At Atlantic Andrew Cragie asks several questions without answering them or, indeed, even attempting to answer them:
In a likely redux of the 1991 Clarence Thomas-Anita Hill hearings, Washington appears headed for dramatic public testimony by Supreme Court nominee Brett Kavanaugh and the woman who’s accused him of sexual assault when they were teens, research psychologist Christine Blasey Ford. After negotiations over the weekend with Ford’s lawyers, Judiciary Committee Republicans announced on Sunday afternoon that a hearing was set for 10 a.m. Thursday.
But what should that hearing look like? How can senators determine what happened at a high school house party in the 1980s? How should they treat a private citizen who has come forward with allegations of sexual misconduct against a man up for a lifetime appointment to the nation’s highest court? How should they treat the nominee who categorically denies assaulting anyone, ever? What should be the standard of proof?
and continues by quoting Washington Sen. Patty Murray:
“What a horrible message to young girls today. What a horrible message to young men today, that they can get away with this. Let’s get this right.â€
But what does that mean? As I said in an earlier post, confirming someone who had acted as Dr. Ford has accused Judge Kavanaugh would be a grave injustice. It would also be a grave injustice to treat an innocent man as though he were guilty on the basis of an uncorroborated accusation.
Statistical incidence tells us nothing about individual cases. Acting on that basis is a sin—the sin of stereotyping.
At this point, I’d be surprised if the testimony happens.
Both sides apparently knew there was another accusation about to come out – this explains their actions over the past week.
“Statistical incidence tells us nothing about individual cases. Acting on that basis is a sin—the sin of stereotyping.”
Mostly agree. While the research shows that Ford does not match up with the profile of those who lie about sexual assault, it doesn’t mean she is telling the truth either. What it does tell us, I think, is that she should not be dismissed out of hand.
What is normally done when there is an issue of a crime against someone and there are no witnesses? I have to think that there is plenty of precedent for handling something like this. What is normally done in job hiring situations? (I know what I do but wonder what most people do.)
Steve
I haven’t. When I say that I don’t know that’s what I mean.
I agree with every word of that.
If there is no physical evidence and no testimonial evidence other than the accuser and accused, the case should be dismissed because the charges must be proved beyond reasonable doubt and in the case of one person’s word against another there is always or nearly always reasonable doubt.
However, we’re not talking about a criminal trial and the standards aren’t the same as in a criminal trial (as has been said ad nauseam by those who oppose Kavanaugh’s appointment with or without the accusations). No one is really sure what the standards should be.
And this isn’t much like any hiring situation I’ve ever encountered. Kavanaugh’s career as a judge is essentially over. If he’s not confirmed on the grounds that he may be guilty of something reprehensible, I don’t see how he can be allowed to remain on the appellate court.
I don’t know about your hiring situations but mine have never been litigated in the national media.
In my hiring situation, I consider every person I hire as a possible defendant. Because of that, I tend to be pretty cautious. I have had false accusations brought against employees. We have temporarily suspended them even though I didn’t believe the complaints. Felt bad about it, but then we have a lot of responsibility for high risk patients.
My bet is that if he is not confirmed, Kavanaugh remains as a judge. I think it is OK to have different standards for firing someone vs naming them to the SCOTUS.
Steve
When Illinois organized a commission to advise on why so many convicts on death row were being released, one of the main findings regarded the unreliability of eye-witness testimony. One of the proposals was to prevent death penalty convictions based on a single eye witness.(*) The proposal, though limited to death penalty cases, was based upon an issue common to all criminal cases, and would have probably eliminated many sex crimes not supported by physical evidence.
(*) There were other proposals, such as enhancing defense access to DNA and other physical examinations, and expand the use of trial testimony from experts on the limitations of memory.
How so? Judges of the circuit courts of appeals are completely equivalent to Supreme Court justices within their circuits and it’s a lifetime appointment just as an appointment to the Supreme Court is. If he’s not fit to be a Supreme Court justice, he’s not fit to be an appellate court justice.
If he’s deemed not fit for the Supreme Court on moral/legal grounds, it’s incoherent to say that he should be able to remain an appellate court judge. I would say there would be a moral imperative to impeach him.
The only right thing is whether Kavanaugh withdraws or not; Ms Ford, Ms Ramirez, whoever Mr Avanetti represents, and Mr Kavanaugh still testify.
Since in effect this has become a trial by public opinion; they all should make their case.
I do subscribe they may all be recollecting to their best of their abilities – and the truth may not match any one person’s recollection.
“If he’s not fit to be a Supreme Court justice, he’s not fit to be an appellate court justice.”
Because the Democrats primarily care about keeping him off the SCOTUS. Once his nomination is sunk, interest in Kavanaugh’s history will disappear.
“It would also be a grave injustice to treat an innocent man as though he were guilty on the basis of an uncorroborated accusation.”
However how this event is being prosecuted is that Kavanaugh is guilty (accentuated by his gender), and has to somehow prove his innocence. This is the “new normal,” in the current day and age of women’s grievances against men, only accelerated by the “MeToo” movement.
This event, though, should be a wake-up call to all men how vulnerable they are to any and all accusations of impropriety towards a female — whether it’s a hug, a touch, a whistle, an off-color comment, unapproved look, or nothing at all, as long as the women deems what ever you did, or did not do, to be inappropriate. You can be a teacher, doctor, mail person, coach, or a stranger to be subjected to such a frailty in our evolving moral code dealing with what’s right and wrong in male and female interactions.
Furthermore, it appears to be irrelevant even should a person have witnesses testifying they were not present or involved in a claimed wrong-doing, as truth is solely based on what a woman says — or so says a female democrat senator from HI sitting on the judiciary committee.
It was reported today that Kavanaugh is not going to withdraw his nomination, and will instead defend the reputation that has been summarily shredded by undocumented accusations of sexual misconduct some three plus decades ago. I respect him for standing up for himself. Nonetheless, I think it will be an uphill task, in lieu of the unrelenting bias of the press mixed in with dems blinded by the possibility of regaining power. After all, it seems that truth to power has been greatly reduced in today’s the-ends-justify-the-means politics.
Curious: “the truth may not match any one person’s recollection”
I think there are a few key points in trying to harmonize different accounts here (if we choose to do so):
1) Intoxication. I don’t think we know if the accuser drank, but she claims the other witnesses were quite drunk. Intoxication impairs judgment and memory. According to the nightclub curve, the more drunk, the more funny things are and the more funny obnoxious things are.
2) Intentions. The allegations consist of two components, outwardly visible events and the intentions ascribed to Mr. K and Judge. She witnessed the former, but is not a mind-reader, so disregarding the latter leaves opens the possibility that the boys were goofing around, maybe did not realize how frightened she was, or maybe Judge realized how frightened she was becoming and actually is pushing K. off of her. Or perhaps Judge pushed K. onto Ford and K. is trying to scramble up, but unbalanced is perceived as pawing at her clothes and preventing her from breathing. I’m not all married to these hypotheticals, but there is a difference between what she perceives as happening with her senses and what she thinks is happening.
3. Memory. The boys don’t remember anything because they were too drunk, or the incident was just a goof and they never had reason to think about it again. Ford had the type of strange experience that her memory would tend to reinterpret over time in the process of recalling it and making sense of it. Google memory as game of telephone. Somewhat related, she describes the incident to her therapist as happening in her late teens, which conventionally wouldn’t mean 15 years old. Therapist usually pay close attention to age of the victim of sexual violence. Whether or not the basic accusation is true or not, it seems that she might have combined or reconstituted events in her mind.
This thing is really turning into an even bigger shit-show than I imagined.
I think the best course of action is to proceed with investigating these incidents. Call all the witnesses, get them to testify or submit formal statements, get the FBI involved. Find out what can be found out, then vote.
I don’t think either side wants this, but the GoP is in the driver’s seat, so they are the deciders.
Eunuchs for SCOTUS. Only serious eunuchs need apply.
“truth to power”
She is an unknown psychologist. He is a famous US appellate judge whose father was a judge, who already has a lifetime appointment to a federal court. Who has power?
“Once his nomination is sunk, interest in Kavanaugh’s history will disappear.”
Heck no. They will pursue him if they can to prove he was lying all along. However, I don’t see the Trump DOJ being that interested in chasing him, and I do see Trump wanting to be able to parade him around to demonstrate what the awful Democrats did. I think he will keep his job because there really won’t be any beyond a reasonable doubt information or testimony. You don’t need that to keep someone off the court, but I bet you do in order to fire someone off a federal court.
Steve
The one after another accusations of sexual misconduct being shot at Kavanaugh are completely and absolutely political in nature. The Democrats, having failed to halt Kavanaugh’s elevation to the Supreme Court through the normal legislative process, are now hurling crap against the wall, hoping some of it will stick. We are seeing a modern variation on the trials the First French Republic performed during the Great Terror. If the defendant cannot prove beyond the shadow of a doubt that any accusation is completely and totally false (which is impossible, since a negative can never be completely disproven), he must be guilty and guillotined. Another claim is that lack of evidence means that the guilty were just very good at covering their tracks or are able to suborn all witnesses to the crime. To quote Brian from the Monty Python Movie, ‘And what sort of chance does that give me?”
The only requirement for tenure with Judges is specified by the constitution; “good behaviorâ€, who decides, Congress only, the executive has no role.
In practice; most accusations against Federal judges are handled by the Judiciary itself; only the most serious cases are referred to Congress.
For confirmation; the requirement is the consent of the senate; which is whatever the majority of senators decide.
Perhaps one way to reform the confirmation progress for Judges is to make the President nominate 3 candidates for a position; whoever gets the most votes and a majority shall be confirmed. Gives the minority a say but not a veto. Gives the majority more choices then a straight up or down. And the right for a majority to absolutely turn down a Presidents choice.
The “power” component, in the Truth to power statement, has little to do with Kavanaugh’s position as a judge. Rather, power refers to the high powered, well-known democrat attorneys legally guiding Ford, spurring on her allegations and manipulating the faux hearing negotiations.. Add in the massive glut of media defending Ford, day in and day out, and basically Kavanaugh has become the David of the David and Goliath story, and is definitely the underdog in this contest seeking both truth and justice.
Also, should Kavanaugh not succeed in getting the votes needed for confirmation, these accusers will drop off the map, like they did in Moore’s senate bid. Whether or not Kavanaugh would be able to pick up his life and work on the DC Circuit is questionable.
Basically, he and his family have been thoroughly trashed, and it showed during the TV interview tonight on the stressed faces of him and his wife. Kavanaugh appeared to be both beaten down and kind of stunned that such lunacy was really taking place during what should be a seriously conducted confirmation process, instead of a an out-of-control hearing followed by allegations that are difficult to disprove, and thus susceptible to partisan grandstanding.
IMO, it has been a total sham!
“Rather, power refers to the high powered, well-known democrat attorneys legally guiding Ford”
The GOP doesn’t also have lawyers? Please. Let me think for a minute here. Hmmmmm. What does Kavanaugh do for a living? Let me go look that up. Well can’t see to remember, but he had dozens of (conservative ) lawyers writing in support of him, so maybe he is a paralegal or something? LOL
“Kavanaugh has become the David of the David and Goliath”
No. Kavanaugh is the powerful person, being supported by the majority party and by the POTUS. The only thing this woman has is popular opinion, which is what often supports someone when they are speaking truth to power. Her family is the one in hiding due to death threats.
” susceptible to partisan grandstanding.”
Ok, have to admit that I have NEVER, EVER, EVER seen a Republican politican grandstand before, so you win this one.
“Basically, he and his family have been thoroughly trashed,”
Lets just change this from he to she to give us an accurate picture. There are now thousands of claims going around that she was a slut in high school. In college. It either didn’t happen, or if it did she deserved it. She is being called a liar, as much or more than is Kavanaugh.
“Also, should Kavanaugh not succeed in getting the votes needed for confirmation, these accusers will drop off the map”
I really don’t understand why that matters. What should dMoore’s accusers have done after his election? Start their own TV show? Go into politics? The statute of limitations meant they couldn’t press charges. Seriously, what should they have done?
Steve
A fundamental question to ask is “Why did Ford feel compelled to bring this incident up, waiting 36 years to do so, at a point in this man’s life which would be the most damaging to him and probably to her too?’
Whoever (if it even happened) insulted and/or put hands on Ford were identified by her as juveniles, probably enebriated, and hardly equipped with risk aversion traits realized more as people mature and become adults. So, why would she find unleashng such a foolhearty episode be worthy of blanketing disruptive chaos on these confirmation proceedings, and on a man who has apparently lived an exemplary professional/personal life during his adult years?
Also, the backlash Ford is experiencing is derived mainly from her own actions and the decision to, IMO, dramatize what should be recognized more as an embarrassing memory involving youthful indiscretions. Furthermore, to call Ford a “survivor,” as many female Democrats have done deminishes the plight of any women who has been raped, beaten, violated way beyond what Ford has described as what happened to her. And, these women are the ones rising up, hostily challenging her real intentions of bringing such inflammatory but flimsy allegations at this point in time.
IOW, Ford is the one who orchestrated the timing of her charges, coupling it with a politically charged judicial nomination, targeting Kavanaugh and makng him more her victim than visa versa.
” and on a man who has apparently lived an exemplary professional/personal life during his adult years?”
As was true of so many Catholic priests. You would think we would realize by now that many, many people are afraid to step up with these accusations. Some people only do so when others step forward. Others when they see the person who harmed them become prominent in the news. This really isn’t the unusual, if you are paying attention.
“youthful indiscretions”
Good to know. I am going home tonight and tell my son it is perfectly OK to stick his dick in some girl’s face if he wants. Just an indiscretion.
“IOW, Ford is the one who orchestrated the timing of her charges”
No. It has been very well documented that she sent her accusation in a couple of months ago, but Feinstein sat on it for political effect. Now, go ahead and whine about that if you want, then explain how not even giving Garland a hearing was not political. I guess that was more speaking truth to power, or something?
Query- How do you know Kavanaugh is innocent? Seriously? Is it just that a nice looking conservative guy would never do something like this? You have not even heard the woman, but you have made up your mind.
Steve
Steve,
“How do you know Kavanaugh is innocent?”
Innocent of what — of being the guy who Ford said trapped her on a bed 36 years ago? That’s an allegation brought by her, with vague specificity as to date and place, and having absolutely no corroboration by any of the people she herself named as being at the party. So, IMO, that leaves a big hole called “no evidence” supporting her claim.
Furthermore, Christine Ford initiated these accusations in a way that put her in no perjury jeopardy. If she had presented her story directly to the Senate Judiciary Committee, the perjury charge would be enabled if her accusations proved to be untrue. Instead, she went through a secondary congress woman, giving her a pass on being legally held accountable no matter what the outcome was. Kavanaugh, OTOH, as well as the 3 alleged witnesses gave accounts, denying such an encounter ever occurred, directly to the proper committee making them legally liable for their statements. If their statements proved to be false, they would be facing legal repercussions. Kavanaugh would probably be disbarred.
So, the aspect of “innocence” is not under discussion, but rather which person has been able to provide a narrative consistent with the other people attending the party. Kavanaugh’s and 3 other statements were made subject to perjury — making their statements stronger and more believable than Ford’s singular, foggy, and belated recollections.