Monday, October 1, 2018

Notes on the Kavanaugh Nomination Brawl

Two views of the Kavanaugh fiasco. One from John Hinderaker, of the Powerline blog. One from Alan Dershowitz, who does not need an introduction.

Hinderaker argued (via Maggie’s Farm) that Democrats are smearing Kavanaugh because they want to warn any and all Republicans against crossing them, whether it means associating with Donald Trump or being part of a Republican administration. It’s Maxine Waters politics: make it impossible for Republicans to show their faces in public.

I think that Judge Kavanaugh’s pristine reputation is one reason why the Democrats have unleashed against him a smear campaign unparalleled in American history. This is the message they are trying to send: If we can do this to the Boy Scout Brett Kavanaugh, we can do it to anyone. Are you thinking of serving in a Republican administration? Or accepting an appointment to the federal judiciary from a Republican president? Think twice, and then think again.

Because our smear machine will reach back to middle school if necessary. If we can’t find any dirt on you, we will manufacture some. There is no depth to which we will not stoop, and your honesty, integrity and spotless reputation are no match for our control over the media and our determination to dredge up ridiculous allegations against anyone who stands in our way.

Really, the more ridiculous the better. If we can accuse Brett Kavanaugh, one of the most respected lawyers and judges in America, of gang rape, we can accuse anyone of anything! And our insane accusations will dominate the news….

By smearing the ultimate Boy Scout, the Democrats signal that they are determined to go lower than anyone has ever gone in American history. They intend to deter normal people from serving in Republican administrations, or accepting appointments from Republican presidents, or, ultimately, from identifying themselves with the Republican party. Given that strategy, the fact that they are smearing a man of obviously sterling character on absurdly flimsy grounds is not a bug, it is a feature. The fact that the Democrats’ smears are so patently false is ultimately their main point.

The Democrats are telling us: Republicans, beware–if this can happen to Brett Kavanaugh, it can happen to anyone. You’d better go quietly and cede power to us.

They will do anything to win. They will go to any lengths and destroy any individual in order to exercise power. So says Hinderaker.

Dershowitz responds to some of the talking points we have been hearing on the news. The first being, that Kavanaugh is not entitled to the presumption of innocence because he was undergoing a job interview.

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.

If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a “convicted” rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.

The court of public opinion is different from a court of law, but it too is an important court. Wouldn’t anyone rather be convicted in a court of law of drunken driving—also a serious crime—than convicted in the court of public opinion of being a serial sex predator? Many would even rather go to prison for a year on drunken driving charges than be labeled a sexual predator for life. In a nation dedicated to fairness and due process, explicit constitutional rights often serve as a metaphor and guide in the kind of basic fairness we demand even in nonlegal proceedings. That model should operate here as well….

Some would argue that if Judge Kavanaugh is now confirmed in the face of these serious accusations, it will have an equally damaging effect on the life, reputation and credibility of his accusers. That is false. Even if he is confirmed, those accusers will be treated as heroes by the many people who believe them. It will not have close to the impact on them that a failure to be confirmed will have on Judge Kavanaugh. The best evidence of that is Anita Hill, who has gone on to a distinguished career as an academic, writer, commentator and feminist. The stakes are simply not comparable.

Considering the potential consequences for the man and his family, we should, Dershowitz says, afford the accused all legal protections. Instead, Kavanaugh’s detractors are refusing to give him any legal protections. Dershowitz reminds us that we saw exactly the same thing during the McCarthy era, when people were slandered and defamed, their character assassinated, by the reckless senator from Wisconsin.

But this is no longer about who would make the best Supreme Court justice. It is about the most fundamental issues of fairness this country has faced since the McCarthy era, when innocent people were accused of trying to overthrow the government and had their lives ruined based on false accusations, while being denied all semblance of due process or fairness. The American Civil Liberties Union stood strong against McCarthyism by demanding due process and hard evidence. But the ACLU now argues that “unresolved questions regarding credible allegations of sexual assault” be resolved against the accused nominee.

We have come a long way since McCarthyism, but we now live in an age that risks a new form of sexual McCarthyism. We must not go to that even darker place. The best way of assuring that we don’t is to accord every person regardless of his status, the kind of fundamental fairness we would expect for ourselves if we were accused.

It’s a sad day when fundamental fairness is a controversial idea.


Ares Olympus said...

I guess the only surefire way to know we've now entered the new McCarthy era is for Trump to ask Kavanaugh to withdraw, and pick a new guinea pig and see what happens.

For contrast we can consider Neil Gorsuch was confirmed in 2017 after the republicans blocked Obama's candidate from even being recognized, and was confirmed 54-45 with 3 Democrats voting yes. And yes, the Democrats did threaten a filibuster, and the Republicans simply changed the rules, problem solved.

Overall my guess is this nominee has emotionally drained everyone and the Dems would not even bother complaining on any replacement, unless the vote is delayed until 2019 and they gain a majority in November. Then who knows what revenge is possible. Maybe they'll even restore the filibuster to show good faith!

Overall, it seems the best way for Kavanaugh to clear his name in regard to Ford's accusations is to let the FBI continue gathering all the information they can until some explanation can be found, although I still think the best explanation is the boy scout isn't, and he had plenty of blackouts as a youth that he doesn't want to admit, and that's why he doesn't want an FBI investigation of his past.

Sam L. said...

I am old enough to have some memory of the Army-McCarthy hearings that I saw a little of on TV. I had to look up the name of the man who asked McCarthy, "Have you no sense of decency?"

Who among the Republicans will ask that of the Democrats? For they have NO sense of decency.

Ares Olympus said...

Sam, perhaps Kavanaugh should have used that line, unless self-righteous denial is more convincing?

Instead Kavanaugh said "This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country."

It is similar to Thomas's 1991 lament "I think that this today is a travesty. I think that it is disgusting. I think that this hearing should never occur in America. This is a circus. It's a national disgrace.

And "And from my standpoint as a black American, as far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."

sestamibi said...

The always unspoken question still remains: "Why aren't WE doing the same thing to THEM?"

Walt said...

I admit to having found both Ford and Kavanaugh credible last Thursday, though I did find him occasionally uncomfortably evasive. But Mitchell's (the AZ prosecutor's ) analysis puts a convincing chink in Ford's story. Keeping in mind that she had access to documents as well as the testimony, read her timeline in which Ford serially placed the "event" in, first, the late 1980s, then the mid-80s, then just sometime in the 80s, but then swearing it happened when she was 15. I realize she's a "psychologist" not a mathemetician, but I believe everyone knows what year they were 15.

Anonymous said...

"Fairness" ?

What is this... a Snowflake contest for Conservatives now?!?

Ares Olympus said...

Walt, thanks for sharing the link. I see (as expected) Mitchell conclusion - Ford's testimony fails legal standards for prosecution, with a lack of collaborating evidence. So if the FBI doesn't come up with evidence to suggest perjury from Kavanaugh, the GOP members can vote YES on confirmation with confidence no one was silenced or ignored. A woman who experience sexual assault who want justice needs to speak up early and often.

The conclusion is here:
A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.

Dr. Irredeemable Dreg said...

Anon 4:45...

Actually, "the kind of fundamental fairness we would expect for ourselves if we were accused" is enshrined in the Constitution and Bill of Rights, and before that, British Common Law, and, before that, the Magna Carta. If you so choose, due to cultural differences, national origin, or merely an unfamiliarity with history, you may think of the Constitution and Bill of Rights as a Safe Space protecting free men and women from the whims of tyrants and would-be tyrants, sans Play-Doh and crayons.

Dr. Irredeemable Dreg said...

Actually, what is going on here is obvious to anyone thinking back beyond yesterday's news cycle. It was Sen Feinstein, was it not, who observed, "“When you read your speeches, the conclusion one draws is that the [Catholic] dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”, while interrogating another Catholic nominee for the 7th Circuit Court of Appeals, Ms Amy Coney Barrett.

Our common Safe Space from Tyranny, the Constitution, in Article IV:3, states:
"[N]o religious test shall ever be required as a qualification to any office or public trust under the United States..."

I'm sure CAIR would agree with this Safe Space requirement. And Starhawk {right, Ares?}. And the hosts and guests attending the "spirit dinner" with John Podesta.

And the devout, yet humble, Methodist, Hillary Clinton, survivor of Bosnian sniper fire and former next President.

By all accounts, Brett Kavanaugh is a "practicing" Catholic (the term "practicing" used to distinguish Kavanaugh's Catholicism from that of, say, Ted Kennedy - notorious drunk, womanizer, college cheat, Uber driver for the late Mary Jo Kopechne, and Democratic Lion of the Senate). And let us not forget that Sens Feinstein and Durbin were roundly criticized for their brazenly unconstitutional line of questioning directed at Ms Barrett despite their oath of office.

Adopting the "dog whistle" metaphor currently popular among a certain political segment, Feinstein's "big issues that large numbers of people have fought for for years in this country" is a dog whistle for untrammeled abortion. And I'm sure Kermit Gosnell agrees, as do the purveyors of "fetal tissue" and their potential Lamborghini salespersons.

The Feinsteinian emanations and penumbras of Christine Blasey Ford's vacuous accusations fall directly on untrammeled abortion "rights", and who better to deliver them in person than a woman whose post-doctoral private sector research program has focused on extending the indications for the "abortion pill" (WaPo, 1/11/2018) RU-486. And Ford will be handsomely compensated following her little GoFundMe ad offered as part of her Senate testimony.

Anonymous said...

Since when are women not responsible for what they do and say?

Who says CBF is credible? Based on what?

Ramirez has nothing.

Swetnick should be indicted for fraud with her Swiss cheese sworn affidavit.

And the media is simply out of control. Soros is out of control. Jeff Flake is a flake.

Political theater. Judicial nominations have reached a new low, as have Democrats.

Ignatius Acton Chesterton OCD said...

Consider this: We know next to nothing about Christine Blasey Ford, other than what she’s volunteered, er, prepared. Nothing.

Practically every scintilla about her past has been scrubbed. Who does that? Are we really to believe that a 51-year-old knows how to digitally vanish without a trace... on her own???

Her own family doesn’t want to comment on anything about this. They’ve been conspicuously silent while people are falling over each other in a rush to support “her truth.”

Around her, the 11th-hour orchestration and choreography of this circus is too well-planned to be credible. She sent her letter to DiFi in July, and had a couple months to prepare for the inevitable media onslaught, likely with help:

And since when is credibility separated from evidence? All these people “believe” her. Believe what? Believe WHAT specifically? That she believes what she says? She’s a research psychologist with published work on hypnosis and memories.

Her “indelible in the hippocampus is laughter” comment is itself laughable, in light of the details she cannot renember, even with all kinds of time to prepare. Isn’t that kind of stuff supposed to be indelible, too? Where were you when JFK was shot or the Challenger blew up or on 9/11?

This is a political hit job by Left-wing activists. Ford’s motives are perfectly aligned with theirs, including that she wants to move halfway around the world if Kavanaugh gets on the Supreme Court. Gee, where did we hear that before? Maybe there should be a GoFundMe to buy her a plane ticket. Oh, that’s right... she already has the GoFundMe thing figured out. That’s all her personal digital presence is today.