In Summary

  Kavanaugh did what he is accused of doing Kavanaugh did not do what he is accused of doing
Kavanaugh is confirmed This would be a great injustice, would call every decision in which Justice Kavanaugh participates into question, and could throw the Supreme Court itself into disrepute. This would be a just outcome and the only alternative in which Kavanaugh could reclaim his good name, at least among those of good will. Note: I recognize that there are some who would not consider any Trump nominee being approved by the Senate as a just outcome.
Kavanaugh is not confirmed This would be a just outcome which would preserve the repute of the Court. This would be a great injustice, would heighten political hostilities, and provide a roadmap for making it hard or impossible to confirm any future nominee.

Does that about cover it?

18 comments… add one
  • PD Shaw Link

    As someone who thinks whether or not Kavanaugh did it or not is almost certainly unknowable, I feel this chart puts me in the cross-hairs.

  • steve Link

    Bottom right corner not quite correct. It won’t really affect things very much. All confirmations of late have been contentious. They are not going to get better until our politics get better. Since you only need 51 votes now, all confirmations will just be power politics. If the GOP retains the Senate after the midterms they will just pick another judge to make abortion illegal. If they lose we get to find out if the Dems follow the McConnell precedent and delay for 2 years.


  • I’ve tried to explain this before without much success. That Elena Kagan and Sonia Sotomayor were confirmed at all largely refutes the position you’re staking out. In order for their nominations to avoid filibuster, they needed bipartisan support. A handful of Republican senators voting for confirmation, enough to avoid a filibuster, doesn’t just indicate the collegiality of those senators. It strongly suggests that the leadership favored confirmation and there were probably many other Republicans who would have voted to confirm but were able to avoid such a vote for political reasons using the strategy that was employed.

  • Guarneri Link

    Well, Dave got there first. And as noted earlier, Ginsburg was 97-3. Why do you just come here and sling dumb shit, Steve? I don’t recall any Dem being smeared as a lesbian pedophile, racist etc. this is now SOP for Democrats, in campaigns and confirmations. Who do you think you are fooling?

  • jan Link

    Further discussion on Elana Kagan’s confirmation process is the sparseness of judicial decisions rendered by her (a lack of rulings showing her legal thinking/judgment), as well as Obama exerting executive privilege in denying any of her papers as solicitor general to be released to the judiciary committee. In a Lindsey Graham interview he brought all this up, including that while his ideology didn’t match her’s, being she was in line with the ideology of President Obama, he voted for her anyway.

    IMO, the dems have been far more historically partisan and lockstep in their obstruction than the republicans. In fact, when the R’s have dug in, such as implementing the “nuclear option” on the selection of nominees for the SCOTUS, it was only following Reid’s implementation of it to easily get Obama’s nominees through to the DC Circuit. This has been the case in past Congresses, where the dems dragged their feet on Bush’s judicial nominees, cuing the R’s to do the same when Obama took office, which then led to Reid going for his own nuclear option action. These increasingly aggressive Congressional tactics, though, seem to be generated by the dems first, and then copied by the R’s later on. This leads me to to wonder if the next democrat president will get the same treatment, by congressional republicans, in getting his/her appointments approved, by doing what the dems have done to this administration — using every delaying means possible to drag out the process, leaving vital government positions vacant for literally a year plus???

    Regarding Kavanaugh’s fate, I think whatever the outcome, the shrill hatred of the dems will not cease nor be satisfied. Their behavior has become nothing short of insanely contrary and detrimental to how government is supposed to function in this country. As for Kavanaugh, himself, his reputation will always be suspect, based upon sleazy claims about a long ago, unreported high school incident, with no concrete date, place or even a rational retelling of events being offered by the accuser. Frankly, the current insinuations cast upon this judicial process appears to be a remake of the Duke-Lacrosse media story, involving inconsistencies in a woman’s accusations that nonetheless resulted in the suspension and smearing of an entire team’s reputation, ensnaring them in the same web as Kavanaugh finds himself in — being immediately deemed guilty, without any tangible evidence, because it involves a woman’s word against a man’s.  This is not equal due process, by any stretch of logic,  but rather seems more demonstrative of gender inequality, where a women’s veracity appears to have the upper hand, especially when it serves a political purpose, over a man’s.

  • steve Link

    “That Elena Kagan and Sonia Sotomayor were confirmed at all largely refutes the position you’re staking out. ”

    And Roberts and Alito were confirmed, needing support from the other side, or at least a willingness not to use the filibuster, the same as Kagan and Sotomayor. But note that they were no longer 97-3 votes. Roberts had 22 votes against him. Alito 42 and Kagan and Sotomayor in the 30s. The trend was away from congenial votes that went overwhelmingly in favor of the nominee. “Sling dumb shit”? Nope, it just looks like I am the only one who bothers to look at the actual numbers and facts. (Pretty funny with Dave just having a piece about knowing the facts.) Then McConnell went and took the steps that changed everything forever. He got rid of the filibuster for SCOTUS and he flat out denied a vote for someone. In the escalating war over SCOTUS, and I am not particularly interested in assigning blame on who started it, those acts guaranteed no more 97-3 votes. (Of course you forget that the vote for Kennedy was 97-0. Who would have guessed that no Democrat would vote against a GOP nominee. Certainly no one writing here.)

    So let’s try again, and this sometime try using some facts, which will be very difficult for Drew and jan, but just try. Republicans used to get their nominees through with zero (0) votes against them. Dems used to get theirs through with 3 against them. Our politics became more partisan and then, go check those numbers if you want, we progressed to large numbers voting against a nominee from the other party. Then we took the larger steps of eliminating the filibuster and finally not even having hearings or a vote on someone. NOW, go ahead and tell me how things could POSSIBLY be any worse if Kavanaugh is not confirmed. We already know that the GOP won’t confirm a Democrat nominee if they control the Senate. I think it is only a matter of time (meaning whenever the Dems control the Senate and the GOP has a nominee) until we find out that the Dems will now do the same thing.

    If Kavanaugh is not confirmed and the GOP retains the Senate, they will just nominate someone else and still control the SCOTUS. If they lose control of the Senate the Dems won’t confirm a GOP nominee, but that was built in with McConnell’s actions, not because of the current situation. Once McConnell did what he did, it was much pretty much guaranteed that from now on you only get a SCOTUS nominee confirmed if you control both the Senate and POTUS.


  • CuriousOnlooker Link

    Here is a brief history of the Judicial Wars.

    1968 – Fortas is rejected as Chief Justice. Storm Thurmond had shown other senators Pornography that Fortas had written were protected by the First Amendment. He may have taking bribes as well.

    1969 – Clement Haynsworth was rejected for the Supreme Court after accusations he was a segregationist; mostly it was revenge for Fortas.

    1969 – Harrold Carswell was rejected for the Supreme Court for similar reasons to Haynsworth

    1987 – Robert Bork was rejected for the Supreme Court; accused of being too ideologically extreme

    1989 – Douglas Ginsburg is rejected for the Supreme Court for admitting to using marijuana recreationally (how ironic today)

    1991 – Clarence Thomas barely gets confirmed after accused of sexual hassassment

    2007 – Harriet Myers withdraws due to concerns about her lack of knowledge in law and general concerns from the President’s party.

    2016 – Merrick Garland is never voted on

    2018 – Brett Kavanaugh is accused of committing sexual assault as a teenager

    Its gone on for so long that few people remember when it started. I presume that’s why Bret Stephens wrote the Republic will survive, but someday its going to cause problems.

  • Twenty years elapsed between Fortas and Bork. There was no slippery slope, no connection between the incidents; no progression. And the opposition to Fortas wasn’t ideological; it was ethical. Fortas had a substantial list of dicey choices.

  • Andy Link

    When I said in another thread that my primary concern was about the legitimacy of the process and the court, I was specifically talking about the upper-left and lower-right quadrants. And, in a prisoner’s dilemma sort of way, it really feels at this point that one of those two “bad” quadrants is what will come pass.

    Since I have zero stake or partisan interest in whether Kavanaugh gets nominated or not, I find myself feeling like PD’s comment above. The truth appears to be unknowable.

    It doesn’t appear to me that Ms. Ford has any surprises in store – here legal team is, IMO, giving her some bizarre advice. To me, it only makes sense as a strategy with the goal to ultimately not testify but lay the political blame at the feet of GoP for that failure. And given how stupid the GoP is, it’s likely to work.

  • Andy Link

    confirmed, not nominated. Apologies for the many typos.

  • CuriousOnlooker Link

    You would be among the ones who recall that time.

    I agree Fortas had serious ethical issues, and Carswell was guilty of voicing support of segregation.

    But no doubt some of the opposition to those justices was driven by the same reasons that drive people to destroy anyone nominated by an opposing Party’s president. And once the precedent was set….

  • In general I hold to the quaint notion that in the absence of disqualifying offenses the Senate should confirm a president’s Supreme Court and cabinet appointments. Said another way Garland should have been confirmed but that doesn’t justify opposition to Kavanaugh in revenge. In Kavanaugh’s case the accusations against him are sufficiently serious that, if true, they are disqualifying.

    But if they’re not true they’re ideologically grounded character assassination. It’s important to know which it is and I don’t honestly see any way for that we can.

  • Modulo Myself Link

    It seems crazy to me that a person with Ford’s life–comfortable, a husband and kids–would make up this story to get Kavanaugh after more than thirty years. Could she by lying? Sure. But there’s an enormous why attached to this and the Republicans really don’t seem to be putting out reasons for why she would be lying. Being a liberal is not going to cut it. It’s insane to do what she’s doing if she’s lying. And that doppelganger theory which was actually put out there seems to me to be a tacit admission that the right believes something happened, but it was with a double and not the real Brett. It was a deranged attempt to make this all go away. Kavanaugh, after all, has an obvious reason to lie.

  • CuriousOnlooker Link

    Well there is the 4th witness, a girl. If she’s still alive maybe its worth having the senate committee talk to her (maybe even subpeona her?). If not, then its the recollections of Ms Ford, Mr Kavanaugh, Mr Judge, and Mr Smyth.

    The question is not whether she purposely made up a story (telling a falsehood to intentionally deceive others). But she could be mixing up the memory with some other memory or forgetting some crucial details. Memory is fallible — it changes every-time we recall it.
    Incentives can be twisted around; Ms Ford has had every incentive to feel more sure about what she recalls then is really the case since she sent her letter to her representative.

  • steve Link

    “In general I hold to the quaint notion that in the absence of disqualifying offenses the Senate should confirm a president’s Supreme Court and cabinet appointments. Said another way Garland should have been confirmed but that doesn’t justify opposition to Kavanaugh in revenge.”

    People forget that in Bork’s case, his ethics and integrity were in question, which is at least partially why 6 Republicans voted against him. When Nixon tried to fire Cox, Richardson and Ruckelshaus (sp?) both resigned rather than fire him. Bork did the deed. Then when he was rejected by the Judicial committee he still got a vote. Kennedy was the replacement nominee and there were no votes against him. (As I recall, Bork said in his book that he was promised a seat on the court if he fired Cox.)

    Doesn’t justify opposition in revenge? Do you really think that McConnell would not do it again? So game this out. The GOP never allows a Dem nominee when they have the power to stop it. The Dems play by the rules as you suggest. What happens? Remember that McConnell did this and there was no, nada, zip political price paid for what he did at the polls. Also remember that these are lifetime appointments, and we are talking about people around 50 years old. Seriously, how do you put this genie back in the bottle? If you can deny a nominee even a vote, then win the following election, why wouldn’t you do that all of the time? (And clearly by “you” I don’t mean anyone on this blog, but our elected Senators.)


  • steve Link

    “But if they’re not true ”

    I don’t think we will ever know for sure. I suspect that there is probably a bit of truth on both sides. The key is that you had kids drinking. Most likely no one remembers things perfectly.


  • Jan Link

    A third witness, Leland Keyser, has come forth and basically sides with Kavanaugh’s version, even though she is a lifelong friend of Ford. This follows Patrick Smyth (PJ) & Mark Judge who have both discounted what Ford is insinuating happened, saying Kavanaugh wasn’t at any such party. No one has collaborated Ford’s weak story.

    Why is this Inquisition still going on????

  • Jan Link

    In essence Ford identified 5 people at the party she alleges her victimization took place – the 3 people named in the above post, Kavanaugh and herself. 4 of those named denied her take on the event. She is the only one saying Kavanaugh was there & that he behaved in the way she described.

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