Although I don’t agree with the tone of their editorial, I agree with the assessment of the editors of the New York Times about the decision of the Senate Judiciary Committee to conduct hearings on the allegations about Supreme Court nominee Brett Kavanaugh:
The Senate Judiciary Committee is right to reopen hearings on Brett Kavanaugh’s confirmation after a claim of sexual assault.
The Senate is a political institution not a judicial one and it is politically necessary, for the sake of the Senate, Republicans, Brett Kavanaugh, and his accuser that the Committee be seen to be taking the allegations seriously.
As to what happens then, as I noted yesterday, much depends on Judge Kavanaugh’s temperament, about which I know nothing.
The editors of the Washington Post have a more tempered response:
The FBI should interview all relevant players and look into the extent to which any witnesses can corroborate Ms. Ford’s account or Mr. Kavanaugh’s denial.
The Judiciary Committee should then hold a hearing. Ms. Ford’s lawyer has said Ms. Ford is willing to testify, and so is the nominee. Monday night Senate officials said such a hearing would take place next Monday, which might be fine — but only if the FBI investigation is complete. The bureau should be given such time as it needs.
The shortcoming of this suggestion is that the FBI has already had months to investigate Judge Kavanaugh and it gave him a clean bill of health. Merely reopening the FBI’s investigation should call either the FBI’s, Sen. Feinstein’s, Judge Kavanaugh’s, or his accuser’s probity into question or possibly all four.
Any FBI investigation should be highly focused. It should concentrate on a single question: is there any independent corroborating evidence for the accuser’s claims? There should be brief Senate Judiciary Committee hearings, a public spectacle should not be allowed, and, in the absence of corroborating evidence, Judge Kavanaugh’s nomination should be brought up for a vote. Let the Senate decide.
The editors of the Wall Street Journal, on the other hand, favor a more combative approach:
GOP Senators should understand that the political cost of defeating Mr. Kavanaugh will likely include the loss of the Senate. Democrats are already motivated to vote against Donald Trump, and if Republicans panic now their own voters will rightly be furious. They would be letting Democrats get away with the same dirty trick they tried and failed to pull off against Clarence Thomas.
It would also be a serious injustice to a man who has by all accounts other than Ms. Ford’s led a life of respect for women and the law. Every #MeToo miscreant is a repeat offender. The accusation against Mr. Kavanaugh is behavior manifested nowhere else in his life.
No one, including Donald Trump, needs to attack Ms. Ford. She believes what she believes. This is not he said-she said. This is a case of an alleged teenage encounter, partially recalled 30 years later without corroboration, and brought forward to ruin Mr. Kavanaugh’s reputation for partisan purposes.
Letting an accusation that is this old, this unsubstantiated and this procedurally irregular defeat Mr. Kavanaugh would also mean weaponizing every sexual assault allegation no matter the evidence. It will tarnish the #MeToo cause with the smear of partisanship, and it will unleash even greater polarizing furies.
Sadly, that horse has already exited the barn. If there is a way of taking accusers seriously while not tarnishing the reputations and blighting the lives of the innocent, I don’t see it.
Under the ancient Chinese system of jurisprudence those who accused others of crimes falsely were subjected to the punishments that would have applied to the accused had they been guilty. I don’t think we’re capable of taking such draconian steps. For one thing increasing the risks involved in making accusations would be seen by many as an enormous step backwards.
The question for Kavanaugh is not of temperament but of incentives. If he does not fight for his honor he has nothing; if he is convicted of attempted rape in the court of public opinion there is no life to live, no career to go on.
Of course; for Ms Ford look at her incentives. She will be forever labeled the “false accuser†in the court of public opinion if Kavanaugh gets confirmed.
That’s the dilemma; there is no honorable way for everyone out of this.
Given the nature of human memory; it’s possible everyone involved is recalling truthfully (and not because they were too drunk to remember) while the Truth will never be known.
“Of course; for Ms Ford look at her incentives. She will be forever labeled the “false accuser†in the court of public opinion if Kavanaugh gets confirmed.”
Not on the left, she’ll enjoy a lifetime of speaking engagements at welcoming college campi.
Still plenty out there who believe Tawna Brawley, the Duke Lacrosse team used white priviledge, etc.
Agree there should be hearings. The FBI should be able to present a report by Monday, interview witness, chase any leads for witnesses, etc. A few things I ponder, is this a case of “recovered” memories which are prone to manipulation, and whether the activities of an adolescent should forever tar him as an adult.
You’ve drawn up a nice white paper on how the process should move forward, Dave. But it hasn’t a chance in hell of happening. The Democrats will see to that.
A political decision has been made on process, in deference to the notion that this is a matter of public opinion not law. So be it. But as I noted in the last thread, there is no diligence to be had. There is no real adjudication forthcoming. There is simply no raw material to serve as a basis, although I’m waiting for the mystery witness to suddenly materialize………like Hillary’s lost billing records. It will all be speculation and partisan motives. This will be a pure propaganda and behind the scenes arm twisting contest.
I’m not sure what “independent corroborating evidence” would exist, so searching for it would seem to be an open-ended endeavor. There does not appear to be any physical evidence. Memories are not reliable.
So what we would be left with is trying to find circumstantial evidence that falsifies all or some of a memory. Ford has given almost no details about the events, but there is already contradictory evidence from the therapist notes. The FBI can try to take a statement or review the entirety of the notes, but would presumably need a waiver from Ford. I would expect the therapist to support his/her notes because therapists take their notes very seriously, but that doesn’t necessarily mean that Ford may not have mispoken. The FBI can also interview her husband about what she told him as well, which again doesn’t really independently corroborate her story, it just serves as a means to potentially falsify portions of her story if it has changed over time.
Kavanaugh, like most defendants, doesn’t have a story because he says he didn’t do it. He cannot provide an alibi because its not known when or where it happened. Some have suggested that his claim (given to Grassley I believe) that he was never at a party like that is a statement that can be falsified and thus the failure to falsify it makes his position credible. But it’s just as vague of a statement as Ford’s description.
Kavenaugh’s friend independently corroborates Kavanugh’s defense, though he is essentially depicted as a rape co-conspirator and would be expected to do so.
I also don’t think live testimony will give rise to reliable credibility determinations. If this were a court of law, people with pre-existing views on Kavanaugh’s appointment would be excluded from the decisionmaking. The court of public opinion is clearly biased on that account.
Kavanaugh needs to be able to describe his life at that time in a way that incorporates what we know. If his friend Judge wrote that women should be beaten like a gong in their yearbook, what was his reaction? What did he do? Similarly, was he drinking until he blacked out? If he gets up there and denies ever hearing people make rape jokes, he’s going to like a liar.
He’s seemed to have perjured himself once with this Kosinski stuff, and Ford–who has zero reason outside of being nuts–to lie seems credible. She told people about this happening. Why would she lie?
It’s also possible that he was such a dork that he was talked into this by Judge, who is beyond creepy, and then vowed never to do it again, and then, like lots of people, chose to deny to himself that he did it. In which case, he’s probably screwed. Although who knows?
As I said yesterday, there’s no way to empirically determine what happened.
I also really like all the points that PD brought up.
Since the context is political, highly partisan and viewed as existential by each side, I don’t expect much movement and Kavanaugh’s fate will be decided on the perceptions of Collins and Murkowski, who seem to be the only two Senators who didn’t make up their mind months ago.