- The Brett Kavanaugh Supreme Court Confirmation Hearing
- Supreme Court Nominee Brett Kavanaugh on the Separation of Powers
- An FBI Investigation of Dr. Ford’s Accusations of Sexual Assault? Why Bother?
- American Democratic Values are Now Officially Meaningless
- The Screeching Mob, a.k.a. Kavanaugh Protesters
When the judge is the accused
(September 29, 2018) The process of the Supreme Court confirmation hearing for Brett Kavanaugh has been unprecedented. The Kavanaugh sexual assault hearing yesterday, about Dr. Ford’s accusations of sexual assault by Judge Kavanaugh while they were both in high school, was also unprecedented. There had been no FBI investigation beforehand. Then the Republican members of the Judiciary Committee wanted a female prosecutor whose specialty is sexual crimes to ask the questions for the Republican side. One reason might have been because they suddenly realized that in this situation, where they were going to ask questions of a woman about her alleged sexual attack as well as of the alleged attacker, being all men might not look so good. They said their reason was that this prosecutor was specialized in this field and would know how to ask the right questions. There’s definitely something to be said for that argument. They let the prosecutor ask the questions for the Republicans during Dr. Ford’s hearing, but once she began questioning Judge Kavanaugh, it didn’t take long for them to veer off their self-imposed process. They dumped her and took back their time so they could spend it saying what a disgrace this is, and how awful and unfair this all is for Judge Kavanaugh, instead of maybe getting answers to the relevant questions.
Kavanaugh said on Day Three (09-04-2018) of his Supreme Court confirmation hearing that he is a great believer in the process. His description of the judicial process, and why he puts so much importance on following a particular process truly impressed me. He gave it in answer to a question from Senator Flake (R-AZ) about the differences and similarities between the process on the circuit court and the Supreme Court. Here it is:
I think there are a lot of similarities to the Supreme Court in terms of the process. From my time clerking for Justice Kennedy, at least, my experience there and seeing how it works now. So, in basic terms, what I do, is I read the briefs very carefully. I have my clerks prepare binders — many, many binders — of all the cases I need to read, of all… I like to know the law review articles and treatises on point. I like to go back and see if there are any historical materials that might be … and they’re all in the binders.
Then I’ll talk about it with the clerks, I’ll have one clerk who’s handling it, but sometimes talk about it with all the clerks, about my tentative views. The judges, interestingly, do not talk about the case ahead of time with each other, and the reason for that is we each want to come into the oral argument having formed our own tentative approaches and questions and not having been influenced by maybe, well, this is what the other judge thinks and so that will subtly influence you, but if we come into the oral argument with three independent perspectives, the practice has been that’ll help us reach a more informed decision. Each of us will be prepared.
Then at the oral argument itself, it’s so important — we learn from the lawyers, but we also learn from each other at the oral argument, the questions… Its similar to the way this process works: you hear the questions of other senators and that sparks thoughts for you to ask questions and other senators to ask questions. So too for the judges.
Then we conference right after oral argument and we give our tentative views, and go around and debate and discuss, and it’s very collegial, and there’s a lot of fluidity in that discussion. It’s not as, here’s my position and that’s it. It’s never… for twelve years I’ve never been in a single conference where any judge has said anything like that. Rather it’s, here’s what I’m thinking, what are you thinking, and we go around and go in turns and then discuss it and reach a tentative resolution.
And then we write it up; one judge is assigned to draft up the opinion. And writes… That’s an intense process for me and, I think, for all judges, of draft after draft after draft. And, I’ve talked about that, to get it exactly right, I want it to be clear, I want it to be consistent with precedent, I don’t want… I want the losing party to think that they’ve gotten a fair shake. I want the affected parties to be able to understand it. To be as clear as possible. And that discipline of writing sometimes convinces you you might’ve gotten it wrong when you first were thinking about it, and sometimes you change 180 sometimes, but often you will just shift your views, but the writing is such a discipline. That’s an important…
The whole thing is a process with three judges — or nine on the Supreme Court — that is designed to make sure you get it right, and so the collective decision-making process, combined with the discipline of preparing, and the discipline of oral argument, the discipline of writing it up, — that’s why judges, when they come here, are very reluctant, when they get a hypothetical, to just give a one-off answer without going through that process. Process protects us as judges, it protects the people who are affected by our decisions. So, we are… we love process because we are used to process, and process, in our view, helps us make better, more informed decisions.
Wow, right? So then it’s more than a little strange that this man, who stands on following the process, and making sure he’s heard every side of the story, that he’s left no stone unturned, and who’s literally a master in the law, refuses to ask the president for an FBI investigation. Senator Harris (D-CA) was one of the very last to speak during yesterday’s hearing about Dr. Christine Blasey Ford’s sexual assault accusations against Judge Kavanaugh, and she pointed out that he had been asked on national television this past week if he would ask for an FBI investigation, and that four different senators asked at least eight times yesterday if he would do so. And each time he declined. She asked him too, one last time, and again he avoided answering the question.
He said repeatedly in yesterday’s hearing that he’s innocent — he did not do this or anything like it, ever. He’s innocent. He’s telling the truth. He’s innocent of this charge.
Brett Kavanaugh said in his opening statement that the rule of law means taking allegations seriously. So the Democrat senators asked him, if he was so eager to clear his name, why not let the FBI investigate? Several senators brought up that President George H.W. Bush opened up the FBI investigation during the Clarence Thomas Supreme Court confirmation hearing when allegations of sexual misconduct against him arose. Senator Durbin (D-Il) told Kavanaugh that they asked Dr. Ford questions about her allegations and that
she answered our questions directly and “she didn’t flinch at the prospect of submitting herself to an FBI investigation of these charges. We know — and I’m sure she’s been advised by her attorneys — that a person lying to the FBI can face criminal prosecution.
See what Durbin did there? He laid out a possible reason why Kavanaugh might want to avoid an FBI investigation. But he’s innocent, right? So why not let the FBI investigate?
His answers? It’s been investigated. The committee investigates. It’s not up to him to say how to investigate. The FBI doesn’t give you conclusions. They only give you the 302 forms that show what we said. They just go and do what you’re doing, ask questions and type up the report – they don’t reach the bottom-line conclusions.
Conclusion: The FBI doesn’t do anything everyone else has already done. So, I guess the FBI is a useless institution?
The Democrats explained — like he doesn’t know — that the FBI does more than ask the same questions. The FBI agents are men and women who are sworn and trained law enforcement officials. They have the expertise and the ability and the history to carry out these investigations (Harris). It’s not so much about the conclusions an FBI report draws, as the breadth of the evidence that is sought out during the investigations (Whitehouse). The FBI questions all the witnesses and collects much more information and thus helps create a clearer picture. Dr. Ford had said she met Mark Judge once more at a Safeway where he worked, a while after the attack, but she didn’t remember when exactly. Some Washington Post reporters went to the Safeway, and by asking questions and looking at the records they found out when Mark Judge worked there and were able to narrow it down to within about six to eight weeks after the attack. Those are the kinds of things the FBI can also find out (Durbin).
Kavanaugh: No witness who was there supports that he was there. All four witnesses said it didn’t happen. Leland Keyser, who was Dr. Ford’s good friend at the time, said it didn’t happen. Mark Judge has already provided sworn testimony to the committee. He sent in sworn statements that this never happened. It has been handled in due course. Under penalty of felony he said that this didn’t happen and that he never did or would have done something like that.
Senator Blumenthal (D-CT) was incredulous that Kavanaugh would try to equate a letter written by Mark Judge (“six cursory and conclusory sentences”) and signed by his lawyer with an investigation by the FBI, or some interview by the FBI under oath. And he pointed out that Ms. Keyser said she doesn’t remember the night in question, but that she believed Dr. Ford. So it seems Kavanaugh was trying to misrepresent some facts there. (And this afternoon her lawyer reconfirmed that she believes Dr. Ford.)
The Democrats explained that they wanted to hear from these other witnesses themselves (Klobuchar). Dr. Ford says that Mark Judge was in the room when she was attacked, in which case he should be interviewed about that in this room (Leahy). Also, the Republican committee members were raising issues about Dr. Ford’s polygraph test, so they might want to ask the polygrapher some questions (Klobuchar). (Incidentally, Senator Harris asked Kavanaugh if he had done a polygraph test. He hadn’t, but he’d do whatever the committee wants. He made sure to add, however, that polygraph tests not admissible in federal court, because supposedly they’re not reliable.)
Kavanaugh slipped up a few times, inadvertently showing why it would indeed be useful for the committee to interview the witnesses themselves. Senator Graham (R-SC) had claimed that voting against Kavanaugh’s confirmation would be legitimizing the most despicable thing in American politics. Senator Booker (D-NJ) asked Kavanaugh if he thought that people who think Dr. Ford’s accusations are credible are supporting a despicable thing. Kavanaugh replied that they should listen to both sides. Well, exactly! And when Senator Leary (D-VT) asked him if he is Brad O’Kavanaugh in Mark Judge’s book Wasted: Tales of a Gen X Drunk, Kavanaugh said, “You’ll have to ask him.” Leahy: “Well,I agree with you there and that’s why I wish the chairman had him here, under oath.” .
He was asked why he can’t wait a week before he starts this lifelong job?
Kavanaugh: He already said he’d welcome anything. He wanted to come and immediately defend his name and say he didn’t do this and give them “all this evidence”. The Democrats had this letter for weeks. This could’ve been handled confidentially, instead of destroying his family. The last ten days have been hell for him and his family, so another week would be too much.
Kavanaugh answered every question about an FBI investigation with distraction about the Democrats having the letter for weeks, and hiding it and springing it on him at the last moment. So at some point Senator Feinstein (D-CA) set the record straight: she didn’t hide anything. She got a letter and was asked to keep it confidential. Which she did until Dr. Ford herself decided to come forward. And Dr. Ford only came forward when she felt forced to by all the media attention after her allegations had been leaked. Feinstein denied that it was leaked by her staff, that it was probably leaked by one of Dr. ford’s friends whom she had asked for advice before doing anything.
Senator Blumenthal tried to cut through the distraction. He asked Kavanaugh directly: “Do you support an investigation right now?” Kavanaugh repeated his mantras: He wanted the hearing earlier, and they had the letter for weeks. Blumenthal: “Personally, do you think that is the best thing for us to do?” Kavanaugh is quiet for a moment, doesn’t seem to know what to say, until Blumenthal asks, “You won’t answer?” Then,
Look, senator, I’ve said I wanted a hearing. I said I’d welcome anything, I’m innocent, this thing was held… held when it could have been presented in the ordinary way, it could have been held and handled confidentially at first which was what Dr. Ford’s wishes were as I understand it, and wouldn’t have caused and destroyed my family as this effort has.
Conclusion: they don’t need an FBI investigation because Kavanaugh’s innocent because he says so and also, his family is hurting.
Senator Hirono (D-HI) asked him if he denied ever being a sloppy drunk in college. Kavanaugh responded that he never was, and gave an inventory of his sports activities and his academic record and reminded her that this was at Yale. When Blumenthal asked about something he wrote at Yale about having to piece together the next day what happened the night before, when he fell out of a bus at 4:45 am, Kavanaugh interrupted him, told him that they had come back from a football game, gave some details about the game, which looked a lot like filibustering to me, then continued to talk about all the fun he had had with all of his friends, and that he had paid for all the tickets and rented the bus himself, etc. For all of his friends. When Senator Leahy brought up the school yearbook, Kavanaugh aggressively interrupted him and insisted on talking about his academic record and his sports accomplishments in high school.
Conclusion: The fact that he played sports and was academically successful in high school and in college is evidence that he can’t ever have been a sloppy drunk, and he also didn’t have to piece things together the next day after falling out of a bus at night after going to a football game because, well, I suppose because he was popular?
Kavanaugh went on and on during this hearing about his good friendships with lots of women, as if that disproves Dr. Ford’s accusations of sexual assault. So Senator Harris asked him if he thought men are capable of having good relationships with some women and treating other women badly? “Of course,” Kavanaugh replied, but starting at age 14, you can talk to 64 women who knew him more than 35 years ago, and who signed a letter to support him. And he repeated his record for having the most female clerks of any circuit judge.
Conclusion: He has good friendships with lots of women, not some. So there you have it — he’s innocent.
Another good question by Senator Harris: Kavanaugh said in his opening statement that this is a left-wing conspiracy against him. However, last year this same president nominated another Supreme Court justice who was accepted in a Supreme Court confirmation hearing by this same body. She pointed out the many similarities between Justice Gorsuch and Kavanaugh: they both went to prestigious prep schools, they both went to Georgetown University, they both clerked for Justice Kennedy and they were both questioned about their work record. The only difference between Kavanaugh and Justice Gorsuch is that Kavanaugh is accused of sexual assault. How did he reconcile his treatment, when compared to Gorsuch’s, with the notion that this is a conspiracy? Kavanaugh: “I’ve discussed that in my opening statement.” In other words: I’m just not going to answer.
So, his arguments, or his defense against Dr. Ford’s accusations of sexual assault were endless repetitions of: The FBI just fills out forms; I’m innocent because I say so, because lots of women whom I haven’t sexually assaulted say so, because my friend and alleged accomplice sent a note saying so, because I played sports and worked hard school and at Yale, and because I had lots and lots of friends. And everyone should just get this Supreme Court confirmation hearing over and done with and just give me this job as Supreme Court justice and leave me alone, again, because I was a good student and a great athlete and because I went to Yale, and because I also have an impressive work record, and because this week has been really rough.
You’d think someone who’s nominated for the Supreme Court could do better. Especially his refusal to ask for an FBI investigation is strange. Senator Blumenthal reminded him that “as a judge, you always want the best evidence, don’t you?”
To be fair, the poor guy has lots of experience being the judge, but zero experience being the accused. Let’s chalk it all up to stress and emotions, just for the sake of argument. All the legal sloppiness, all his pathetic mantra “arguments”, his belligerence, his arrogance and his sense of entitlement. And let’s put aside Dr. Ford’s testimony earlier in the day. I could almost be convinced by Kavanaugh’s categorical, emphatic denials, his tears and his outrage. Almost.
Both Senators Whitehouse and Blumenthal brought up the “Renate alumnius” mentions in the high school yearbook. The woman in question was very upset and Kavanaugh had apologized to her. (At the time of writing I haven’t followed this story so I don’t know who first said ‘alumnius’ meant a sexual conquest and what exactly she was upset about — the mentions in the yearbook or the media.)
Kavanaugh acted outraged that they brought it up. He said that being her alumnius didn’t indicate she was a sexual conquest at all, that “the media circus reported that it meant sex, it did not.” And “She was a great friend of ours, she’s a great person, she’s always been a great person.” And “A bunch of us went to dances with her”, and “She’s a good person and to have her name dragged through this hearing is a joke,” and that “bringing it up in this hearing did great harm to her.” And “Look what you’re implying!” and “Look what you’re bringing up about her, look what you’re doing!” And “By bringing this up you’re just dragging her through the mud. That’s just unnecessary.”
So this was a hearing about Dr. Ford’s accusations of sexual assault against Kavanaugh, an assault that allegedly happened in high school. A hearing is a meeting where people ask questions to get to the bottom of something. Kavanaugh had been portraying himself throughout the hearing as this choir boy who was always respectful towards girls and shy around them sexually, and who was a virgin until years after college. At the same time almost the entire football team, including Kavanaugh, had written “Renate alumnius” under their photos in the high school yearbook. And Blumenthal and Whitehouse should be ashamed that they dragged Renate’s name through the mud? That is the weirdest case of gaslighting I’ve ever seen or heard of.
At some point Senator Blumenthal asked Kavanaugh if he was familiar with the jury instruction Falsus in uno, falsus in omnibus — Latin for: False in one thing, false in everything. A judge can instruct a jury that they should disbelieve the witness if they disbelieve him in one thing. It was a propos of nothing — he just wanted to put that out there. So do I, here.
Senator Kennedy (R-LA) was the very last person to question him. He asked him if he believed in God and if he could look him in the eye and say that the allegations made by Dr. Ford against him were false? They were false as to him, he didn’t know if the attack had happened, but not by him, Kavanaugh said. And could he look him in the eye and say that the allegations made by the other two women against him were false? They were absolutely false. “Do you swear to God?” “I swear to God.”
It’s altogether possible I’m projecting, but Kennedy didn’t look convinced.
P.S. I can’t keep up! While I was writing this yesterday, Senator Jeff Flake (R-AZ) said he would vote to move Kavanaugh out of the committee, but that he would not vote in the Senate before a week-long FBI investigation, and Trump seemed fine with it. Maryland has no statute on limitations for sexual assault, so the next question will be: if Kavanaugh withdraws before the FBI starts the investigation, will police in Maryland take over?
- Rupar, Aaron. Kavanaugh lied when he claimed Ford’s accusation is ‘refuted.’ Ford’s friend just called him on it : Blatant dishonesty. (Latest Stories) THINKPROGRESS, September 29, 2018.
- Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 3, Part 4, 06:34-09:56. C-SPAN, September 6, 2018. https://www.c-span.org/video/?449706-102/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-4.
- Supreme Court Nominee Brett Kavanaugh Sexual Assault Hearing, Judge Kavanaugh Testimony. C-SPAN, September 27, 2018. https://www.c-span.org/video/?451895-2/supreme-court-nominee-brett-kavanaugh-sexual-assault-hearing-judge-kavanaugh-testimony&playEvent
- Supreme Court Nominee Brett Kavanaugh Sexual Assault Hearing, Professor Blasey Ford Testimony. https://www.c-span.org/video/?451895-1/professor-blasey-ford-testifies-sexual-assault-allegations-part-1&playEvent.
Image: Screenshot from the Brett kavanaugh Sexual Assault Hearing.