has determined that the forum to decide such accusations is a criminal trial. That the accusers have chosen not to go that route isn’t Kavanaugh’s fault, but theirs, valid excuses notwithstanding. Having failed to bring their accusations to the only possible forum where they could be resolved does not mean they get a belated second shot in a forum so utterly ill-suited to the resolution as a Senate hearing. Not even if you really, really hate Brett Kavanaugh, or really, really believe the “victims” because you just do.

There will be show put on today and no one’s mind will be changed and no fact will be decided. Kavanaugh will be tainted by these accusations no matter what. No one will be saved. This is the worst possible outcome for everyone.

28 thoughts on “The Worst Possible Forum

  1. Skink

    “During the last 60 days I have been engaged in the task of constructing an administration…. I have been guided by the standard John Winthrop set before his shipmates on the flagship Arebella 331 years ago, as they, too, faced the task of building a government on a new and perilous frontier. ‘We must always consider,’ he said, ‘that we shall be as a city upon a hill—the eyes of all people are upon us.’ Today the eyes of all people are truly upon us—and our governments, in every branch, at every level, national, State, and local, must be as a city upon a hill—constructed and inhabited by men aware of their grave trust and their great responsibilities.” JFK, 1961.

    There’s been a whole lot of forgetting about responsibility and trust to get to this shit parade.

  2. delurking

    The elections this year will be fun. We should start a pool on the percentage of candidates that are accused of sexual impropriety in the month before the election.

      1. B. McLeod

        On that note, Internet reports are now circulating alleging that Abraham Lincoln groped Ruth Bader Ginsburg in 1862. Lincoln has neither denied the allegations nor offered any apology, so it is obvious that the “Lincoln Memorial” will need to be renamed, and a host of statues will be coming down. “You can fool some of the people some of the time,” but not forever, it would seem.

  3. Jay

    What a confused mess this post is. You have somehow declared that rape accusations should only be made at a criminal trial. You have correctly noted we won’t ever know the truth about kavanaugh. But you insist that our “process” will get us through, though it would place a possible rapist on the court. Moreover that same process has handled this same situation before with a hearing that you now protest. Here’s the reality. You have come to recognize that with multiple women coming forward to hearing will remove the stench here. But you can’t bring yourself to say it’s time for kavanaugh to withdraw.

      1. Black Bellamy

        Only an FBI investigation can decide this. Mr. Greenfield, I ask you this before the entire nation, would you be willing to ask the White House for an FBI investigation into your original post?

        THIS IS A SIMPLE YES OR NO QUESTION MR. GREENFIELD, A SIMPLE YES OR NO!

    1. OtherJay

      Jay, you are either being purposefully ignorant to support your argument, or you are painfully ignorant on the vetting process that has already taken place. You choose to ignore the steps taken by the alleged victims in this case and blindly believe whatever is needed to stop this confirmation.

      Gorsuch got screwed, and what you are suggesting is nothing more than tit for tat. Stop being dishonest and admit it, stop hiding behind sexual assault victims in your quest to deny a conservative a seat on the SC. Your words here are just as inflammatory and dishonest as kamala harris.

      No good will come of this shitshow.

    2. PAV

      Let a woman point and cry, “rape”, then string the man up just on her say so? We’ve done that before as a nation and repudiated it. Keep your lynch rope.

  4. Pedantic Grammar Police

    Maybe this is a good thing. Maybe we will begin to notice that our “government” is nothing but a TV show. Then we can stop upsetting ourselves and just enjoy the show. It is quite a show!

  5. Patrick Maupin

    “is a personal problem, but it’s all goofy.”

    Your honor, I didn’t say Minnie was crazy. I said she was fucking Goofy!

    The emboldening of batshit-crazy is a bad thing, but shifts in society have lately also apparently emboldened true victims by changing their personal cost/benefit analyses about coming forward. Interesting times are upon us. How many of us would have thought, five years ago, that Bill Cosby would be heading to prison?

    In a “normal” time, whatever that is, Judge Kopf would have been absolutely right about 30-year old accusations — too little, too late (and too self-serving). We should continually strive to achieve that normalcy, and in the best-case, the current climate may be a transition to a world where more true victims feel comfortable coming forward in a timely fashion. If only the pendulum would stop there; we are possibly at a dangerous inflection point where we risk criminalizing more and more normal interactions between the sexes.

    In this abnormal time, what sane politician wouldn’t at least give lip service to hearing the purported victims out? The chance of a credible, actionable criminal accusation against Kavanaugh appears tiny, but (especially after Cosby) the risk of assuming it is zero carries with it the far greater risk of being seen to be an unfeeling, uncaring tool of the patriarchy.

  6. B. McLeod

    Our politics have fallen into fanaticism because each of the “major parties” insists on coddling its most extremist, splinter elements, lest some slender voting margin in some contest be adversely impacted by alienating a few nutcases.

    Once unverifiable accusers are paraded in, this “hearing” becomes a mockery of due process. The nominee is in a fishbowl, while the accusers are allowed to selectively disclose or conceal for their “privacy” whatever they wish. Ford, for example, preemptively announced she will not disclose medical records. Hence, despite public references to a history of “therapy,” the committee will remain in the dark as to the extent of her mental history, including whether it includes any history of paranoid and delusional perceptions. If accusers are going to come forward, they should come subject to the same, unlimited scrutiny as the nominee, fully subject to examination on any facet of their private life and history that may have a bearing on the issue of their credibility. The error of negotiating special, kid-glove conditions for their “testimony” renders the entire exercise suspect and ludicrous.

    1. SHG Post author

      Maybe the fault is that reasonable people to the left and right, but still close enough to center to not hate their enemies, aren’t willing to stand up and tell the fringes to shut up already.

      1. Kathleen Casey

        I have been telling fringe dwellers to knock it off mainly when they tell me to knock it off. As you know it escalates when I dig in my heels and they require a lot of time drawing stick figures to help the reasons sink in. Because I’m right, and they’re not.

        You switched captchas, and I’m not a fan.

  7. John Barlycorn

    Halftime!!!

    Oh-uh…. looks like Chuck, Orrin, Lindsey, John, Michael, Ted, Ben, Jeff, Mike, Thom, and John need a beer. Forever more to be known as the “I only had one beer boys”

    Rumor has it they are under the bleachers as we speak pondering Senate Rule 27B-6 and how to introduce fraternal immunity.

    It is looking like Brett better bring a keg or he is gonna get teased and might even have to leave the party early.

    P.S. I got fifty bucks says Lindsey will cry before they day is out. If he doesn’t do it on national TV, he won’t make it 5 minutes in Brett’s chambers during the after hours party,

      1. John Barleycorn

        Kamala, how many times do I have to ask you to keep the comment section on point?

        Cheers to Brett! He not only brought the keg, he didn’t even let one of his salty tears fall into his own solo cup. And that in itself is a pretty tall feat considering he damn near broke the second commandment while opining on his reverence of barley pop.

        And I fucking guarantee you Lindsley is gonna cry like a baby at the after hours party after all that sanctimonious furry he unleashed today after he decided to go off script and threw the R surrogate to the sidelines to protect himself from forever more being known as one of the “I only had one beer boys”.

        P.S. Sweden was awesome. State owned casinos are a trip and the zander, char, and pike fishing was outstanding. How was your trip, did you have any fun?

  8. Nemo

    “Where there’s smoke, there’s fire.”? It appears that Ms. Grace has never rented a smoke machine.

    Regards,

    Nemo

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