At the Wall Street Journal Alan Dershowitz states my views about the present trope among the Democratic leadership, that the “beyond reasonable doubt” isn’t the appropriate standard for assessing Brett Kavanaugh, pretty succinctly:
Until Judge Brett Kavanaugh was accused of horrible crimes—sexual assault, lewd conduct and even gang rape—his confirmation hearings could fairly, if not entirely accurately, be characterized as a “job interview.†The burden was on him to demonstrate his suitability to serve on the Supreme Court. He apparently met that burden in the eyes of a majority, a partisan one to be sure, and seemed on the way to getting the job.
But now everything has changed. So should the burden of persuasion. The behavior of which Judge Kavanaugh has been accused is so serious and devastating that it requires a high level of proof before forming the basis for his rejection. There is an enormous and dispositive difference between a candidate’s rejection on ideological grounds, as was the case with Robert Bork, and rejection on the ground that he has committed crimes warranting lifetime imprisonment rather than a lifetime appointment.
Being on the Supreme Court is a privilege, not a right. But being disqualified based on a false accusation of a crime would be a violation of the fundamental right to fairness. Some will argue that the issue of Judge Kavanaugh’s ideological and professional qualifications should be merged with the sexual allegations and that doubts should be resolved against a lifetime appointment.
In some cases that would be a plausible argument. But it is too late for that kind of nuanced approach now, because these accusations have received world-wide attention. Judge Kavanaugh is on trial for his life. At stake are his career, his family, his legacy and a reputation earned over many decades as a lawyer and judge.
What standard would Sens. Feinstein or Hirono propose? Preponderance of the evidence? Since Dr. Ford has presented no evidence other than testimony or hearsay while Judge Kavanaugh has presented his calendars, that won’t do the trick, either. The only standard I can see under which Sen. Hirono’s views prevail is the precautionary principle. I wonder if Sen. Hirono would survive such a standard. At this point based on her employing a Chinese spy for 20 years, Sen. Feinstein certainly wouldn’t.
The Democratic leadership is already pivoting towards the Catch-22 proposition that being outraged is a sign of guilt. Even the editors of the New York Times recognize that denial and outrage are precisely the way both guilty and innocent would respond to charges of the seriousness of those being leveled at Brett Kavanaugh.
I wish the Democrats would just say openly that they won’t vote to confirm Brett Kavanaugh under any circumstances.
The proceedings have acquired all the consequences of a legal proceeding at the insistence of partisans while having none of the protections of one.
Judge Kavanaugh has already noted his reputation is destroyed; his career opportunities whether in academia or private practice destroyed as if convicted. Demands are demanding an open FBI investigation of every accusation made; the AG of Maryland saying they will open a criminal investigation if a complaint is filed (which is an invitation to one); Democrats already saying they will go for Impeachment when they take control of Congress.
Yet look at the proceedings. Hearsay is permitted. Pressuring “jurors†like screaming at Mr Flake is counted as an act of virtue. The defendant is asked why he should not put himself in greater jeopardy with more investigations – if is he’s innocent; he has nothing to lose?
Kavanaugh should have said he already has lost much and he has no expectations any further investigation could be fair to him given the circus.
I thought PD explained it best. All you need to do is present enough evidence to convince 50 Senators. 51 if you don’t control POTUS. Those Senators can use whatever standards they choose.
I think the potential for real legal issues arise if his old roommate and his old party companions have their claims confirmed about his heavy drinking, which he denied at his hearing. If he was confirmed, should/ could he be impeached over lying. We certainly have precedent for impeachment over lying.
Steve
My main problem with the job interview trope is that it’s simply inaccurate. The Senate doesn’t hire anybody, that decision is made by the President. Typically, job interviewers look at numerous qualified candidates, and the best candidate might be the one with a marginal, perhaps superficial, distinction. Two candidates with essentially the same qualifications; the one with a large wart on his nose will probably not get hired. IOW, in the hiring context, decisionmaking can operate at such a low information threshold as to be a meaningless characterization if there are not alternative choices with which to compare.
Yes; that is the clearest example of the point I made.
First investigate if Kavanaugh committed sexual assualt; then let’s investigate all the witnesses; then let’s investigate if he drank. What next; let’s investigate what the word boof means. And then we go on until we find his crime.
By the way; Kavanaugh said he did get drunk; but he never got so drunk he passed out. None of the people who have come forward have said they observed or heard him blacked out.
If our standard for a Supreme Court justice is a teetotaler, then so be it.
The senate can set whatever their standard is; but we all know these proceedings are no longer about advise and consent. This is about the guilt of a man. Certainly the jeopardies involved are far graver then the mere rejection to the Supreme Court.
“What standard would Sens. Feinstein or Hirono propose.”
Stated: He breathes; he is a man; therefore he is guilty and unsuitable.
Unstated: He is a constitutionalist who might not let us legislate through the courts. He is therefore unsuitable.
“I wish the Democrats would just say openly that they won’t vote to confirm Brett Kavanaugh under any circumstances.”
They actually have said that. What’s happening now is a high-stakes battle to convince the handful of mostly Republican moderates to vote for or against him.
As Dave mentioned; Kavanaugh’s most serious crime was he was nominated by Pres Trump.
Kavanaugh is undeniably guilty of that crime; and it is a standard most would accept as consistent with advise and consent.
Instead what this has become…..
“I think the potential for real legal issues arise if his old roommate and his old party companions have their claims confirmed about his heavy drinking, which he denied at his hearing. If he was confirmed, should/ could he be impeached over lying. ”
I think that would be very hard to prove. I don’t recall Kavanaugh denied he had ever drunk heavily – he admitted that he had too many beers on occasion. What he has denied is blacking out or memory loss. I’m not sure what testimony a roommate, or anyone else, could give that would prove memory loss beyond hearsay. Furthermore, when asked if he has ever passed out, Kavanaugh said no, but he also said he often went to sleep afterward drinking because they were drinking in the evenings (working from my memory of his full testimony here). Again, I’m skeptical that the distinction between going to sleep and “passing out” could be proven as perjury based on 36-year-old recollections.
Same with the yearbook stuff, especially since several have already backed his claims there.
And then there’s the obvious problem of memory. I look back either at 1982 or the summer when I was 17 (between junior and senior year in high school) and I can remember hardly anything from that time. I’m not even sure about the girls I dated or didn’t date. I certainly don’t remember any instance of heavy drinking where I blacked out or even drank too much. It probably happened, but I can’t remember them. Not sure how anyone can get convicted for perjury over not remembering things from so long ago.
Another reminder that my life experience is different from that of many others. If pressed, I could probably produce detailed reconstructions of everything I did or said in, say, the summer of 1965 including reproducing conversations verbatim.
I don’t put that forward as a good thing. In many ways it’s a curse. Events of 20, 30, or 50 years ago are as vivid for me as yesterday’s are. On the other hand I have a sibling who probably doesn’t remember what she had for breakfast this morning. I don’t know whether it’s nature or nurture or a combination of both.
When I was in high school binge drinking was unheard of and very few of my classmates were sexually active. Certainly no one in my immediate circle was.
The standard Hirono and Feinstein want is ‘vote my way, always, every time, no matter how crazy or evil what I want is. Or you’re a (pick the -phobe or -ist of your preference) bigot. They worship O’Brien’s dictum ‘the purpose of power is power’. along ‘rules are for other people’ and ‘we are always and forevermore be on the right side of history’. In other words, little Gods.
I don’t remember many details from parties in my late teens/early 20s, except when really bad or good stuff happened. Wasn’t that much of a drinker either, but I find it hard to believe that many people have very good memories of events after heavy drinking.
Steve
NBC is running a story saying that Kavanaugh’s people were reaching out to his Yale classmates before the Ramirez story ran. One person was saying it goes as far as back as July, which puts a slight dent into his claim that he never heard of the allegation before the story ran. it also has someone claiming that at a wedding a decade ago, Ramirez kept as far away as she could from Kavanaugh.
re Senators: It was interesting that prior to the Ford hearing, Claire McCaskill said she would vote against Kavanaugh specifically due to disagreements unrelated to the sexual misconduct allegations (but instead about working families and against corporate interests).
She is up for re-election in the Fall and was being hammered earlier this year for voting against Gorsuch, and for a taped conversation in which she is heard saying: “There is a desire in the base of our party to take a scalp for Merrick Garland. I completely get it. So I am very comfortable voting against him.â€
I’m not shocked by that, but she clearly needs to find ways to appeal to moderates, so I thought she might vote for Kavanaugh. She may have figured that she cannot win any votes doing so at this point.
That she wanted to make sure her vote was not made in the context of the Ford testimony is interesting; it sounds like she thinks the cultural war aspects would not be helpful or were too unpredictable.
The initial polling appears mixed, if not negative:
http://thefederalist.com/2018/09/30/new-poll-shows-missouri-voters-rejecting-sen-mccaskill-opposing-kavanaugh/
Actually it’s the reverse. Ramirez was going through the circle of mutual friends looking for dirt and trying to find confirming witnesses well before her story became public. That’s how Kavanaugh found out. I recall the New Yorker article had Ms Ramirez stating this very fact.
Here is someone on twitter who actually bothered to look at the transcript where Kavanaugh talked about Ms Ramirez’s allegation.
https://twitter.com/ag_conservative/status/1046899910120017927?s=21