Supreme Court

Politico Symposium on How to Handle the Kavanaugh Sexual Assault Accusation

It includes contributions by a variety of legal scholars and commentators, including myself.

|The Volokh Conspiracy |

Judge Brett Kavanaugh.

Politico has posted a symposium on how the Senate should handle the sexual assault accusation against Supreme Court nominee Judge Brett Kavanaugh. The symposium includes pieces by various prominent legal scholars and commentators, including Laurence H. Tribe, Sanford V. Levinson, Abbe Gluck, Deborah Rhode, Mari Matsuda, Catharine MacKinnon and Michele Landis Dauber, Richard Epstein, and Ilya Shapiro, among others. Here is an excerpt from my contribution:

The woman who has accused Supreme Court nominee Judge Brett Kavanaugh of sexual assault has now come forward. What should the Senate do? The Judiciary Committee should investigate the matter, and potentially hold additional hearings, and if necessary delay voting on the nomination, as recently suggested by GOP Senator Jeff Flake….

What should the standard of proof be? A Supreme Court confirmation hearing is very different from a criminal trial, where guilt must be proven beyond a reasonable doubt. Denying a person a lifetime position of vast power on the nation's highest court is not the same thing as taking away his or her liberty. It is reasonable to set a lower threshold for the former than the latter.

At the same time, it would be a mistake to put nominees in the position of having to definitively prove that accusations leveled against them are false. If that becomes the norm, virtually any nomination could be derailed by unsubstantiated accusations concerning alleged wrongdoing that occurred decades ago. I would thus tentatively suggest that the right standard is that of preponderance of evidence. If the evidence indicates that it is more likely than not that a Supreme Court nominee is guilty of serious wrongdoing, that should be sufficient to reject the nomination….

The situation may change radically if other women come forward with plausible accusations of sexual assault or harassment. Regardless, fair-minded observers should keep an open mind and should encourage the Senate to conduct as unbiased an investigation as possible. Sadly, that may be too much to expect in this era of poisonous partisan bias.

I also address the question of whether the accusation should be disqualifying if evidence indicates that it is likely to be true:

There is some merit to the idea that we should discount accusations about long-ago events that occurred when the perpetrator was a minor. But whether such issues can be ignored completely depends on the seriousness of the charge and the importance of the position for which the person is being considered. Sexual assault is a serious crime and a seat on the Supreme Court is a position of vast power.

In addition to this symposium, I highly recommend this insightful and balanced article on the issue, by Reason's Robby Soave.

UPDATE: The Politico symposium has added several additional contributors since I initially put up this post. I have edited the post accordingly.

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NEXT: High-School Assault Accusation Could Kill Kavanaugh Confirmation. Should It? Reason Roundup

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  1. The remoteness of the alleged assault would be more of a factor were Kavanaugh not categorically denying anything happened. I’ve never done anything as bad as the story at issue here, but we all have embarrassments from the past we’ve moved beyond. Except he’s not trying to move beyond.

    Add in his apparent 2006 iffy relationship with the truth, and that is the issue, IMO – it at least creates a narrative that he’ll deceive all he must to get on the Court. Not as headline-grabbing as an alleged premeditated sexual assault, but something with present implications for the nominee’s character.

    And then there is the character of the GOP and the Court. Are they so hellbent on dem judges they’ll ram this through in the window they have and to hell with any hearings? Because if you want a Court with only partisan legitimacy, that’s how you get a court with only partisan legitimacy. And Roberts’ clear stewarship of the Court’s reputation would be in quite a pickle in how he’d vote on any conservative judicial activism.

    My samples of political opinion are quite biased, but I expect they’ll push him through before the midterms, consequences bedamned. And that’s the right political move, I think – despite my predictions above, I cannot deny that there has been quite a shift in what’s actually consequential these days.

    1. I would guess he will be confirmed now in the lame duck session if at all. No one wants to go on record voting him in just before an election, and afterwords they will have plenty of time to either vote him in if Republicans loose the Senate or kick him back if they keep control for a nominee who doesn’t have this baggage.

      The only way I see him coming up for a vote prior to the election is if a wave of women come forward and they can’t possibly vote to confirm him.

    2. Here is a link to an ethical analysis of this issue.

      http://ethicsalarms.com/2018/0…..nita-hill/

      1. Hahaha, that’s not actually an analysis at all, though it is some very well done partisan bluster:

        1 The accusation was anonymous, and thus could not be fairly confronted by the accused. UNFAIR.

        2. The accusation was over 30 years old, meaning that all aspects of it, including the recollections of the alleged participants, would be inherently untrustworthy. This is why we have statutes of limitations. UNFAIR, and IRRESPONSIBLE.

        3. The accusation was, and still is, unsubstantiated by anyone else. UNFAIR, and IRRESPONSIBLE.

        4. The accusation was made against a distinguished public servant and family man with no documented blemishes on his record or character as an adult, stemming from an alleged incident that occurred, if it occurred, while he was a minor. UNFAIR

        5. No complaint had been made against Kavanaugh by the accuser at any time in the intervening years, until his nomination by President Trump became a political rallying point for the Left. IRRESPONSIBLE.

        1. I don’t think he’s particularly insightful, but Jack Marshall is pretty non partisan about what he categorized as unethical. It’s a really weird blog

          Let’s see if the blog’s mention summons Walt Tuvell and an extended discussion on the proper standard of summary judgment…

          1. Fair enough, I saw the bluster and who it was in service of and assumed partisan.

            Regardless, that is some good ham!

            1. That was my first impression because it is really high on bluster on just about everything. Even if I don’t think it’s insanely partisan, it’s not one I would put on anyone’s recommended reading list.

            2. Might be bluster, but it’s true bluster.

        2. In addition, the allegations could have been brought up during his previous confirmation hearings.

          Further, these may well be psychiatrist-assisted recovered memories, which are notoriously unreliable: Reflecting more the biases of the psychiatrist than the memories of the patient.

          The Senate should subpoena the complainant for a hearing under oath, on Wednesday. She can show, or not. Then, the Senate can have their vote in committee on Thursday, and in the full Senate on Friday.

          1. psychiatrist-assisted recovered memories

            Oh, those tend to be BS. But I see no evidence that is what happened here.

            I see no reason to disagree with your timeline (Senate’s desire to enjoy more limelight permitting) though I’d also like maybe half a day for Kav himself to answer the accusations as well.

            1. And it looks like that’s what they’re gonna do.

    3. After the Democrat performance at the hearings, there’s zero basis for caring what any of them think about the legitimacy of anything. Democrats can stop acting like human garbage if their want their notions to be considered.

      1. Democrats will have all the consideration they need when they enlarge the Supreme Court and install a majority that will relegate Justice Kavanaugh to writing a lengthy series of whiny dissents.

        1. Then Republicans will double the court’s size the next time the Democrats lose. Good luck with that strategy.

          1. I don’t need luck. I just need the continuing improvement of America’s electorate — less rural, less religious, less white, less backward, less bigoted.

            See you at the polls, Ben.

            1. You have a problem with white people?

              1. He looks done on rural citizens. The Rev is quite the bigot and a clinger to boot.

              2. Why, yes, yes, he does. Though he would probably extend that to anyone who might remotely disagree with his reactionary and bigoted views.

                I’d normally say that anyone who writes like him must be a moby, a caricature, writing to make a particular side of the argument so insanely insipid that no one would go near it, but I’m afraid he’s actually serious. Unless he’s remarkably good at holding on to the same mask for at least the half the decade that I’ve had the misfortune to run across him on the comments page.

            2. I’d love to seen an American electorate that was less backward and less bigoted. Are you moving to Canada, Rev? That would help a lot.

          2. Ben, one bit you have to wonder about. If the Ds get control of the court for even a few years, and want to play it Republican-style partisan, could they use R-style tactics to pretty much prevent the return to power of Republicans, ever? Remember, the R’s tactics have had pretty good success at securing the Rs in power against an actual majority arrayed against them. How much more effective might those same tactics prove if deployed on behalf of a majority?

            I don’t say that with any sense of positive anticipation. I would be fine if today’s Republican Party went down without a trace. But the notion of the Ds permanently in power is horrifying.

            1. The Democrats are only a “majority” because they’ve imported third worlders to replace us.

              1. Come for the racism. Stay for the conspiracy theories.

              2. Don’t forget that the Republicans spent decades letting them. Plenty of guilt on that score to go around.

                1. I have not forgotten. Those who accepted it for cheap labor are traitors too.

                2. Racist conspiracy complicity.

        2. Even Roosevelt ‘s supporters were outraged by that Idea.

          1. That’s odd. Here I thought that the standard of today was what you had the raw legal power to do, and to heck with all those pesky historical norms and standards of behavior.

            1. As long as you’re on the right side of history, all is forgiven, and indeed expected. So, the nuclear option was not only bad, but also a consitutional crisis when the Republicans proposed it in the face of Democratic intransigence. When the Democrats decided they needed it, it was now a blessed instrument, and how dare the Republicans oppose that righteous agenda? Of course, it became bad again when the Republicans returned to power.

              The same thing here. It’s not the power, it’s who uses it.

            2. As long as you’re on the right side of history, all is forgiven, and indeed expected. So, the nuclear option was not only bad, but also a consitutional crisis when the Republicans proposed it in the face of Democratic intransigence. When the Democrats decided they needed it, it was now a blessed instrument, and how dare the Republicans oppose that righteous agenda? Of course, it became bad again when the Republicans returned to power.

              The same thing here. It’s not the power, it’s who uses it.

      2. Democrats can stop acting like human garbage if their want their notions to be considered.

        I’m sorry if the Democrats’ lack of decorum offended you. Perhaps a safe space away from these most anodyne of political antics would be better for your constitution.

        1. Who asked for a safe space?

          The comment was that the loons cannot be taken seriously. Why is that so hurtful to you?

          1. You seem to be all for taking your ball and going home after what’s some pretty meh parliamentary antics, of the sort that we’ve seen for decades. Certainly we’ve seen worse from both sides on judges alone!

            You seem offended by Democrats using said procedural antics in daring to demand following previous order when it came to nominations. Partisan outrage makes snowflakes of us all!

            1. You seem to be all for taking your ball and going home after what’s some pretty meh parliamentary antics, of the sort that we’ve seen for decades.

              No.

              i’m all “You people have made asses of yourselves for a while and already made laughable accusations (Booker did claim he supported racial profiling when the email he provided as proof said the opposite and Kamala DID doctor a video to completely change what he was saying about birth control) so, without some real concrete proof, I don’t believe ANYTHING you say”.

              1. You keep insisting that the Dems were extra super mean. They were not. I can only assume your sensitivity comes from your ox being the one gored. Sorry about that. If assuming everything the other side says is a lie helps you feel up to what’s been political life for decades, I guess that’s your prerogative.

                As to your objections, I saw the e-mail, and think there is a less generous, but more obvious reading where Kav is working to allow profiling to the maximum extent possible.
                Dunno what you’re talking about re: Harris.

                1. You keep insisting that the Dems were extra super mean.

                  Funny, I wrote:

                  You people have made asses of yourselves for a while and already made laughable accusations (Booker did claim he supported racial profiling when the email he provided as proof said the opposite and Kamala DID doctor a video to completely change what he was saying about birth control) so, without some real concrete proof, I don’t believe ANYTHING you say

                  Nothing about being mean. More about them being asses and LYING, repeatedly, in this endeavor.

                  As to your objections, I saw the e-mail, and think there is a less generous, but more obvious reading where Kav is working to allow profiling to the maximum extent possible.

                  His comment that he wants race-neutral guidelines and they need to grapple with what to do until a comprehensive system is available can be construed as being pro-profiling? Seriously.

                  Dunno what you’re talking about re: Harris.

                  It was covered in many, many places. Sorry if you missed it.

                  1. Even funnier — Grassley is trying to set up a meeting with the liar, I mean “professor”, with Feinstein’s office and, shocking, her office is refusing.

                    Tell me more about how serious this is.

                    1. She’s willing to testify, dude.

                      And yeah, I mixed up your complaining with Ben_’s who I had originally responded to. You don’t need a safe space, though your spite does seem unhealthy.

                      Have you ever seen a SCOTUS nomination hearing before?
                      The only thing unusual about the hearing is the short timeline the GOP gave the Dems for doc review, the creation of the ‘committee confidential’ standard. And this thing that has you so furious at this woman.

                    2. “She’s willing to testify, dude.”

                      And yet, she didn’t testify during the actual nomination hearing.

                    3. Which proves very little about her credibility.

                    4. Which proves very little about her credibility.

                      Democrats lied about his views on profiling. Lied about his comments on birth controi. Sent in protesters to make asses of themselves incessantly.

                      But THIS WOMAN — she was a bridge too far?

                      That they DIDN’T call her is about as damning a thing as humanly possible.

                    5. She’s willing to testify, dude.

                      Talk to DiFi. She is fighting it.

                      The only thing unusual about the hearing is the short timeline the GOP gave the Dems for doc review, the creation of the ‘committee confidential’ standard. And this thing that has you so furious at this woman.

                      There was nothing odd except Dems whining about “;insufficient time” after ALREADY saying they will vote against him.

                      They should’ve just skipped the committee and done an immediate floor vote.

                2. Hirono was mean and discourteous. Harris was mean with her prosecutors trick questions and Booker; on his Spartacus moment was just a jerk.

                  In contrast, Klobuchar and Coons, were very fair. Whitehouse was very tough but fair,

                  I would have said that Feinstein was fair although already decided. But I find it very hard to believe that a politician as seasoned and savvy as her just mishandled the Ford allegation. More likely she was the mastermind of the 11th hour strike. Progressive in CA are stupid to complain that his is Too old” and “too moderate.”

                  1. mean and discourteous
                    prosecutors trick questions

                    Yeah, that’s how noms go. Sotomayor might be a neat comparison to try out.

                    1. Compared with the highly competent Whitehouse questioning, Harris was pathetic.

                      As for comparing with Sotomayor, RBG rightly complained that these proceeding are the latest in a steady downhill decline in confirmation reviews with consequent damage to the judiciary

                  2. Mishandled the Ford allegation? Everybody in this discussion seems to have forgotten that for decades this nation has, with very few exceptions, adopted a norm that women making sexual assault charges will get their identities protected, at least prior to court proceedings. I take no position on that here, but it has been the standard. Whatever you think about Feinstein, her handling of the Ford allegation was within that standard, maybe not coincidentally.

                    1. So, the accused have zero due process rights to know their accuser?

                      That is the argument you make here.

                    2. Whatever you think about Feinstein, her handling of the Ford allegation was within that standard

                      Which is more likely to foment a feeding frenzy in the press: (a) report the allegations confidentially to the committee in July and let the FBI examine them in the course of their normal background investigation, or (b) wait until the last minute and then announce to the press that there are sexual allegations against the nominee that have been reported to the FBI but that nothing more can be said, but demand that the committee vote be postponed?

        2. The Senate seems to be the safe space for behavior that you would ground any of your children for.

        3. Just setting the terms of the debate. It would be stupid (or at least extremely generous) to offer the Dems any consideration given their antics.

          1. Getting the vapors at the Dems acting as the opposition has always acted in nomination fights doesn’t hold much water.

            The terms of the debate are as I posted in the first post. This is a fight in two arenas: policy and politics, with statesmanship kinda looking on.

            Policy-wise, neither side should want someone so grasping for the Court that they would lie about this (and potentially other stuff) to get the job. Regardless of their judicial philosophy. It’s material, and thus the question becomes credibility. Which brings us to…

            Politically, the GOP skipping a hearing and attacking the woman looks like a naked and unprincipled power jab by hook or by crook. Those who are not GOP partisans will not look kindly on it, nor the justice who skated by right after the last guy had a bit of a dodgy nomination himself. They can do it, and lump the price at the ballot box. But that isn’t the only price to pay…

            In the arena of statesmanship, a Supreme Court should minimize the risks to it’s credibility. I think it could survive two justices with questionable legitimacy due to the GOP ramming them through and screwing the Dem Presidents’ candidate just ’cause. But if they try and do anything sweeping, that’s going to be a test of the Court’s legitimacy I, as a fan of the Republic, do not fancy.

            So as a matter of good policy, and of good statesmanship, it’s clear what the GOP should do. As a matter of politics, that’s not as clear, I allow. We shall see!

            1. Though the GOP is in a bind, because a hearing could look bad, and withdrawal gives Dems a scalp right before the primary. (and scalps are of an often underestimated power in politics)

    4. “Except he’s not trying to move beyond.”

      How Stalinist of you. The accusations must be true, you need to admit your guilt and move on Comrade.

      You don’t leave any room for this not happening at all. He is guilty if he admits it and guilty if he denies.

    5. Add in his apparent 2006 iffy relationship with the truth, and that is the issue, IMO – it at least creates a narrative that he’ll deceive all he must to get on the Court. Not as headline-grabbing as an alleged premeditated sexual assault, but something with present implications for the nominee’s character.

      Like Sonia Sotomayor? During her confirmation hearings, she said that the Heller decision was “settled law”. After confirmation she voted with the McDonald dissent to overrule Heller. She lied and cannot be trusted, and sits on the Supreme Court.

      1. You used to do better than this, Kevin.
        Everyone knows settled law is exactly as settled as 5 votes think it is. There’s no dishonesty there.

        This issue with Kavanaugh’s past testimony isn’t about his policy positions, it’s about denying some of the political work he did for the Bush admin. That’s a much more concrete issue.

        1. Everyone knows settled law is exactly as settled as 5 votes think it is. There’s no dishonesty there.

          But plenty of people are asserting that Kavanaugh is being dishonest when he refuses to acknowledge that, for example, that he believes that Roe was incorrectly decided, when the truth is that Supreme Court nominees can’t be making political promises to vote in a certain way in exchange for confirmation.

          1. This is entirely in keeping with my note that ‘settled law’ is a very lame fig leaf.

          2. Supreme Court nominees can’t be making political promises to vote in a certain way in exchange for confirmation.

            OT, but the whole business is silly. Trump promised to nominate judges who would overturn Roe, conservatives have cheered Kavanaugh for his apparent views on abortion, and his record – most notably in Garza – clearly suggests that he can hardly wait.

            But suddenly he’s all coy, and can’t say anything, and it would be improper, and so on. Answer the effin’ question.

            1. “Answer the effin’ question.”

              Talk to Ginsberg and Kagan, they wrote the post-Bork template. Kav was just following them.

        2. “settled law is exactly as settled as 5 votes think it is”

          I agree, but that is not what politicians questioning nominees often make very different claims.

          Still, most would agree that Marbury v. Madison is settled law.

    6. ” I’ve never done anything as bad as the story at issue here, but we all have embarrassments from the past we’ve moved beyond. Except he’s not trying to move beyond.”

      There’s a little problem here: If it didn’t happen, he’s got nothing to move beyond, and he SHOULD categorically deny it.

      So your reasoning starts from the assumption it happened.

      1. If this is a pack of lies, then I agree he’s doing what he should.

        There needs to be a factual analysis, and if it’s more likely than not that this happened, he’s dunzo. Maybe not because of what he did, but certainly because of how he’s acted about it.

        1. What would be the basis for a factual analysis? A single recollection on the one side with no supporting contemporaneous evidence and two categorical denials that the event even occurred from the two other
          mentioned “participants”.

          She said, he said, he said.

          1. She can’t even provide a date for this incredibly scaring incident seared in her mind.

          2. This is why you have a hearing. Does her timeline add up?
            If there are denials the event even occurred, that’s certainly something to look into.

            This is an issue that has happened before and will happen again; there are ways.

            1. She’s already said she doesn’t remember where it happened or when it happened.

            2. “Does her timeline add up?”

              Where do you start the “timeline”?

              90 days in summer of 1982 but then she is not sure it was 1982.

              1. Then put her to the question in front of the committee.

                1. “EVIL REPUBLICANS BADGER RAPE SURVIVOR!”

                  Sure, great plan.

                  1. “Sure, great plan.”

                    Its even got a name: Anita Hill

            3. No, this is why you tell her to either come back with some evidence or go away.

            4. That is why the FBI took no action, It lacks credibility.

              The most likely event was that it was a typical teenager trying to get to first based and was told no. The rest is an embellishment via a “repressed / recovered memory” if it was even him.

              1. This isn’t a criminal trial. If the GOP is just going to push on through, that’s their prerogative. But just declaring ‘no one can ever know!!!’ and then moving on may not be the best look.

                1. “But just declaring ‘no one can ever know!!!’ and then moving on may not be the best look.

                  At this point in time there are only three possible courses of action.

                  1. Declaring ‘no one can ever know!!!’ and then moving on.

                  2. Presuming the accused innocent and moving on.

                  2. Presuming the accused guilty on the basis of zero evidence.

                  There is absolutely nothing that could happen from bringing the Accuser and the accused in to testify in further Senate hearings that will alter that choice in any conceivable way.

                  1. Slyfield, here are some things that could happen. Let’s see if they do.

                    1. Someone else who was at the party could recall it, could recall Ford, and could recall Kavanaugh.

                    2. Assessments of the state of intoxication of all involved may turn up.

                    3. Under oath, Kavanaugh’s book-writing buddy may experience improved recall.

                    4. Ford could provide detailed moment-by-moment recollections of what Kavanaugh did.

                    5. Ford’s counselor could turn out to look credible, and provide corroborative information recorded long before Kavanaugh’s nomination was in prospect.

                    6. Some other victim of Kavanaugh’s alleged conduct could step forward to support Ford’s account circumstantially, with a similar tale.

                    7 None of the above.

                    8. Ford could turn out to look like a crazy, unreliable witness.

                    9. A date and time for the cited party could emerge, and Kavanaugh could prove he was out of town.

                    10. Some other Kavanaugh could turn out to be the alleged assailant, and agree to say so.

                    This could go on and on. Any of it would serve the nation better than bulldozing through without taking testimony. But I expect the Rs to try to make it pro-forma, and to rule against any and all requests for time to follow up on information which may come out. Who knows if Collins will stand for that, or switch sides. A Pence tie-breaker would be a bad look against this backdrop.

                    1. #1 If that was possible, why hasn’t it happened already? Besides, only 2 people have been called for additional testimony.

                      #2 After 30 years? When it wasn’t reported to anyone at the time? No.

                      #3 No one, R or D has asked to have the book-writing buddy testify under oath.

                      #4 I would actually find this highly suspicious at this point.

                      #5 The counselor hasn’t been asked to testify. The report is too vague on details and the counseling sessions too recent d to be corroborative of the accusation itself, even if it does disprove a political motive.

                      #6 Why hasn’t this happened already?

                      #8 Doesn’t actually change the decision from what I outlined above.

                      #9 It was 30+ years ago and they were in high school, even if a solid date time emerges, which in itself I would consider suspicious at this point, a solid alibi after this much time is unlikely.

                  2. There is absolutely nothing that could happen from bringing the Accuser and the accused in to testify in further Senate hearings that will alter that choice in any conceivable way.

                    Clearly, the Democrats will be trying to get other witnesses to testify that they remember instances in high school when Kavanaugh was drunk, overbearing and domineering. If they can produce any such witnesses it will make the accuser seem more credible. If they can’t, then there will need to be an explanation as to why nobody else ever saw this side of him.

                2. “But just declaring ‘no one can ever know!!!’ and then moving on may not be the best look.

                  At this point in time there are only three possible courses of action.

                  1. Declaring ‘no one can ever know!!!’ and then moving on.

                  2. Presuming the accused innocent and moving on.

                  2. Presuming the accused guilty on the basis of zero evidence.

                  There is absolutely nothing that could happen from bringing the Accuser and the accused in to testify in further Senate hearings that will alter that choice in any conceivable way.

                  1. How is having a hearing tantamount to pronouncing the accused guilty?

                    1. We already had a hearing.

                    2. This isn’t court, TiP. The GOP trying to play hardball with the timing will be seen by everyone (including you, I’d wager) as the transparent move to ram this through that it is.

                    3. “This isn’t court, TiP. The GOP trying to play hardball with the timing…”

                      Huh? The Dems, and Prof Ford, were not under time constraints. They were perfectly free to bring this up at the hearing. The fact that they chose not to is on them. They have no business asking for another hearing, they just passed up a perfectly good hearing.

                    4. Yeah, I’m coming around to the fact that Feinstein probably got the leak out for reasons discussed herein.

                      I’m also of the opinion that sticking to the hearing schedule isn’t a rule at all, and if the GOP had pushed this through citing the need to stick to the schedule it would have been pretty risky.

                      Though I don’t know whether a hearing is gonna be less risky. The leak – including the temptingly tendentious timing – put the GOP in quite a bind.

                    5. Feinstein is very savvy with lots of experience. The more I see, the more I think she planned a last minute strike with this accusation and witness.
                      When asked about her thinking about not bringing the existence of an allegation up in closed session, or in private meetings, she conveniently does not remember.
                      Ford may have been unwilling to come forward unless it were absolutely necessary.
                      Plus Ford had been provided a lawyer, expert, in such cases to be persuasive if the need arose.

                      I’d say that Diane planned and executed the action extremely well. The CA D party is rather stupid denying her its endorsement

                    6. It’s not, but holding a hearing will not produce any evidence that changes the choices in even the tiniest way.

                    7. It’s not, but holding a hearing will not produce any evidence that changes the choices in even the tiniest way.

                    8. If the GOP wants to go with ‘this is already decided, suck it’ that’s a fair play. May even work out for them. They hold all the cards.

                      But anyone arguing that the hearing is over and it’s too late is not making a serious argument.

                    9. “But anyone arguing that the hearing is over and it’s too late is not making a serious argument.”

                      Why not? If she wanted to testify, she could have testified. If the Dems wanted to hear her testimony, they could have put her on.

                    10. Because the equity here isn’t whether to let the Dems have their minor win or not. Like it or not, the public scrutiny makes that a loser for the GOP.

          3. You mean, “she said; they said.”

      2. There are therapist notes from 6 years ago describing the incident. They don’t mention Kavanaugh by name, but the description is pretty consistent. Which would eliminates possibility of a pure partisan confabulation.

        Now there’s a possibility that her memory of the incident morphed over time and became fundamentally inaccurate.

        There’s also a possibility that Kavanaugh was blackout drunk or has simply forgotten (which would be disturbing in its own right).

        But it seems pretty certain that an incident of some kind did occur.

        1. Which would eliminates possibility of a pure partisan confabulation.

          No it wouldn’t. It’s entirely consistent with a pure partisan confabulation set up in 2012, which could not be used because Obama beat Romney. But which can be dusted off now.

          Indeed the fact that therapist’s notes apparently mention four unnamed people means that she would have a well prepared smear for pretty much anyone of the right age who grew up in the DC area, not just Kavanaugh.

          So the 2012 therapist session is pefectly consistent with

          (a) a failing marriage and a scary genuine memory revived from 30 years previously, and
          (b) a well prepared 2012 smear repurposed to 2018

          1. Did you really type that with a straight face?

        2. “pretty certain”

          What day did it happen?

          1. Are you taking the position that you can remember the date of every event you clearly remember?

            1. What month was it? What year was it? Whose house was it? Who else was there? How did you get to the house that night? How did you get home after the alleged event?

              Yeah, I could remember those things. In fact I can remember things like that from informal house parties when I was a teen.

              1. From 30 years ago?

                Some time those things stick, some times they don’t. There’s lots of stuff that gets muddled over time, and that’s just ordinary events. Traumatic stuff, the main events might be clear but the secondary stuff might get overshadowed or lost as you try to suppress the main memory.

                There’s a ton of research showing how unreliable memory really is. Her not remembering those secondary details is fairly plausible to me, as is him doing the crime and forgetting it.

                1. I love that the idea that the incident never happened isnt even entertained. Only plaisible options for you are he forgot or she made some minor errors.

                  She has provided three differing numbers of people in the room. The ONLY remotely close thing to evidence she provided has been wrong TWICE.

                  This is more likely a fabrication than anything else.

                2. Actually the research on memory shows that emotionally intensity at the time improves subsequent recall. She’s the one arguing emotional intensity but can’t recall any important details, including, apparently, whether it was two or four guys.

                  (As far as memory, it’s long been known that the more links you can make to a fact, the more you will remember it. Research has unsurprisingly shown that emotionally intense events produce particularly sharp links. So the deeply repressed memory trope of traumatic events is just a fantasy. Shallow repression events does indeed happen, boiling just below the surface, but deep repression does not tend to happen outside of actual brain damage/disorder.)

                  1. I’m familiar with research on memory, along with the tendency of the very act of recalling memories to change them. There’s nothing inconsistent or suspicious about her account, it’s entirely what you’d expect if she were telling the truth.

                    And by her account she wasn’t actually confused about 2 vs 4 guys, the psychologist is the one who made the error in dictation (there were 4 guys at the party, 2 in the room).

              2. When I was a kid, a friend of mine broke into my family home when my family was away and stole my coin collection. It was traumatic and I felt violated. Today, in 2018 (ie, 30+ years later) I have NO IDEA what year this theft occurred in. I can tell you what desk drawer my proof sets were in. I can tell you the color of that desk. But I would need a 5 year window to be confident that I am guessing the correct year.

                I can remember about 10% of the parties I went to in high school (in terms of whose house it was). Parties at friends’ houses? Sure. But at friends of friends? Nope, not a clue. There is not a single party during that period where I have an actual memory of how I got to that party. Today, I have no recollection of what parties I drove home from, the ones where friends drove me home, the ones where my older sister picked me up. I remember having to take a taxi home from one party, but don’t remember the location, the year, of what type of party it was. (And I did not drink alcohol, so all this mental fuzziness is due to the passage of time, and not due to being drunk on the nights in question.)

        3. Consistent? She has now come out with three separate matrices of people present at the party in question. She isn’t sure on the year, month, or day of the week it occurred on. Its about as solid as a newborn’s stool. Much more consistent is the idea that she came up with a bullshit answer in couples therapy to a question about intimacy issues in her marriage and then repurposed it as a political bludgeon come the kavanaugh nomination.

          1. I don’t know if she’s telling the truth. But you’re sure she’s lying!

            If she’s so inconsistent then the investigation and hearing will be easy and make the Dems look bad, no?

            1. I don’t know if she’s telling the truth. But you’re sure she’s lying!

              All anybody can do is evaluate based on the available information. Kavanaugh has his reputation (back to high school) on his side. The absence of any other behavior remotely similar is significant. As for her, the passage of time could work against her, since memories that old are frail. She cannot remember how she got to the party, how she got home, or even the year. Also her failure to mention it to anybody else at that time could work against her assertion that it was as serious as she now says it was. I understand that many differ on this point. She said she didn’t tell anybody at the time because “this is nothing.” “My biggest fear was, do I look like someone just attacked me?” she said, adding she remembered thinking: “I’m not ever telling anyone this. This is nothing, it didn’t happen and he didn’t rape me.” Now it is not nothing.

              She said that Kavanaugh went to an “elitist” boy’s school, a term showing resentment. The fact that Feinstein did not act on this immediately could imply that she did not find the story credible. Two other people she says were there deny it, including one she claims was a witness, who said that the story is “absolutely nuts.” Why should we take her word for it over the words of three other people, all of whom are believed to be trustworthy?

              What’s your take on it?

              1. Incentives she has for embellishing the event: (a) this keeps Kavanaugh off the Supreme Court, a prime objective of the left, and (b) this turns her into a high profile women’s rights heroine, consistently asked (and paid) to speak at various events, and receiving adulation from strangers.

                1. My take is I don’t know what happened.
                  Your take is a cockamamie ‘weighing of the evidence’ that is a combination of speculation and reputational faffery and unsurprisingly reaches the conclusion you want to reach.

                  You are being as close minded as anyone who says ‘always believe any woman who comes forward’ folks.

                2. My take is that traumatic memories not involving head trauma are really fucking clear. I base this on one car accident when I was 5, 2 bike accidents, one when I was 8 and the other when I was 13, and one incident of an asshole slapping hot glue on a piece of tape on my back while I was wearing a really thin t-shirt during woodshop.

                  1. Way to universalize your own experience.

    7. An unverified account with no contemporaneous discussion with anyone is a disqualification for a SC justice,

      But two well documented assaults is a qualification for Minnesota Attorney General?

    8. How would YOU handle a false accusation?

      If I said “you raped a toddler” you eeouldnt, unequivocally, say the charge is bullshit?

      And why is he saying “it didnt happen” troubling to you…but her saying nothing about it for 30 years and providinv no evidence now for it not?

      1. Also, it happened on no specific date, so you can’t find evidence you were somewhere else that day. And it’s a last minute accusation, so you don’t have time to defend against it.

      2. If someone swore out an accusation within the statute of limitations, there would be a hearing, regardless of how long the victim had waited.

        If it was after the statute of limitations, the state won’t hold a hearing, but my peers sure would make an inquiry at least!

        And the demanding immediate accusations is so troubling to me because that’s been used to silence victims of all genders and doesn’t have any merit to it.

        1. If someone swore out an accusation within the statute of limitations, there would be a hearing, regardless of how long the victim had waited.

          MD has no statute of limitations on sexual assault.

          If it was after the statute of limitations, the state won’t hold a hearing, but my peers sure would make an inquiry at least!

          and if the accusation included nothing as far as WHEN it happened, WHERE it happened, conflicting info on HOW many were involved —- your peers must think nothing of you as a person to continue on.

          1. I took the Virginia Bar, not Maryland, so I don’t know the exact thresholds, but in Virginia IIRC (it has been quite a while and I never practiced crim) if a victim is willing to testify, there is at the very least an investigation.

            1. I took the Virginia Bar, not Maryland

              I’m seeing an excuse here.

              Note: She still hasn’t filed any sworn accusation in MD. Odd, huh?

              Virginia IIRC (it has been quite a while and I never practiced crim) if a victim is willing to testify, there is at the very least an investigation.

              …yet no investigation is ongoing in MD. Truly odd, no?

              1. Based on the the enthusiastic attacks here, I can’t imagine why she didn’t go through the trouble!

                1. Again, if I am the reason she cannot go forward, you speak very poorly of women.

                  1. You are a symptom, not the cause.

                    1. Again, “random commenter on a board stifles a woman’s pursuit of justice” speaks quite poorly of said woman.

                    2. damikesc, surely you realize that Sacrastr0 was speaking to the tendency of politically motivated media personalities and members of the public to turn on the victim and attempt to demonize and discredit her en mass.

                      Not the actions of a single random commenter on a board.

                    3. Explains referring to me., specifically, repeatedly. Even when pointed out how idiotic it is to blame me, specifically, repeatedly.

                    4. The fact you are only 1 out of 100,000 people doing a terrible thing does not absolve you of blame for doing a terrible thing.

          2. “MD has no statute of limitations on sexual assault.”

            I read the MD categories of rape and sexual assault. Given Ford’s statement of how drunk BK and Judge were, it is not clear that even 4th degree assault would have stood up in court if the allegation was contemperaneous.

            Someone experienced in MD criminal law should comment.

        2. And the demanding immediate accusations is so troubling to me because that’s been used to silence victims of all genders and doesn’t have any merit to it.

          “Sure, I get that the guy murdered your husband and children right in front of you. It’s perfectly understandable that you didn’t say a word of it to anybody for 30 years”.

          Sure. Sounds totally rational.

          “Oh, they might get questioned by police” — as if the alternative of just imprisoning people on the word of an accusation is a BETTER option.

          If a “victim” does not go to the police, then no, I do not and will not believe anything they said. It’s very easy to lob accusations when you have zero risk of punishment for lying.

          1. So you are doubling down on being a myopic dick and arguing women make up rape accusations all the time because there are no consequences. When this here thread, and you especially, are pretty strong proof that there are consequences.

            1. Sarcastro, women DO make up rape accusations all the time. It’s an established fact.

              You’re just engaging in denial, it happens all the time.

            2. So you are doubling down on being a myopic dick and arguing women make up rape accusations all the time because there are no consequences.

              So, rape is the ONE crime where nobody makes false accusations?

              I guess those Duke lacrosse players REALLY did rape Mangum, eh?

              When this here thread, and you especially, are pretty strong proof that there are consequences.

              “A random guy in SC might think I’m lying — so I won’t do anything for decades”?

              I am why women won’t go to the police?

              Again, you’re making the strongest case I’ve ever seen for patriarchy.

              1. False accusations are an issue, but it’s not generally something one assumes off the break.

                Except, of course, for this one crime…

                1. “Except, of course, for this one crime…”

                  Yup. If somebody suddenly claimed that he’d mugged them 30 years ago, that would have tanked the nomination. Or if a bank teller had suddenly remembered, without evidence that Kavanaugh had robbed her bank, afther Kavanaugh had been picked for then seat, nobody would have questioned her. In fact the only accusation that would be taken seriously after 30 years is… this on crime. Feminists are so full of shit.

                  1. You have switched the thesis, and none to deftly. TiP.

                    The comment I am responding to tried to argue that I had a double standard about false accusations. I argued that in fact the double standard points the other direction.

                    As to your discussion about the timing of testimony, there history as shown us that sexual crimes are special. Or are you going to start pointing figures at all the former altar boys as well?

                2. If somebody said “Kagan murdered somebody, 10 years ago, somewhere in Maryland”, i would discount it heavily.

                3. False accusations are an issue, but it’s not generally something one assumes off the break.

                  No body is presented and a murder accusation gets no plausible support either.

          2. Ok, I think people are getting distracted by the broader “false accusation” debate. The reason this “false accusation” claim is pissing me off so much for this particular accusation is the fact that it’s completely inconsistent with this accusation.

            1) Why would she start the false accusation by planting it in the therapist’s office 6 years ago. That’s a hell of a lot of patience and foresight.

            2) If she wanted to tank the nomination or had some other nefarious goal then why not claim an actual rape? It would be just as hard to prove and be way more damaging.

            At this point it’s entirely plausible that people will generally believe her but the GOP will still confirm Kavanaugh because it’s “just an attempted rape”. If she said it was an actual rape Kavanaugh might already be done.

            3) Why put another witness in the room at all? Now you’re just creating another person willing to contradict you.

            Seriously, give your head a shake. A false accusation doesn’t make sense.

    9. Sarcastro, just because you were caught fucking platipodes behind a convenience store of some sort between 10 and 12 years ago in front of four, no two other guys, no three other guys and a girl is no reason to be angry.

  2. The accusation has already served its purpose. If the GOP push for confirmation without further hearings, they will be child molesters of the worst sort, even more than Bill Clinton and Harvey Weinstein. If the GOP hold further hearings, and then proceed, they will be sorse than that, they will be covering up out in the open, confessed child molesters, worse than Harvey Weinstein and Bill Clinton. No, the only fair result will be to toss this nomination, and even then, unless Kavanaugh resigns, it will still be a sham process.

    1. “The accusation has already served its purpose.”

      Exactly.

      1. The real goal is to stop, or at least delay until after the election.

        It would be nice if the motivating factor were really concern for the woman, rather than it just being a convenient and (sarcastically) lucky thing to have happened.

        It has completely taken over from “Docs aren’t being released. Honor demands you should ask your nom. be put on hold.”

        Only the names and parties have changed, not the operational political behaviors.

        “Is this serious thing really real? Yes! Yes! Yay!” (camera swings over) “I mean ohhhh, awww, this poor woman.”

        1. Does your speculative telepathy change whether it’s worthwhile seeing if this thing happened?

          1. If it really is worthwhile, why was it sat on since July?

            1. Victim’s request.

              That’s one part I completely buy.

              1. Strangely that’s one part I completely don’t buy.

                1. she contacted the WP on a tip line, before she contacted Feinstein
                2. she got herself polygraphed
                3. she hired a lawyer

                None of these are consistent with a deep desire to maintain anonymity.

                And Feinstein released the allegations anonymously, when she got round to releasing them. She could just as well have released them anonymously in July in plenty of time to ask Kavanaugh about then in the hearings.

                And there’s a clear motive to wait until now before raising the allegations. The Dem strategy throughout has been delay delay delay because they lack the votes to stop stop stop. Because with the passage of time something might turn up. A Senator might die, an election might go well. Having failed with the hearing circus, now’s the time for a Hail Mary. And it’s a good one. The GOP are in a bind. Submit to the delay trick and postpone the vote, or go ahead on schedule and fuel adverts for the midterms.

                1. None of those are inconsistent with maintaining anonymity, either?

                  Regardless, the question here is whether it’s credible Feinstein would wait at the alleged victims’ request. That seems a slam-dunk yes to me, regardless of the timing.

                  1. Yeah, all of those are inconsistent with a desire to maintain anonymity.

                    Even more though, Feinstein had a duty to reveal that, if the allegations were true, should have trumped the victim’s desire for anonymity. There is no plausible explanation other than political gamesmanship that justifies delaying the release until when Feinstein did.

                  2. No they’re inconsistent. Insofar as a polygraph test is on any value anyway, it is of zero value if the person doesn’t come forward. It smacks strongly of battlefield preparation.

                    And if you wish to remain anonymous you don’t give your details to a newspaper tip line. That’s quite different from whispering to a journalist in a darkened garage.

                    I’m willing to buy her having a mild preference for anonymity, so long as she got her man. Which is consistent with her coming forward when the anonymous allegation was obviously fizzling out. But there was no reason not to go public – anonymously – in July. Except politics. This plays well for the Dems for November because it puts the GOP between a rock and a hard place. Which – obviously – is further evidence for the prosecution. The timing is SO convenient for the Dems that the Bayesian probability of this being just a partisan hit job goes through the roof.

                    1. The Dem strategy throughout has been delay delay delay because they lack the votes to stop stop stop. Because with the passage of time something might turn up. A Senator might die, an election might go well. Having failed with the hearing circus, now’s the time for a Hail Mary. And it’s a good one. The GOP are in a bind. Submit to the delay trick and postpone the vote, or go ahead on schedule and fuel adverts for the midterms.

                      True enough. What better strategy was available?

                      And of course the GOP strategy was to rush, rush, rush, conceal as much as possible, because, as you say, with the passage of time something might turn up. A Senator might die, an election might go well (badly). Better to get it done.

                      Now, the hearings are always a circus – lots of posturing and bloviating all the way around. I recall Hatch, one of the champion poseurs, spending five minutes asking Kavanaugh whether, in applying a statute, a judge should go by the meaning of the statute or his own preferences, which induced the expected pieties in response from Kavanaugh. Just an example. So what?

                      Are you complaining that it’s unfair for the Democrats to play some politics here? Sure, if it’s a partisan hit job, a trumped-up lie, it’s unfair. But it isn’t. Among other reasons, that would be a very bad play.

                    2. The Dems can play whatever politics they like. The question is whether the fact that this plays well for the Dems tells us anything about the probabilities of this being a partisan hit job. And the answer is that – obviously – the better it plays for the Dems, the more likely it is to be a partian hit job.

                      “But it isn’t” – says you.

                      Among other reasons, that would be a very bad play.

                      It would be a very bad play if it were conclusively proved to be a partisan hit job, and if DiFi had no escape route. But neither condition applies. It is extremely unlikely that this allegation could be proved to be true or false. And even if it were proved false, DiFi can say – well, what was I supposed to do ? Ignore it ?

                      So it’s a free shot.

                    3. “I’m willing to buy her having a mild preference for anonymity, so long as she got her man.”

                      That’s how Anita Hill tried to play it too.

                2. Lee Moore, was she anonymous on the WP tip line?

                  As for 2 and 3, I’m guessing the order and the causality were reversed. She got herself a lawyer, and the lawyer made passing a polygraph a condition of taking the case. Just a guess, of course.

                3. Feinstein is very savvy with lots of experience. The more I see, the more I think she planned a last minute strike with this accusation and witness.

                  When asked about her thinking about not bringing the existence of an allegation up in closed session, or in private meetings, she conveniently does not remember.

                  Ford may have been unwilling to come forward unless it were absolutely necessary.
                  Plus Ford had been provided a lawyer, expert, in such cases to be persuasive if the need arose.

                  I’d say that Feinstein planned and executed the action extremely well. The CA D party is rather stupid denying her its endorsement

          2. Sure it is worthwhile. But I am not secretly jumping for joy it may have happened.

      2. Ryan and McConnell should announce post-election sessions right now.

    2. In the meantime, accused abuser Keith Ellison was elected by Minnesota Democrats to be attorney general:

      Bernie Sanders has ‘nothing’ to say about Keith Ellison’s domestic abuse allegations

      Vermont Sen. Bernie Sanders has “nothing” to say about domestic abuse allegations against one of his closest political allies, Minnesota Democratic Rep. Keith Ellison.

      Ellison, the deputy chair of the Democratic National Committee (DNC), is accused of physically and emotionally abusing his ex-girlfriend, Sierra Club activist Karen Monahan.

      “Nope, nothing. You’ll excuse me, I’ve got to get going,” Sanders told The Washington Post on Thursday when asked if he has anything to say about the Ellison allegations.

      Ellison won the party’s nomination for Minnesota attorney general Tuesday despite Monahan’s allegations, which he has repeatedly denied. Sanders campaigned for Ellison in Minnesota in July.

      Democratic Sens. Kamala Harris of California and Claire McCaskill of Missouri were similarly noncommittal when the Post asked about the Ellison allegations Thursday.

      1. Except your very story calls out how much more of a hearing the Ellison allegations are getting from the left than Kav’s are from the right.

        1. Gotcha: You want hearings, but you don’t want them to have any consequences.

          Well, in that case, let’s confirm him, and do the hearing afterwards, when there’s no time pressure.

          1. Brett, hearings sometimes being without consequences is how due process works!

            Once the inquiry began, there were some pretty good holes poked in the Ellison allegations, as I recall (there was supposedly some video, then she said her computer got hacked, then there was never a video…)

            If the same happens with Kav, then OK. But step one is that there be a hearing, no?

            1. No, actually, unless she presents some evidence to get over the threshold consideration of, “Why exactly should we believe you?”, step one is to have a confirmation vote.

              1. There is a 2012 account that corroborates, so this ain’t nothing.

                I could be wrong about this, but when it’s he-said she-said, and the victim takes the step of coming forward, they put them both on the stand and check credibility, no?

                1. There is a 2012 account that corroborates

                  It’s only off by a factor of 100% on the number of people involved.

                  Mind you, it is LITERALLY the only thing she presented that any possibility of being corroborated.

                  1. Haha, that’s some good math! That’s not the traditional way you evaluate such things, but you are clearly on a roll.

                    As I said right above, even if she didn’t have the corroboration, there would be a hearing if she had the guts to come forward. Given the (as expected) partisan targeting, that’s even more the case.

                    1. Haha, that’s some good math! That’s not the traditional way you evaluate such things, but you are clearly on a roll.

                      Her entire claim had ONE potentially verifiable piece of information.

                      The number of people involved.

                      It was off by 100%, according to her.

                      So, what value is this corroboration?

                      As I said right above, even if she didn’t have the corroboration

                      Outside of colleges, no. They would need SOME evidence.

                      Such, as you know, when and where it happened.

                    2. “Haha, that’s some good math! ”
                      Usually we would say the the report is factor of two (or 200%) in disagreement.

                    3. “Haha, that’s some good math! ”
                      Usually we would say the the report is factor of two (or 200%) in disagreement.

                    4. “Haha, that’s some good math! ”
                      Usually we would say the the report is factor of two (or 200%) in disagreement.

                    5. I always say ‘to within order unity’ and leave it at that.

                    6. She remembers another fact: that she had one beer. Not two beers, or no beers, but one beer. But who else was at the party, and what she did after the “incident” (whether she hung around, or ran out the door, or went home, or…) she has no idea.

                2. “There is a 2012 account that corroborates, so this ain’t nothing.”

                  6 year old hearsay documentation of the accuser making the same accusation of a 30 year old alleged rape in a different context is not corroborating evidence.

                  1. Hearsay can be used to corroborate, MS.

                    Come on, man.

                    1. “Hearsay can be used to corroborate”

                      Maybe, but only if the hearsay is about something other than the accuser repeating the same accusation you are trying to corroborate.

                  2. And there’s a clear motive for preparing a Kavanaugh smear in 2012.

                    1. Without using his name? That’s a longshot, Lee!

                    2. No it works even better without a name. Smear preparation that can be used against any Repubican nominee of a suitable age who grew up in the DC area is even more useful than smear preparation against a particular target. Even if she was actually thinking of Kavanaugh as a target after the NYT mentioned Kavanaugh as Romney’s prime SCOTUS pick in 2012, it would still be more useful to prepare an area bomb than a rapier.

                      And as I’m sure you appreciate from your own life, dusting off our failures to use in more propitious circumstances is a good tactic. Thinking up completely fresh tricks is really hard work. If you’ve done the ground work already, why not use it ?

                    3. Oh come on, Lee. This is ludicrous on the face of it.

                      “Smear preparation?” Really. You’re smarter than that. Really.

                    4. So if I understand you correctly, you are not so naive as to believe that no one ever smears their political enemies, but you do consider it unthinkable that anyone would put in any effort into constructing a beleievable one ?

                      Good luck with that.

                  3. ===6 year old hearsay documentation of the accuser making the same accusation of a 30 year old alleged rape in a different context is not corroborating evidence.===

                    It does mean she didn’t just invent it.

                    1. How is that the case?

                      Robert Reich wrote about a meeting in his diary. The meeting was broadcast on CSPAN, which he forgot. His diary reflected virtually nothing real as far as what happened.

                      Somebody saying something happened doesnt mean they didnt make it up. It happens a lot.

                    2. “It does mean she didn’t just invent it.”

                      If by “just”, you mean “at this very moment”, and by “it” you mean “something bad happened to me”, yes you’re right.

                      If instead, by “just” you mean “merely”, or by “it” you mean “Kavanaugh did something bad to me”, no, you’re wrong.

                      The “recollection” of six years ago did not have a name associated with it, much less Kavanaugh’s, and had 100% more boys associated with the outrage, two now versus four then. There was otherwise no other meat to the recollection that an be used to either validate or invalidate it.

                      Incidentally, Kavanaugh’s name had already come up then in the context of who Romney might nominate to the SCOTUS if he became president, even if it went unmentioned then to her therapist. She has clearly proven herself very politically aware now, and no reason to believe that this poilitical awareness is new, especially given her chosen profession.

  3. This issue–long past, adverse, events coming back to haunt someone–will only become more prevalent with everybody’s peccadillos and actual criminal activity being captured via smart phones.

    The Internets never forgets.

    1. Well, yes, and we have already seen how stupid things is catching up with young athletes. Just a matter of time for politicians as well I suppose.

      But at least then we’ll know something happened. Or we’ll be able to see something that will lend credibility one way or the other. Though I suppose we’ll all just try reading things into Twitter and Insta postings like we do now.

      Whichever result, it has to be better than the “I’m coming forward now, 36 years after the fact.” Even her first report of it was 30 years after an incident in which she was admittedly under the influence of alcohol. Obviously, these are extremely serious allegations. But 30+ years of fading memories are really hard to ruin somebody’s career over. (After all, if he’s not fit for the Supreme Court, how can we let him stay on the Federal Circuit?)

  4. If true, it’s “over the line” behavior of high school kids 35 years ago. If you’re taking it seriously, you’re not a serious person.

    High school kids do dumb things. Some behavior they think will be fun, turn out not to be fun or wise. If the whole thing is completely true, an apology may be in order at this stage. And that’s all.

    But there’s no objective reason to believe it’s true, or to believe it’s false.

    1. If it is true, it absolutely is disqualifying.

    2. What the other David said. I did dumb stuff as a teenager. Especially while drinking. But I never attempted to at a minimum grope, and at worst rape, someone.

      It’s not the alleged actions that are at issue; it’s whether the allegations are sufficiently credible to act upon.

      1. How in the world do you decide “whether the allegations are sufficiently credible to act upon”? Just because someone *says* it happens and there’s no way to prove it did *not* happen? Just because the few prior recounting *didn’t* accuse someone else (but also didn’t name the accused)? If one of your high school classmates (irrefutably went to the same school at the same time as you) came forward more than three decades later to accuse you of rape, what would make her “sufficiently credible”? Would she ever *not* be “sufficiently credible”, as long as she didn’t clearly make something up (like “it happened in [building that hadn’t been built yet]” or previously telling someone it was done by [not you])?

        1. How in the world do you decide “whether the allegations are sufficiently credible to act upon”?

          If an assault victim did not tell her closest friends at the time, then this suggests that she did not regard whatever happened as a serious matter. Also, if Kavanaugh acted this way once we would expect to see evidence that he acted the same way toward other girls.

          1. If an assault victim did not tell her closest friends at the time, then this suggests that she did not regard whatever happened as a serious matter.

            Come off this. It’s like a 1980s understanding of how sexual trauma works, and it’s not a good look.

            1. Memories both fade and distort over time.

              Testimony (formal or informal) closer to the event has to be more accurate. Informal testimony at the time bolsters the idea that the story is true.

              1. All that is true. But lack of bolstering is not the same as being discredited.

                1. Sarcastr0: Must the woman’s statement be discredited? Are you placing a positive obligation on the accused to disprove their accuser’s claim? (After 35 years, it’s pretty much impossible under most circumstances, wouldn’t you say? Can one be expected to muster all of one’s friends and acquaintances to say that they can account for all of one’s movements for an indeterminant number of years and they can affirmatively state one never had time or opportunity to commit sexual assault? [If an accused did, surely their witnesses would be easily impeached.] Is the failure to provide comprehensive home movies of the target few years of one’s life, thus negating an accusation equivalent of “proving” an accusation? What is enough? And, is the “enough” that you describe even possible in the majority of cases?

                  1. We, as a society, put the threshold of inquiry at a woman coming forward and swearing an oath this happened.
                    There is a lot of question whether that’s the right threshold, and you can find activists on both sides arguing to push it this way or that. That itself speaks to this being a decent compromise, if nothing else.

                    As for how you disprove, the burden is on the state to prove that. In this case, there isn’t such a burden; just political prices to pay.

            2. Come off this. It’s like a 1980s understanding of how sexual trauma works, and it’s not a good look.

              Failure to make a formal accusation is easier for me to understand than failure to even discuss it with close friends, but I am open to evidence that a significant number of assault victims do not discuss it even with close friends.

            3. “Come off this. It’s like a 1980s understanding of how sexual trauma works”

              As opposed to the 2018 understanding, which is that whatever the victim does, it bolsters her credibility.

              1. If only there were other ways to access credibility than playing speculative games about what’s normal when you’re raped!

                1. I’m not sure what you mean. There is no magical way to assess credibility, for rape accusers or anybody else. You pretty much have to try to figure out if they are acting like someone who really experienced what they claim to experience.

                  1. I don’t believe that’s the usual practice investigators take. Instead, you check for consistency of the stories. Canvassing, questioning and re-questioning both parties.

                    Isn’t it basically common knowledge that contemporaneous denouement is not a useful tool at all?!

                    1. “You check for consistency of the stories” REALLY?? For events 35 years in the past?? I have to say that I once represented a construction company in a crane collapse case (no injuries, but the neighboring dress shop had their stock ruined when a load of dry wall came through the ceiling). Only*2* years after the incident, we deposed all the workers who’d worked the job. Out of 23 workers, only 10 correctly recalled that the two buildings shared a wall. Quite a number of the workers stated there was an alley between the buildings and recalled driving their work trucks through the alley. Moral of the story–memory is fragile.

                      As for consistency, it’s impossible to tell the difference between truth and a lie told with details so *vague* (can’t say date, or month or year or location) and so distant that, as a practical matter, the lie prevents contradictions from appearing. What, barring time travel or having filmed the entirety of the three years that this one event *might possibly* have taken place in, can one do to protect against well-crafted and *consistent* falsehoods?

                    2. Really. Cold cases are hard.

                      But honestly, I find it hard to believe so many people suddenly think contemporaneous demeanor(sic) is how you tell a alleged victim’s credibility.

                  2. To do that, in good faith you have to make an effort to understand, sympathetically, how the survivor of a sexual assault might typically behave, within a given range. But that might, as you say, bolster her credibility, so you won’t want to go doing that.

                2. If only there were other ways to access credibility than playing speculative games about what’s normal when you’re raped!

                  She wasn’t raped, and the burden of explanation is on those who assert that a victim did not act the way that most people can be expected to act. For example, most people will mention their ordeal to close friends. What percentage of assault victims do not?

                  1. We’ve been over this swood.

                    Your ‘most people’ is unsupported. And also not actually probative even if it were true. And also perpetuating a damaging preconception. And you should stop it.

        2. Lots of things could affect it. What does the guy who was alleged to have been standing guard say? Do others even remember the party? Do others remember her saying something, but about a different person.

          Honestly, I can’t see much likelihood that it would ever be sufficiently credible 36 years later. That’s why it would never be prosecuted. But since we’re not in criminal law, it’s fair to test it a little. If we’re not finding something solid soon, then I think we say it’s not sufficiently credible and move on. Not sure what that threshold is, but it does exist.

      2. The time to take it seriously came and went 30+ years ago. It’s is/was potentially serious at the time — if it happened. Now it isn’t. Because 35 years passed.

        There’s no action to be taken, regardless of credibility.

    3. If the whole thing is completely true, an apology may be in order at this stage. And that’s all.

      Well, I think an apology would have been in order some years ago. Offering one now wouldn’t look particularly sincere, would it?

      But it would probably work. But Kavanaugh is denying it. OK. Maybe it didn’t happen or – a more plausible claim – it did but Ford has misidentified her attacker. But if it did happen the way she says he has left himself with no options.

      1. Why do you think it’s more plausible that she misremembered than that it never happened ?

        1. Well, if it didn’t happen, she made up stuff to tell her husband and her therapist. Seems unlikely. How many people do that? Or do you truly think she was preparing this false accusation that long ago, just in case Kavanaugh was nominated to the court?

          OTOH, memory does fail sometimes, and people are misidentified. It’s not all that rare.

          1. “How many people do that? ”

            Lie to their spouse? 99%

          2. Or do you truly think she was preparing this false accusation that long ago, just in case Kavanaugh was nominated to the court?

            That sounds like you think that’s absurdly unlikely. But is it any more unlikely than that Kavanaugh tried to rape her a long time ago ? Both seem unlikely possibilities, but one of them is true, if we leave out the third possibiity which is that she’s misremembering. If we tot them all up, they need to add up to 100%, so the perception that they’re all very unlikely is mistaken.

            If this is a false accusation, the unlikeliness arising from it being a long time ago is much reduced by the knowledge that the therapist session took place in 20012 when the NYT was reporting that Kavanaugh would be Romney’s first pick for SCOTUS. If it had taken place in 2009 that would make a difference. 2012 is an interesting date for it to have happened. And as I mentioned to Sarcastro, a smear prepared against four unnamed people is more useful than a smear prepared against one named guy who might never be nominated to anything.

            So for, he’s an attempted rapist : she’s confused : she’s a liar, I’m going for 5% : 15% : 80%

            1. But is it any more unlikely than that Kavanaugh tried to rape her a long time ago ?

              Drunk, horny male high school student tries to rape girl at a house party. Doesn’t seem like something that never happens.

              College professor reads about Kavanaugh as a possible SCOTUS nominee and decides to fabricate a story about an attempted rape, tells it to her husband and therapist, and saves it up for future use.

              Seems like something that a stable person would never do. Despite assurances from Bellmore and maybe others here that it is inevitable for any Trump nominee, no such accusations were made against Gorsuch.

              1. College professor reads about Kavanaugh as a possible SCOTUS nominee and decides to fabricate a story about an attempted rape, tells it to her husband and therapist, and saves it up for future use. Seems like something that a stable person would never do.

                We’ll beg to differ. Seems perfectly possible once you stir in :

                (a) political motivation
                (b) Presidential elections occuring in years divisible by 4

                And we can dial down the horny college frat boy probability by noting the unlikelihood of his victim being a future left wing Professor. As I mentioned elsewhere if she didn’t have a political or financial motive, the probability of her lying would be lower.

                1. Anyone who doubts Lee’s sincerity should check the figures on people who believe Obama was born in Kenya, people who believed the Pizzagate story, people who believe our environmental problems will be solved by a Rapture, people who believe Obama is a Muslim and communist, people who believe climate change in a Chinese hoax, and people who believe Donald Trump.

              2. Gorsuch was replacing Scalia, he didn’t shift the Court, so lower urgency.

                Kavanaugh is replacing the notorious squish Kennedy, so he will shift the Court. Greater urgency, so they’re pulling out all the stops.

            2. Drunken rape attempts are, sadly, not equally as unlikely as years-long schemes to plant fake attempted-rape stories to derail SCOTUS nominations. It’s weird to have to say that out loud to an ostensible adult person.

  5. I’ve spent part of my morning being shouted at on a (more liberal) blog for arguing that:

    – A single instance of sexual assault (or even murder) 30+ years ago when the person was a teenager should not disqualify the person for any office.
    – Whether there is only a single instance of anything is very much something that the Senate should investigate. The threshold of proof is whatever satisfies the Senators, but at a minimum they should create an atmosphere that encourages any other victims to come forward.
    – Lying about having committed a felony, and particularly lying under oath, should definitely disqualify someone from judicial office. Presumably Judge Kavanaugh understands how to plead the 5th.

    1. “Presumably Judge Kavanaugh understands how to plead the 5th.”

      How could he do that even if he wanted to? Politically its an admission.

      1. Still better than a Supreme Court Justice (or Court of Appeal Judge) who is prepared to lie under oath. Proper respect for legal proceedings may well be the one requirement for a judge that everyone can still agree on.

  6. As far as Judge Kavanaugh goes, it wasn’t 100% that he was going to be approved anyway and now, procedure, retiring GOP senators, anti-Trump/GOP voting (mid-term election), will probably sink him.

    If he had time, he could have come out with a statement about being immature, contrite, have treated women respectfully, etc., and he probably would have passed.

    Now…nope.

    1. “it wasn’t 100% that he was going to be approved anyway””

      Sure it was. Collins was a for sure yes, she was just going thru the independence motions.

      50 plus Pence right there.

      1. I’m with Bob on this one. He was a shoe in. Now I still give him 70%.

        1. Which is so stupid, because, did anybody not expect something like this?

          1. After-the-fact ‘I always knew this would happen’ is a pretty funny bit.

            1. If he isn’t confirmed, and Trump then nominates Kethledge or Hardiman in time to be confirmed by the end of the year, I hereby predict, indeed guarantee, that there will be a sexual allegation against the nominee.

              1. Ballsy. I like it!

                1. Are you allowed to say “ballsy” these days ? Isn’t it a wee bit genderist ?

                  I know a couple of gals* who I properly describe as having “balls of steel” and they treat the expession as a compliment, but I feel sure that there are hundreds of colleges you could be dismissed from for suggesting even a metaphorical connection between courage and testicles.

                  *Indeed I went out to lunch with one of them yesterday. She told me a good story about her being accosted by a group of knife wielding robbers in South Africa a couple of years back. She talked some sense into them and then took them to McDonalds for a meal.

                  1. I tune my vocabulary to my audience.

                    But I do fund the word ballsy pretty amusing.

              2. Trump does seem to have a fondness for the type, yes.

            2. I didn’t know it would happen, but I sure knew it could happen. Didn’t learn anything from the Roy Moore mess?

              All the women went away as soon as he lost the election. Strange, that.

              1. This is exactly why an accusation by one person from 36 years ago without any details doesn’t matter. If she had a time and place? Then maybe we look closer. But with the other people who were supposedly there denying it I fail to see how a hearing will solve anything.

                And if she is found to be not credible, what consequences does she face? Would these be the same consequences faced by Roy Moore’s accuser? Or the lady who lied about the Duke lacrosse team?

              2. Ditto Herman Cain in 2012

              3. Long before Roy Moore, you had then Judge, soon to be Justice, Thomas. The pattern is much closer: wait till after the original hearings are over, leak some info anonymously, when that doesn’t work, call for and get new hearings with the accuser.

  7. How do statutes of limitations factor into this?

    1. In the criminal context, he probably could not be prosecuted even if he were to confess and someone provided a videotape of his misconduct.

      In the civil context, a bunch of stale-thinking losers will contend that the passage of time has made this a non-issue.

      1. I think you mean in the “political/public relations” context; any tort action would be barred by SOL, too.

        1. Good point.

        2. Although she could tag him with a defamation judgment if she can establish that he is lying about her.

  8. If Kavanaugh did this then he did it to others as well and at least one of them will come out. Maybe somebody ought to inquire into those girls who knew him but declined to sign the statement attesting to his rectitude. If nobody else comes out, then maybe Christine Ford’s reaction at the time went beyond how an average person would have interpreted it ? boorish, drunken roughhousing but not attempted rape.
    ?
    If the Republicans lose control of the Senate in November then they have until January 3, 2019 to confirm a Supreme Court nominee. So I would expect the Republicans, if they are not going to withdraw Kavanaugh, to push for a vote as soon as possible. If Kavanaugh is voted down by October 1 then this still leaves them 90 days to nominate and confirm somebody else. Kagan took 87 days, Gorsuch 66, Alito 82.
    ?
    If Kavanaugh is confirmed then he may join Thomas’s implacable hatred of the Democrats, in which case their decision not to report this allegation back in July but to wait until the last minute and then use character assassination will not look like a shrewd choice.

    1. They have until January 3. McC and ryan should announce a lame-duck session.

      DJT should jettison BK next Tuesday morning and announce the selection of Joan Larsen or Amy Barrett on Wednesday morning.

  9. Is Prof. Volokh going to opine on whether a recipient of Judge Kozinski’s Easy Rider Gag List messages could credibly claim under oath to have forgotten receiving any such email or being part of such a distribution list?

    Did Prof. Volokh receive those emails (including headers), or discuss them with Judge Kavanaugh, or have other information that might illuminate the issue of Judge Kavanaugh’s credibility in this context?

    Or will he withhold what he knows of Judge Kavanaugh’s fitness and instead divert attention by launching yet another whining attack on a liberal-libertarian school for perceived lack of devotion to free expression on public issues?

    1. Funny, i am in email chains for my bosses here. Have been for years. I have read literally zero of them in 15 yrs now.

      1. You figure Prof. Volokh doesn’t know about the gag list, doesn’t know whether Judge Kavanaugh was a recipient or participant in the festivities, and never discussed one of Judge Kozinski’s inappropriate messages with Judge Kavanaugh?

        If any of those were true, Prof. Volokh could have been expected to make a public declaration along that line to support Judge Kavanaugh’s candidacy.

        The silence is telling. It tells us about Judge Kavanaugh. It tells us about Professor Volokh.

  10. “If Kavanaugh did this then he did it to others as well”

    Not everyone repeats mistakes made as a kid and if no one else comes forward would that be proof that he didn’t do it since you think people always repeat this behavior no of course not

    1. Not everyone repeats mistakes made as a kid

      People especially don’t repeat mistakes when they were punished for the first mistake, but here Kavanaugh was not. So why should he have stopped? Don’t you think that it is more likely that if Kavanaugh forced himself on one girl he likely did so on other girls? I’m not saying that criminal behavior is always part of a pattern, but it typically is, isn’t it, making it reasonable to expect to see the same behavior at other times?

      1. I’ve done dumb things for which I was not punished, realized they were dumb, and not done them again. Particularly when drunk. Not always criminal things, and certainly nothing to the level of the alleged act. But the suggestion that you would automatically repeat an act absent intervention by the criminal justice system is absurd.

        If it were true, he could have stopped because he realized that he went way too far and could have ruined his and someone else’s lives. (If it indeed happened as alleged.)

        1. But the suggestion that you would automatically repeat an act absent intervention by the criminal justice system is absurd.

          I’m not saying that he would automatically repeat such an act, but if he did such a thing I would expect to see other instances of his being overbearing or domineering, wouldn’t you?

          1. Yes, though there’s a danger in assuming that because someone was overbearing or domineering in other instances, he attempted to rape someone in others. Of course, if there’s no other claim that he was overbearing or domineering in other instances, it would seem odd for him to have behaved as alleged.

      2. Lots of dumb teenagers stop acting like dumb teenagers because they grow up.

  11. Diane Feinstein sat on this ridiculous fabricated accusation since early July and did nothing about it – she didn’t turn it over to the Committee, she didn’t question Kavanaugh about it, she didn’t even ask the FBI to investigate it, until the confirmation of Kavanaugh looked like a foregone conclusion. If this is to be taken seriously, and I don’t think it should, there needs to be a very serious consequence for Feinstein’s complete lack of candor to the Judiciary Committee, nothing less than stripping her of Committee membership and a public censure. Without that, these despicable games by integrity-free Democrats will continue. BTW, if the accuser is going to testify, forewarn her that if the Committee has ANY indication that she is not being truthful, or that she was in any way compensated fot her testimony, she will be prosecuted.

    1. Feinstein, quite rightly, was doing all she could defering to the person who alleges that she was sexually assaulted. You make it sound as though the only motive for respecting the privacy of someone who claims to have been victimized is political. It sure sounds like you have drunk too much partisan koolaid.

      1. The accuser also contacted the WaPo in early July and was doing battle prep [a polygraph] as well.

        The privacy thing was just a red herring

        1. Nothing you’ve said is inconsistent with her wanting to stay anonymous.

        2. How do you know the polygraph wasn’t demanded by her lawyer, as a condition of taking the case?

      2. No, DjDiverDan is making is sound as though the claim of “respecting the privacy” is an obvious falsehood.

        1) Feinstein’s duty to the Senate and to the country outweigh the privacy rights of an alleged victim. Any number of applicable ‘compelled testimony’ analogies could apply.
        2) We know quite well how to protect the anonymity of a victim while investigating someone accused of a serious crime. Courts do it all the time. The FBI has more than a little practice at it.

        There is simply no credible excuse for Feinstein to sit on a true accusation.

      3. David,
        What consideration prevented Feinstein from immediately sharing the information with the FBI?
        What consideration prevented her bring up the issue in private of closed meeting.

        Feinstein answers that she can’t remember. Do you really believe that?
        She is too smart and too experienced to to have played her hand very carefully and deliberately.

    2. ridiculous fabricated accusation

      That’s a remarkably unqualified declaration from a bigoted right-wing dumbass who doesn’t know what he is talking about.

      1. Artie, you have but to remove “right-wing” from the above and it is utterly applicable to yourself.

      2. “bigoted right-wing dumbass who doesn’t know what he’s talking about” – Rev., those are some mighty brave words coming from someone who doesn’t think the Second Amendment is a real right, and hasn’t got the brains God gave a crowbar.

        1. I believe the Constitution protects a right to possess a reasonable firearm for self-defense in the home, you bigoted loser.

          1. Says the Revolting reactionary bigot.

            1. Says the guy who takes capitalization pointers from Donald Trump (or Dan Scavino).

              Why so cranky, Rigelsen? Did some Republican efforts to suppress black voting fall short today? Did an uppity woman get away with something. Did a guy who speaks Spanish get a promotion you wanted? Did you see a black man refrain from lowering his gaze in the company of a white woman today?

  12. My $0.02.

    From what I found on-line Maryland does not have a statute of limitations on felony sexual assault.

    Direct the accuser to the appropriate Maryland DA. If she isn’t willing to press criminal charges, this is a non-issue for the confirmation process.

    After the DA has had a chance to review the case and the available evidence, The Senate (the full Senate, not the committee) should hear from the DA. Does the DA think this is a prosecutable case? Does the DA intend to prosecute?

    1. “appropriate Maryland DA”

      A liberal Democrat.

      Oh, sure, let him decide the nomination. Are you drunk?

    2. Are you a lawyer? Even if not, you still ought to know that the standard of proof in a criminal case, beyond a reasonable doubt, has no relevance here.

      1. “Even if not, you still ought to know that the standard of proof in a criminal case, beyond a reasonable doubt, has no relevance here.”

        I’m not saying it should. I’m saying that baring a criminal prosecution, the whole incident should be deemed to be of no relevance.

    3. With the facts that are known, no reasonable DA would prosecute a 35 year old he-said she-said case with no corroborating evidence.

      However, a DA who is a Maryland Democrat in the current environment? Perhaps he could get advice from Robert Mueller on how to conduct precise and targeted investigations.

    4. Matthew have you read the MD definitions? Such a case probably fails even as 4th degree sexual assault. I’d like to hear a practicing MD criminal attorney comment.

  13. She has 100% total recall of all the details that are incriminating. Almost none about details that would let Kav defend himself, like a date.

  14. A nomination to the Supreme Court is not a property right. And a seat on the court is for life and involves power to make many important decisions impacting others, including sexual assault victims. A mistaken nomination cannot be reversed.

    Preponderance of the evidence is the standard we use to deprive people of property. But because Kavanaugh does not have a property right interest in his nomination and more importantly because a mistake is so costly to reverse, we should not have a preponderance of the evidence standard. This is about whether we are going to grant Kavanaugh substantial lifelong power over other members of society, not about whether we are going to take something away from him.

    If there is even a 10 percent chance that Kavanaugh committee sexual assault, he should be denied a seat. There are plenty of other conservative nominees who have substantially identical jurisprudential views, so this ought not be a partisan issue.

    Furthermore, if Kavanaugh was denied the nomination with a lower standard, that would benefit him, because thr stain on his reputation would be much less. A preponderance of the evidence standard would make it more likely that Kavanaugh obtained a seat on the court. But it would also raise the stakes for him personally.

    1. “If there is even a 10 percent chance that Kavanaugh committee sexual assault…”

      You incentivize future accusations with this weak standard.

      Make an accusation that cannot be effectively rebutted [other than a flat denial] because it is many years old and confirming details [an exact date] are intentionally left fuzzy.

      This will become the norm, not the exception, to controversial nominations.

      1. I would say that an accusation without evidence does not have even a ten percent chance of being true. And I think the cost of false positives is much higher than the cost of false negatives when it comes to Supreme Court nominations.

        1. “an accusation without evidence does not have even a ten percent chance of being true”

          Her only evidence is her testimony. All allegations will have this evidence.

      2. It’ll become the norm from the left with respect to controversial nominations. The right will never play this game.

        1. I dunno. It takes years, but the right wing always gets around to “weaponizing” tactics the left forges. NPR? Create right-wing think tanks to fund blabbery. Capture of news organizations to slant viewpoints? Create Fox News. Social media ostracism? Any time a “leftie” wipes their nose wrong, harp on it for days (see utility of second point).

          Soon Sean Hannity, probably anti-gay rights, is raging purple about how dare Colbert say cockholster — the way men love each other is special and NOT TO BE USED AS A DENIGRATION.

          I’m sorry I’m about to barf from my own cynicism.

      3. Jeez, don’t worry, Bob, the sheer fucking hell the right are going to make of this woman’s life will be the continuing deterrent to victims of sexual assault you’re looking for, I’m sure.

    2. You’ll love it when Republicans start producing accusers for any and all future Democratic nominees.

      Not to mention that Democrats are more at risk. After all, the dark cloud of the War Against Women is forever hovering over Republicans but usually manages to land on Progressives and Democrats.

      New Yorker: Four Women Accuse New York’s Democratic Attorney General of Physical Abuse

      Quotes:
      Eric Schneiderman, New York’s attorney general, has long been a liberal Democratic champion of women’s rights, and recently he has become an outspoken figure in the #MeToo movement against sexual harassment… [to] the distress of four women with whom he has had romantic relationships or encounters. They accuse Schneiderman of having subjected them to nonconsensual physical violence. Two of the women… allege that he repeatedly hit them, often after drinking, frequently in bed and never with their consent. Manning Barish and Selvaratnam categorize the abuse he inflicted on them as “assault.” Both say that they eventually sought medical attention after having been slapped hard across the ear and face, and also choked. Selvaratnam says that Schneiderman warned her he could have her followed and her phones tapped, and both say that he threatened to kill them if they broke up with him.

      1. I do not care that Harvey Weinstein was a Democrat. There are Republicans I respect much more. You are making this into a partisan issue, but that only benefits bad people in both parties.

        I am fine with the standards being the same all around. If there is evidence that makes us believe that there is a 1 in 10 chance that someone committed a sexual assault, I think they should be denied a seat on the Supreme Court.

        1. Who is “us”?

          You are asking for accusation equals guilt standard.

        2. If there is evidence that makes us believe that there is a 1 in 10 chance that someone committed a sexual assault, I think they should be denied a seat on the Supreme Court.

          Ladies and gentlemen: I present a graduate of Harvard Laws School.

      2. ‘When?’ Didn’t Trump, himself accused of sexual assault several times, invite Bill Clinton’s accusers to a debate with Hilary Clinton? Kevin tries to wave the dark cloud in the direction of Democrats and Progressives but it’s permanent residence over the White House.

        And hey, given the right-wing line on this is that it’s a false accusation, and therefore more fake accusations against Republican nominees will be forthcoming, and the current state of conservative ethics is that if we can accuse the left of doing it we can justify doing it ourselves, how long until a right-wing scheme to concoct a false rape accusation gets blown sky-high? I think the backlash would be so enormous, and the whole thing so difficult to put together that it’s pretty unlikely, but jeez, you never know….

    3. re: “A mistaken [Supreme Court] nomination cannot be reversed.”

      Sure it can. That’s what impeachment proceedings are for.

  15. This is Anita Hill all over again – if the Dems can’t stop a nominee they don’t like, they’ll stoop to any level of dishonesty and character assassination to smear that nominee. I did not believe one word from that lying self-serving bitch Anita Hill, and, based on the outpouring of support from over 3 dozen women who have known Bret Kavanaugh since High School, I don’t believe a word from the mouth of this Democratic Party Co-conspirator in slander. What I DO believe is that there is not one single Democratic Senator who has any more integrity than a rabid skunk.

    1. You don’t believe it?

      Well, considering that you have made up your mind without hearing the evidence that only tells us that you are not a credible person and that you can’t be trusted to dispassionately evaluate facts.

      The victim just stepped forward. And her accusations are corroborated by notes taken by her psychologist years before this nomination happened.

      1. And her accusations are corroborated by notes taken by her psychologist

        That occurred in 2012, nearly 30 years after the alleged incident.

        1. That’s still corroboration, Kevin.

          1. No its not.

            Lying multiple times does not make the first lie true.

            1. Why would she lie in 2012?

              1. Because she was in a failing marriage and was in couples therapy .

                She had an incentive to make up or embellish stories to protect her marriage.

                “My sex problems are not that I now find you repulsive, they are the fault of that guy who tried to rape me”.

                The id of the alleged perp could easily be made up. Its the only name she could recall from her high school years.

                So even if something happened to her, naming Kav 30 years later could be a lie. The perp could be some other boy.

                1. But she didn’t even name him then, according to the therapist notes. She didn’t name him until Kavanaugh needed to be defeated.

                2. Pretty dumb to choose a semi-public figure to lie about, then, Bob.

                  This is turning into just speculative character assassination. And you wonder why she wanted to remain anonymous?

                  1. Speculative character assassination you say?

                    1. There’s a lot of room between ‘Kav for sure didn’t do this’ and ‘Kav for sure did this.’

                      You guys are all the way over to the left side of this one, and assume everyone else is all the way over on the right side.

                      All I’m saying is she’s willing to testify; do some investigation, let her testify and see where we are.

              2. Why would she lie in 2012?

                It could have just been a question of over-reaction. What other people would call rough-housing she calls attempted rape. It’s also true that she could have mentioned to somebody in 2012 that she knew Kavanaugh in high school, and together they could have realized that they could keep him off the Supreme Court. In order for their story to have credibility she should take steps to formally establish it by mentioning it in a therapeutic setting with other couples present.

                1. Could be! But then why assume; have a hearing.

                  You keep spinning out these scenarios and grasping at evidentiary straws. But this ain’t a trial; the threshold isn’t reasonable doubt; it isn’t even more likely than not! This is a threshold question, and then we need to investigate.

                  1. “have a hearing.”

                    Talk to Feinstein. She wants the FBI to investigate, no hearings.

              3. Why would she lie in 2012?

                Because she was planning to smear Kavanaugh when President Romney nominated him ?

                1. That’s quite a longshot, there. And quite an assumption about her character, as well!

                  1. You misunderstand the sentence construction. I think it’s much more likely that she’s lying than that she’s telling the truth. But she could be telling the truth.

                    But if she’s lying, there’s an easy explanation for why the lie started in 2012. So if the probability that she’s lying now, given the 2012 therapist report exists, is x%; that doesn’t mean that the probability of her lying would suddenly jump to 4x% if there were no therapist report from 2012. Since the 2012 therapist report is perfectly consistent with what she says it is – a genuine report in connection with a troubled marriage; and also perfectly consistent with a smear prepared in 2012 which was not usable because Romney lost; the existence of the 2012 report doesn’t really have any effect on the probabilities.

                    1. ‘I’m going to set up an assault accusation in case Romney gets into office and the Kavanaugh is nominated’ is rube-Goldberg logic with too many conditionals to hold water.

                    2. The odds in 2012 of Romney getting elected were somewhere round 50%.

                      The accusation at the therapist wasn’t specific to Kavanaugh. It could have been used against lots of alternative nominees for lots of positions.

                    3. You’re going to need a lot more than a few dollars donated to the DNC to make this a credible accusation.

                    4. That’s not an easy explanation. That’s the opposite of easy. That’s an ‘if we rule out murder the easy explanation is the victim stabbed himself fifty times’ type of thing.

      2. The victim just stepped forward. And her accusations are corroborated by notes taken by her psychologist years before this nomination happened.

        The notes said FOUR guys were involved, not two.

        She now says the notes are wrong.

        But only about that.

        Nothing says reputable like the only documentation provided being wrong, according to the accuser, on a very key aspect of this tale.

        1. I don’t think that’s usually enough to completely impeach the corroborating evidence.

          Your eagerness to insist any imperfection means it’s all lies is not doing your credibility any favors, though!

          1. WHAT corroborating evidence?

            She only provided the therapist notes…which are wrong, per her, on very key details.

            What other “corroboration” has she provided? And please dont attempt to sell polygraphs as corroboration.

          2. Those notes aren’t corroborating evidence, under any standard. They are hearsay reports of what the accuser said to a 3rd party 30 years after the fact. Corroborating evidence would be contemporaneous physical evidence, unlikely since it went so long without being reported, or a witness that was there at the time/place of the alleged rape that could back the accuser’s story.

            1. That’s still evidence corroborating the veracity of her story.

              1. You usually don’t do this kind of Reed Richards impersonation.

                1. I mean, that’s just black-letter evidentiary law. Hearsay cannot be used to prove the matter discussed. It can be used to counter-impeach testimony.

              2. That’s still evidence corroborating the veracity of her story.

                What somebody she is paying to talk to her writes down that she says is corroboration?

                Seriously?

                You’re actually going to make this argument?

                …and she said the notes were WRONG because she NOW says she didn’t say 4 guys were involved. Only two.

                Yes, this sounds really solid.

                1. Yes, that’s how corroboration works – it corroborates that what she said now she said in the past, when she would not have the same incentives, thus bolstering her current testimony.

                  Factual disagreements matter in as much as they might put into doubt the general narrative. Which is a question of fact for the finder of fact to make. In a hearing.

                  That you think this is a slam dunk ‘she’s lying’ doesn’t change how evidence works, and neither does your appeal to incredulity.

                  1. Sarcastro, if somebody lied and THEN lied to somebody else who wrote it down, that hearsay doesn’t corroborate any veracity. It’s just saying “Yeah, she said the same bullshit to me”

                    Hearsay means shit when it comes to veracity.

                  2. Go to court and argue that notes written at the time she FIRST mentioned the event after 30 years were wrong…but you are correct NOW, 6 years later.

                    Nobody would take you seriously. And they shouldn’t.

                  3. “Factual disagreements matter in as much as they might put into doubt the general narrative. Which is a question of fact for the finder of fact to make. In a hearing.”

                    Ahh, but this is not in court. the question is one of whether it raises sufficient doubt in the view of the public.

              3. “That’s still evidence corroborating the veracity of her story.”

                No, it’s not. The only thing it’s evidence of is that she’s told the same story in other contexts. It’s hearsay evidence that wouldn’t even be admissible in court.

                1. 1) hearsay is quite admissible in Congress.

                  2) this would be admissible in a court of law to bolster existing testimony. Hearsay is inadmissible only as proof of the matter asserted. One common and often allowed use for Hearsay is bolstering or impeaching the of veracity of a witness’ testimony.

                  1. 2) this would be admissible in a court of law to bolster existing testimony.

                    It’s her ONLY evidence.

                    Sorry, but no, a court would not allow hearsay for a charge that included no actual evidence behind it. Her telling other people the same story with no evidence would not be accepted by a court.

                    One common and often allowed use for Hearsay is bolstering or impeaching the of veracity of a witness’ testimony.

                    HER THIRTY YEAR OLD HEARSAY FROM A RECOVERED MEMORY is not bolstering anything.

                    She didn’t even name him.
                    Didn’t name when it happened.
                    Didn’t name where it happened.

                    It’s use is literally zero.

                    “See, she told other people. Thirty years after the fact. And please ignore the long-known issues of ‘recovered memories’ during therapy” would be laughed out of court.

                    1. It wouldn’t be hearsay because it’s not being used to prove the truth of the matter asserted.

                      And the victims’ testimony is not the potential hearsay…you seem to have gotten a bit mixed up.

                    2. It wouldn’t be hearsay because it’s not being used to prove the truth of the matter asserted.

                      It is literally the only proof she has provided.

                      And the victims’ testimony is not the potential hearsay…you seem to have gotten a bit mixed up.

                      A therapist noting what a patient told them is hearsay. Especially since she said the therapist was mistaken.

                    3. “It can be used to counter-impeach testimony.”

                      I don’t think you are right about the hearsay exception as to the notes.

                      The Recorded Recollection exception requires a statement “made or adopted by the witness when the matter was fresh in the witness’s memory”. I do not recall any others that would fit.

                    4. It’s not an exception because it’s not hearsay because it’s not being used to prove the truth of the matter asserted.

                    5. “It’s not an exception because it’s not hearsay because it’s not being used to prove the truth of the matter asserted.”

                      Then it can’t corroborate the matter asserted.

                    6. It is offered to bolster the credibility of the alleged victims’ testimony.

                    7. The report from the counselor is to vague on details and too recent. It does exactly squat to bolster the credibility of the alleged victim’s testimony.

                    8. While I haven’t been regularly engaged in trial practice for many, many years, I think you’re wrong on this Sarcasto.

                      I don’t have access to the Federal Rules of Evidence so I can only rely now on the Michigan Rules of Evidence. I understand though they are generally modeled on and track the Federal rules.

                      My research into the latter might not have been sufficiently-comprehensive, but the only rules I could locate that bear on this question are:

                      (to be continued)

                    9. “Rule 803A Hearsay Exception; Child’s Statement About Sexual Act
                      A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
                      (1) the declarant was under the age of ten when the statement was made;
                      (2) the statement is shown to have been spontaneous and without indication of manufacture;
                      (3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
                      (4) the statement is introduced through the testimony of someone other than the declarant.
                      If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.
                      A statement may not be admitted under this rule unless the proponent of the statement makes known to the adverse party the intent to offer the statement, and the particulars of the statement, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.
                      This rule applies in criminal and delinquency proceedings only.”

                      (to be continued)

                    10. And Rule 801 provides:
                      “Rule 801 Hearsay; Definitions
                      The following definitions apply under this article:
                      (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
                      (b) Declarant. A “declarant” is a person who makes a statement.
                      (c) Hearsay. “Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
                      (d) Statements which are not hearsay. A statement is not hearsay if?
                      (1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person;
                      …”

                      I’m open to being advised I’m misinterpreting the impact of these rules.

                    11. My knowledge is academic, as you could probably tell.

                      My interpretation is thus:

                      Hearsay does not apply because under (c) it is not being used to prove the truth of the matter asserted. Instead, it is being used to bolster separate testimony against impeachment by the opposition.

                      No exceptions needed, because it isn’t hearsay.
                      ——————
                      MatthewSlyfield’s argument that the evidence is too crappy to function to bolster is just question begging.

      3. There’s more than sufficient reason to doubt either side. And no overwhelming reason to affirmatively believe anything in particular. You don’t know what happened. If you are pretending you do, you’re not a serious person.

        1. No, I don’t know what happened. I have zero idea.

          I’m the one arguing for a hearing and investigation to find out what happened. You lot are the ones saying ‘I’ll bet she’s lying – confirm anyhow!’

          1. The hearing already happened. Nothing about this was even mentioned.

            1. So you don’t know what happened, but also don’t want to know.

              Nice.

              Looks to me like the hearing is still going on.

              1. The Senate should go ahead with the confirmation. And also hold hearings if there’s a demand for that.

                Eleventh hour surprise accusation should not become the regular new tactic to postpone a vote you’re otherwise going to lose.

                1. Well, glad you kinda want to know, even if you are assuming some bad faith on the alleged victims’ part with respect to the timing.

                  I think this is a legit part of the hearing, continuing in it’s normal order, and there is no need to start putting the cart before the horse in order to avoid an as-of-yet unobserved epidemic of overeager horses.

                  Of course, once he’s confirmed, everything becomes much more difficult. Damn convenient, that!

                  1. What’s the good faith explanation for the timing?

                    Why should we reward bad faith timing? Even if it wasn’t bad faith this time, it will be next time if you create the incentive.

                    1. It looks like this is when it leaked. That’s not on her.

                    2. So bad faith then.

                    3. I have no idea about the story. Maybe the Dems were playing tricks. It’d be political malpractice if they didn’t.
                      But regardless, it’s not on her, which is what you were trying to use it for.

              2. So you don’t know what happened, but also don’t want to know.

                Nice.

                Looks to me like the hearing is still going on.

                Nah, the hearing already ended.

                To re-open a case, one needs to provide some ACTUAL evidence to justify it.

                Therapist’s notes, which she says are erroneous as is, aren’t going to cut it.

                1. This is not a case, and the Senate can do whatever it wants.

                  It’s welcome to just nominate, but that’s quite a risk to take, on a number of levels.

                  1. This is not a case, and the Senate can do whatever it wants.

                    The Judiciary Committee very much ended the hearing. You may WISH it were not so, but it is so. Can they re-open it? Sure. As could a court after a trial. They just need, you know, evidence.

                    Which, mind you, the Democrat who leveled the accusation is avoiding let anybody speak to the professor.

                    It’s welcome to just nominate, but that’s quite a risk to take, on a number of levels.

                    1. This isn’t a trial, and this isn’t a court. The equities are quite different, and you analogy fails.

                    2. This is a hearing that ended. Your claim that they can do whatever they want is insipid and childish. They would need some reason to do it. She provided none.

          2. “I’m the one arguing for a hearing and investigation to find out what happened.”

            The only investigation in this case, if there is going to be one, should be handled by the appropriate local PD in Maryland where the high school they attended was located.

            1. Why would they investigate? The statute of limitations has expired.

              This is material to the nomination, and it meets the threshold for credibility (which is not the same as trying the case in your imagination).

              Congress sure as heck can and should investigate.

              1. Why would they investigate? The statute of limitations has expired.

              2. Maryland has no statute of limitations for felony sexual assault.

                1. Would Kavanaugh be tried as a minor if MD were to pursue charges?

                2. the allegation may not satisfy the Md definition for even 4th degree assault.

    2. Now you see why I’m looking forward to the future civil war. It’ll give real American patriots a chance to exact retribution against the left.

      1. This is the audience the Volokh Conspiracy cultivates. And the Conspirators wonder why strong law schools do not wish to provide more affirmative action hiring opportunities to movement conservative faculty candidates.

      2. The only real American patriots are the left, so that’ll be a short war.

      3. When people on the Internet are so wrong they just make you want to kill and kill…

    3. What I DO believe is that there is not one single Democratic Senator who has any more integrity than a rabid skunk.

      I hope that thought provides solace as you continue to observe your betters effect progress against your wishes as our society continues to improve along its liberal-libertarian arc, you stale-thinking, intolerant, right-wing rube.

      You might feel even better if you find some black voters to try to suppress, or some uppity women who need to be shown their place, or some Hispanic-looking people you could report to immigration officials.

  16. One can understand why a 15-year-old girl would not report this matter to the authorities.

    But why wouldn’t she warn her friends to stay away from a couple of creepy guys?

    1. But why wouldn’t she warn her friends to stay away from a couple of creepy guys?

      Or at the very least, why wouldn’t she have discussed it with her friends? Perhaps we are soon to hear from them.

      1. Guys, that’s not how that necessarily works with women who have been assaulted.
        Come on, are you going to ask what she was wearing next?

        This may or may not be true, but your speculation is not the right way to challenge it.

        1. Guys, that’s not how that necessarily works with women who have been assaulted.

          Do assault victims typically keep the fact a secret from their closest friends?

          1. I love that sex crimes are the ONLY ones where asking “Hey, why didn’t you tell ANYBODY for 30 fucking years?” is considered beyond-the-pale.

            1. It’s almost as though sexual trauma may be special in some way, damikesc!!

              1. Yup, watching somebody murder your loved one in front of you is, in no way, traumatic. Sure.

                Note: if somebody watched somebody murder their spouse in front of them and said nothing for 30 years, nobody would say “Well, they were traumatized”.

                1. People have different reactions to sex than violence, dude. Not all traumas are the same.

                  Good Lord.

                  1. People have different reactions to sex than violence, dude. Not all traumas are the same.

                    Yes, sex is WAY more traumatic than murder. Of course.

                    With the way you white knight women here, you make a very sound argument FOR patriarchy.

                    1. There is not some metric that is magnitude of trauma that allows you to compare the traumaticatude of all events.

                      For some, sex invokes a privacy response that violence does not.

                    2. There is not some metric that is magnitude of trauma that allows you to compare the traumaticatude of all events.

                      You’re the one doing so, not me. I’m saying victims should report the incident. You’re saying “Well, in THIS case — and, mind you, ONLY this case — they don’t need to.”

                    3. You’re the one trying to compare rape and murder in order to argue there’s a normal way to act after a trauma. Own it.

                    4. You’re the one trying to compare rape and murder in order to argue there’s a normal way to act after a trauma. Own it.

                      There is.

                      Hint: Relying on a recovered memory thirty years after the fact…it ain’t normal.

              2. It’s almost as though alleged sex offenders are guilty until proven innocent.

                1. Yes, Smooth. I’m not arguing Kav is/was guilty. All I’m saying is there should be a hearing and we can see how credible she looks. Because if he did do this, and is now so easily lying about it, that’s bad.

                  1. How are we…whoever “we” is, supposed to judge her credibility?
                    We’ve been through this when the accuser was a law prof and the allegations were only a few yrs old.
                    What are we looking for here with 35 yr old allegations and a PhD in psychology as the accuser?

                    1. You’re arguing we shouldn’t bother with an investigation or hearing because in the end it’s going to be a judgement call.

                      Make a hearing. Have the Senate make their judgment call in front of the American voters. That’s not a very high bar, certainly way under anything criminal.

                      Don’t just ignore this because ‘how can we ever truly know,’ that’s ‘well why have laws at all, man’ levels of dumb.

                    2. Make a hearing. Have the Senate make their judgment call in front of the American voters. That’s not a very high bar, certainly way under anything criminal.

                      You’re aware voting for his confirmation does that, right?

                    3. And if the Senate wants to ignore her, that is their right. But it’s a political risk, and seems a bad way to run a SCOTUS nomination.

                    4. And if the Senate wants to ignore her

                      “So, this random hyper political woman is making a claim about an incident — which has become WAY worse in her memory over the last 6 years — involving some guy she didn’t name, at a place she doesn’t know, in a year she isn’t sure of.

                      THIS SOLID PIECE OF EVIDENCE NEEDS MORE INVESTIGATING!!!”

                    5. No I’m asserting that no one’s mind will be changed by having a hearing.

                    6. “Make a hearing. Have the Senate make their judgment call in front of the American voters. That’s not a very high bar, certainly way under anything criminal.”

                      Seems that is what will happen. Both Ford and Bk will get lots of coaching this week about how to maximize the appearance of credibility

          2. Sometimes they do, swood. Take a moment to look it up. Not everyone confesses their trauma, and making that a requirement for credibility is some victim-shaming behavior that you’re better than.

            Now, you can poke holes in her timeline, or bring in counterveilling character witnesses, or whatever else, but this is not a good road to go down just as a general matter.

            1. Do you get paid to be a White Knight for women or is it just a hobby?

              1. Whatever, Bob.

                I have a friend from law school who does domestic violence TROs. This is what I understand to be the current psychological position held by courts. Have any of you folks pre-trying this case tried looking it up?

                And that this ‘why didn’t she tell anyone the day of’ is pretty damaging to some victims, and creates quite the perverse incentive for victims, if you take a moment to think about it.

            2. Sometimes they do, swood. Take a moment to look it up. Not everyone confesses their trauma, and making that a requirement for credibility is some victim-shaming behavior that you’re better than.

              I’m not shaming her. And yes, different people respond in different ways. But usually people discuss these things with their close friends. The failure to have done so is not dispositive, but it is curious.

              1. I will shame her.

                Fuck her.

                He did something, you had THIRTY-FIVE YEARS to say anything.

                She didn’t.

                You could provide SOME information. You know, like WHEN the hell this happened. But, I forget, expecting trauma victims to remember when it happened is too much.

                She could say WHERE it happened…but again, for you Sarcastro, expecting trauma victims to remember WHERE the trauma happened is too much.

                She could say HOW MANY were involved. The corroborating evidence you’re championing said 4. She NOW says 2. Both of the two say it is false…but, yeah, expecting a trauma victim to remember HOW MANY people were involved is too much.

                Out of curiosity — are there ANY expectations of people claiming to have been traumatized? Is anything not “too much” to expect them to recall? If they cannot recall anything, how can you have a hearing and examine a thing since she doesn’t KNOW anything?

                1. Yeah, this is an awesome look and I hope the GOP adopts your statement wholesale.

                  Keep it up!

                  1. Sarcastro, sorry if YOU think women are fragile flowers who cannot be expected to handle the rigors of life. Again, your views justify patriarchy.

                    If you’re assaulted, you report it. If you don’t, then fuck off.

                    What you DON’T do is make an accusation with literally no evidence behind it to smear somebody for no reason.

                    1. Rape is not a rigor of life.

                    2. Rape is not a rigor of life.

                      Again, you have an interesting set of rules for this one, specific crime.

                      As if women cannot be expected to be adults.

                      Again, white knighting is just sad, dood.

                    3. I actually have a pretty general set of rules that there’s a wide set of what’s a ‘normal’ reaction to traumatic stuff.

                      Do you think soldiers with PTSD are just fragile flowers if they have some trouble opening up about it and getting help?

                    4. damikesc, maybe she had put the (alleged) incident behind her, has a nice a family, career, hobby, etc, and was living a content life.

                      Now, Judge Kavanaugh is plastered all over the news.

                      Maybe she says, screw this, I’m going to ruin this guy for ruining me (assuming it happened).

                      If that’s the case, then she doesn’t sound like some weak snowflake but, instead, some sort of Peppermint.

                    5. ‘If you’re assaulted, you report it. If you don’t, then fuck off.’

                      All those altar-boys and assorted other victims who had to find the courage to open up about their abuse years after it occurred thank for your compassion and understanding. Fuckface.

        2. You assume that I am questioning her credibility with this question. But I am not doing so.

          What I am questioning is her sense of right and wrong and her concern for others. If these guys (who were from a group that her friends frequently socialized with) were such creeps, she should have warned others for their protection. But she said that she told no one, which only served to endanger others…

          1. Lovely bit of victim-blaming, seriously. The only people who endangered anyone were the alleged assailants.

            1. You have no idea what victim-blaming is. You should think before mindlessly repeating slogans.

      2. She said that she told no one which, if true (and if her allegations are true), left the creeps free to assault others…

        1. Any future assaults by the alleged assailant and friends were their responsibility, not hers.

          1. Those are not mutually exclusive alternatives.

            Are you really saying that she was right to fail to warn others?

            1. I’m saying that in the aftermath of an attempted rape she had to act in a way that protected her. She presumably thought that making an accusation would expose her to further trauma with little chance of justice. God knows girls like her were given every reason to think that.

  17. BTW, Laurence H. Tribe as one of the “prominent legal scholars” involved in this symposium? Is that the same Laurence H. Tribe who arranged to teach a seminar at Harvard Law School on how to impeach President Trump? The same Laurence H. Tribe who claimed that, with respect to Bill Clinton, “impeachment was misused by partisans opposed to the President but unable to identify any great crime against the nation,” but, with respect to Trump, publicly called for his impeachment “on Inauguration Day”, insisting that no criminal offense was necessary for impeachment? That hyperpartisan ass hat masquerading as a law progessor?

    1. I’m not sure you should be arguing being partisan means you have no credibility, Dan…

      1. I need some refreshments, Dan. Would you like some refreshments, Dan? I’ll be right back, Dan.

  18. What should be the standard of proof for perjury. Is “painfully obvious on the face of it” a high enough standard?

  19. There is some merit to the idea that we should discount accusations about long-ago events that occurred when the perpetrator was a minor. But whether such issues can be ignored completely depends on the seriousness of the charge and the importance of the position for which the person is being considered. Sexual assault is a serious crime and a seat on the Supreme Court is a position of vast power.

    What if the accuser doesn’t know when it happened?
    Where it happened?
    The one documentation she provided, her therapist’s notes, indicate a different number of people involved than she claims now.

    There is LITERALLY zero proof of the allegation.

    1. “What if the accuser doesn’t know when it happened?
      Where it happened?”

      Or if it even did happen, at least in the way she remembers it. Which seems distinctly different from the way Judge Kavanaugh remembers (not) it.

      Seems dems and feminists want some cases revisited (this alleged groping), and other cases to remain untouched (roe). So which is it, cases are settled law after a generation or two has passed, or not settled law.

  20. Here’s my question for the anti-Kavanaugh people: If you believe the allegations are true (or more likely true than not), then do you also contend that Kavanaugh must also be removed from the D.C. Circuit? After all, if there is a level of proof sufficient to disqualify him from the Supreme Court, why not the D.C. Circuit as well?

    If you pause on full-out impeachment, why is that? And if you do think it’s worthy of impeachment, then do you also think Feinstein should have pursued impeachment when she first heard about it back in July?

    My sense is that many people just want to prevent his nomination to the Supreme Court (versus all-out impeachment). After all, that’s how I’ve seen it discussed. If that’s the case, pretty revealing about what the motivations are here.

    1. Impeachment for perjury? Sure, I’m in. And I won’t lose any sleep over my motivations when certain people are trying to pass off Kavanaugh as Oliver Wendell Holmes.

      1. Go read David Lat’s take on this whole perjury thing. He walks through it and points out how the testimony is consistent. You’re way over-reaching with that one.

        1. Or, you can read Jeremy Stahl’s takedown of Lat over at Slate. Have no fear, they’re just words.

          1. He doesn’t actually. He addresses one of several points raised by Lat, and on that he admits that Lat was correct (i.e., that Kavanaugh didn’t receive the memos). He just doesn’t like that Lat was applying the words literally.

            Furthermore, even when he dodges the issue, he doesn’t actually show that Kavanaugh knew he received stolen information. He only argues that Kavanaugh should have disbelieved that the information came from “Dem staffers” and that he should have assumed, after the fact, that the information quoted stolen memos.

    2. If you believe the allegations are true (or more likely true than not), then do you also contend that Kavanaugh must also be removed from the D.C. Circuit?

      Removal from office is a much heavier lift: 67 votes vs 51 to confirm.

      1. So what? The question isn’t whether impeachment is politically possible or likely to happen. The question is, if you believe these allegations are true, then don’t you also have to move to impeach him?

        I don’t understand how you can say “these allegations are sufficiently credible to keep you off the Supreme Court, but go ahead and keep your D.C. Circuit job.”

        1. So what? The question isn’t whether impeachment is politically possible or likely to happen. The question is, if you believe these allegations are true, then don’t you also have to move to impeach him?

          Not all those voting against Kavanaugh will be doing so for the same reason. But I have no doubt that if he is rejected there will be a movement to impeach him.

    3. If Kavanaugh is actually guilty of the accusations then he should be removed from the DC court. This is not merely an accusation of unwanted or overly flirtatious behavior, it is an accusation of an actual sexual attack and the theoretical question of whether a prior sexual assault should be disqualifying for a SCOTUS nominee (and cause for impeachment) has a simple answer – yes! It doesn’t matter if it only happened once or happened a long time ago or the person was young, drunk and stupid – a sexual assault is disqualifying.

      The question is how to handle such an accusation in this particular case and, in particular, is the accusation credible enough to warrant an investigation? I believe it is, especially since the accuser has spoken about the incident to her therapist back in 2012 and is now willing to offer testimony to the Senate. And if you thought Anita Hill’s experience was painful to watch, buckle up for this one because it’s going to be a bumpy ride.

      But whether the accusations are true or not, the GOP wants Kav, or someone like him, on the bench. They may feel the need to hold hearings on the matter so as to not antagonize those who think that sexual assaults are a serious matter but whether they keep or lose the Senate in November they can always vote him in after the mid-terms. Besides, it’s not like the Federalist Society has a dearth of potential nominees on hand though, perhaps, not many quite so deferential to presidential authority.

      1. Does it matter that, even if it did happen (which it very likely didn’t) that Kav was a minor?

    4. “do you also think Feinstein should have pursued impeachment”
      DiFi is in the wrong branch of the Congress. Anna Eschoo should be doing it even now.

  21. What is wrong with people?

    The Dems pre-hearing shrieking didn’t work.

    The Dems hearing histrionics just made them look like asses.

    So, what do they do?

    Find some rando who can make sexual assault accusations long enough to derail the vote. Will there be any follow up? Of course not.

    These are lies.

    Just like how Roy Moore’s not sitting in jail now after HIS prosecution. Or did we all miss that? That those serious allegations evaporated after he lost?

  22. Someone on someone’s staff might want to reread the popular novel, Bear Town, by Frederik Backman, the Swedish author. Prof. Ford’s revelation of an event three decades old is remarkably similar to the plot in Bear Town. Backman’s novel was published before Prof. Ford’s memory began to clear up.

  23. We have a choice between :

    1. it’s a made up partisan lie to try to derail his nomination
    2. something like it happened to her sometime, but she’s misremembering the details, including the guy
    3. it happened, more or less as described

    If the accusation derailed him in situation 1 or 2 that would not be a good thing for the appointment process. If it didn’t derail him in situation 3, that would be just as bad. But there’s no way of knowing – absent someone changing their story – which version is the correct one. It’s hard to see what any hearing could reveal beynd the current he said, she said, he said. So it’s a bit of a rorschach test.

    I confess I never much liked the look of Kavanaugh, compared to the other potential nominees, so if 3 were shown to be correct, then him losing out wouldn’t bother me at all. But if 1 or 2 are true then it would be appalling if a fake, or even a mistaken accusation, derailed him, even though I’m not a fan.

    1. #1 seems unlikely as Ford related the incident to her therapist back in 2012.

      #2 is possible and an investigation may or may not clear up some of the details. It may be reasonable to discount an anonymous, decades old accusation but now that Ford has come forward and is willing to testify before the Senate I don’t see how refusing to investigate is supportable. A refusal by the GOP to allow hearings on the matter would be partisan hackery at its finest.

      #3 is disqualifying.

      1. As noted below, the 2012 story does not derail 1

      2. I’m not sure how you investigate unless she gets more specific about the date and location. What are you going to do, somehow prove where Kavanaugh was every hour during a five year period 35 years ago?

        Refusing to be specific is a great way to prevent your target from producing an alibi.

    2. As to the balance of propbabilities, while I think it’s perfectly possible that he was a drunken groping frat boy in his teens, my view of the rorschach test is that 1. is much the most likely option, for the following reasons :

      1. if he had been a drunken groping frat boy, what are the odds that his victim would turn out to be a liberal Bernie bro professor ? It’s too convenient. One reason why the Clinton and Roy Moore accusations were more believable (betond their serial nature) was that some of the accusers had no political axe to grind

      2. The visit to the analyst in 2012, which is offered as support for the notion that this isn’t something thought up on the spur of the moment to derail Kavanaugh, speaks just as well for the opposit conclusion. Kavanaugh was touted in the press as President Romney’s number one SCOTUS pick. Redundant 2012 Kavanaugh smear preparation can be repurposed to 2018.

      3. It’s not impossible for someone to keep this sort of terrible experience quiet for thirty years. But she’s not just a someone. She’s a psychology professor. It’s much less likely that she would have gone through her training and her career without discussing this with a friend or colleague, than if she were in some other line of work. It’s also much less likely that she would have forgotten the details, because she’d have been much more likely to memorialise them long ago, pursuant to he training.

      1. #1. The argument that this is a politically motivated hit job runs in both directions. If a person’s political affiliations are grist for the mill then any reticence by the GOP on holding an investigation is equally suspect. The accusation of a sexual assault is a very serious one and deserves to be investigated with both parties given ample opportunity to testify.

        #2. Planning in 2012 for a potential attack on a potential jurist in a potential Romney victory pushes credulity, it’s too clever by half.

        #3. It is not so black and white. How someone, man or woman, reacts to an assault is not something that can be rigidly determined to be right or wrong, reasonable or unreasonable or that “training” would dictate behavior, people are very good at compartmentalizing their lives. You can’t say, in effect, “Well, that’s not how I would have handled it.”

        Just to be clear, I have no idea as to what may or may not have happened. TBS, I do not believe this was some six year old, pre-planned hit job, that’s just too unlikely. Let’s have a hearing and give both parties a chance to testify.

        1. TBS, I do not believe this was some six year old, pre-planned hit job, that’s just too unlikely.

          You – like most humans – lack an instinctive sense of probability. A 2012 plan to hit Kavanaugh in 2018 is indeed very unlikely. A 2012 plan to hit a Republican at some point after 2012 is much more likely. Because there are dozens of values of {Republican} and dozens of values of {at some point.} The chances of you picking a single stock today that returns you 1000% over the next ten years is pretty close to zero. The chances of somebody picking a stock sometime in September 2018 that returns them 1000% in the next 5-15 years is probably 90something percent.

          A failed 2012 plan to hit any of twenty possible Romney appointees, scrubbed off and aimed at Kavanaugh in 2018 is no more unlikely than a fresh 2018 plan to hit Kavanaugh.

          1. You – like most humans – lack an instinctive sense of probability.

            …is this satire?

            1. Is this difficult ? Most people aren’t very good at estimating probabilities, and are no better at understanding the math underlying them.

              A very common misconception is that low probability events are rare. They’re not. They’re very very common. The mistake is confusing the probability of a particular low probability event occuring, and the probability of some unspecified low probability event occuring. Thus when some professional golfer hits a hole in one, it’s wow, amazing, once in a lifetime ! But it’s not. There’ll be a hole in one every other tournament. Just not by any particular golfer that we could specify in advance with any confidence.

              In this case, we need to ask – is it probable that Professor X would fabricate a rape allegation against Nominee Y, on the off chance that he might be nominated Z years ahead ? No. It’s very improbable. But is it probable that [some woman} might set out to fabricate a rape allegation against [some political opponets] at [some time} ? Yes it is. It’s very probable. And will be more probable in future, if Kavanaugh goes down (whether he’s guilty or not.) Because past and future allegations are not independent events. The success of past ones increases the probability of future ones.

          2. “A failed 2012 plan to hit any of twenty possible Romney appointees, scrubbed off and aimed at Kavanaugh in 2018 is no more unlikely than a fresh 2018 plan to hit Kavanaugh”

            Of course it is. One would have to create 20 back stories for the 20 potential 2012 GOP SCOTUS nominees (your number) in order to guarantee having something against Kavanaugh. What would that effort look like? Did Ford go to 20 different therapists in 2012 with accusations against, well, everyone? Is there a cabal of 20 or more (wo)men who went to various therapists, blanketing the country with stories of sexual assaults? Geez dude(tte), if Ford was going down that road she could have just found a therapist or another woman who would be willing to conspire with her against Kavanaugh.

            1. No, don’t be clueless. You go to one therapist and make an allegation against an unnamed frat boy who, you say, has now made it big in DC. No name, no date, no place.

              You can then dust that off and use it against anyone who is of the right age, lived around DC and is somebody in DC now.

              When a suitable candidate is nominated you polish up your story with further details, but so it’s consistent with your more general story to the therapist, and gve it to DiFi. The same story, and one therapist visit, works against any suitable mark. And at any time.

              1. I will say that your world is more, um, interesting than mine..

                1. A right-wing true believer has a fascinating world to behold — the birth certificate, Pizzagate, the Kenyan Muslim, the coming civil war, Hillary’s mental and physical condition, Benghazi, Vince Foster, the coming race war, Trump’s adequacy . . .

        2. Ford now claims that she worried about BK being nominated for SCOTUS as early as 2002 when he was nominated the first time for the DC Court.

  24. I think you just ignore this. The person who Blasey said was a witness denied the story. Even assuming you put him in the Kavanaugh-lackey camp, I don’t see how this ever gets beyond he-said, she-said.

    Putting aside the timing, the accuser’s outspoken partisanship and lack of corroboration, the most we will ever be able to say is Kavanaugh may or may not have done this. I think what someone may or may not have done in high school should have minimal relevance to whether a person is qualified to be elevated to the Supreme Court of the United States.

    Also, some people think that Thomas was embittered by the similar conduct during his confirmation hearing. Assuming Kavanaugh subjectively believes that this is a lie and attempted character assassination, you’re going to make him less open-minded and more likely to abscribe bad faith to your side of political issues that come before the Court.

    1. you’re going to make him less open-minded and more likely to abscribe bad faith to your side of political issues that come before the Court.

      You mean he won’t just call balls and strikes? What a terrible accusation.

    2. How could one not ascribe bad faith to anything the left does?

  25. Hey, does anyone here at the VOLOKH Conspiracy know anyone who might have possibly clerked for Kozinski? If anyone here at the V-O-L-O-K-H Conspiracy knows anyone who has– maybe a Big Ukrainian? — could that person please weigh in on how plausible or implausible Kavanaugh’s claim to not remember the dirty-joke emails and sexist atmosphere in his group might be? As this former clerk Heidi Bond has done here (breaking up the url because system won’t allow a more-than-50-character string):

    slate.Com/news-and-politics/2018/09
    /kavanaugh-kozinski-gag
    -list-emails-senate-hearings.html

    1. If there’s anything worse than the British public in one of its fits of morality, it’s the Democrats having to pretend they care about sexual misconduct and lying about same.

      1. Why did Al Franken resign from the Senate?

        1. To spend more time with his family?

        2. He was assassinated by Kirsten Gillibrand

    2. If it’s all the same to you, I’m just gonna call you Mr. Toad.

      1. Just don’t call me late for dinner.

    3. Yes. Look, Kavanaugh is a liar. He lied about the Miranda business, and likely lied about the Kozinski emails. Why wouldn’t he lie about this matter?

  26. If she is telling the truth, few people will believe her. The accusations were held until the very last second with the obvious intent to derail the nomination during a bitter partisan fight. Kavanaugh has been on the D.C. circuit since 2006, she could have come forward way before now. Worse, it will make other women who come forward during partisan fights even less likely to be believed.

    True or not, coming forward so late in a bitter partisan battle does an enormous disservice to other women who were abused.

    1. It’s unclear whether you’re misrepresenting facts in bad faith or simply ignorant of them. Maybe you could help clear it up.

      1. What facts? there are no facts.

        1. The claim that “The accusations were held until the very last second with the obvious intent to derail the nomination during a bitter partisan fight” is a factual claim, and also an incorrect one.

          1. Not sure what you’re claiming is incorrect. Ford never claimed that Kavanaugh did anything until Kananaugh was nominated, and it’s not hard to infer that her intent was to derail the nomination. Are you quibbling over whether her intent was “obvious”?

            1. Ford told her therapist and her husband about this event in 2012, before anyone outside of the VC readership knew who Brett Kavanaugh was. She told the Washington Post about it in July, before Kavanaugh was nominated.

              1. She didn’t mention Kavanaugh’s name to her therapist, and she talked to the post, off the record, when Kavanaugh was shortlisted, but before he was nominated. So what facts were incorrect?

                1. She did mention it to her husband. The fact that she told people about it in 2012, and told the Post before Kavanaugh was nominated, means that claim that “The accusations were held until the very last second with the obvious intent to derail the nomination” is factually wrong.

                  1. “She did mention it to her husband.”

                    Where’s the evidence that she gave her husband any more details than what she said in the therapy sessions (no place, no date/time, no names).

          2. “an incorrect one.”
            What do you mean; it is exactly what Feinstein did. Much more effective that way.

  27. Drinking alcohol at 17 is illegal – doesn’t that play into the discussion?

    1. Drinking alcohol at 17 is illegal – doesn’t that play into the discussion?

      She could say that her attacker was drunk without admitting that she was drinking. And anyway, are the police really in the habit of charging people with possession of alcohol based solely on their admission that they had a drink? Furthermore, that doesn’t explain why she didn’t mention anything about this to her friends.

      1. Should we allow judges who were guilty of underaged drinking? That’s almost as bad as liking baseball

    2. Geez, I hope not. Otherwise my shot at a SCOTUS nomination is gone forever.

  28. Wow. A journalist is claiming that, of the 65 woman that signed a letter of support for Kauvanaugh, only two still support him. That’s pretty bad. Unless, of course, the journalist is lying.

    1. “the journalist is lying.”

      Is water wet?

      No one returned his calls. He took that as a repudiation.

      Other journalist, Chris Griedner, called one and got her to have others call him. The ones who called [admittedly a minority] say they do not retract.

    2. Claim I saw is that very few got back to him. That’s not quite as damming as it might seem.

      1. Would you call a strange reporter back? I would not.

        1. What about the Mexican Weather Girl?

        2. As I said Bob – not as damming as it might seem.

          Your defensive crouch is making you twitchy, lol.

    3. Journalism’s ultimate lazy ass cop out: our call/e-mail/knock on the door when we knew they would not be home was not answered in time for this article. Meaning they did not make any effort at all.

  29. Feinstein is now claiming that there is more that we don’t know about Kavanaugah. I suppose if we delay the vote to hear Ford’s claims, and this doesn’t do the trick, some other bullshit will leak and we’ll have to delay the vote again. This will go on as long as the Republicans allow it to.

    1. The important thing is to draw up your conclusions now!

      Assuming it’s bullshit is begging the question rather hard, isn’t it?

      1. I’ll draw the conclusion that his hearing won’t settle whether or not this allegation is bullshit. And after the hearing, some other allegation that may or may not be bullshit will leak out. Is that better?

        No good will come from a hearing. Ford will get questioned about her mental health and her high school sex life, and no one will change their view about the veracity of the allegations.

        1. “Ford will get questioned about her mental health and her high school sex life”

          Doubtful.

          No GOP senator has broken yet. Calls for hearings by a few. Collins seems still solid.

          My bet is very little GOP questioning. Odds are still on confirmation, why risk it.

          1. She’s a professional psychologist, she should be interrogating Congress about how they feel about their mothers.

            Or maybe how their mothers feel about them.

    2. “Feinstein is now claiming that there is more that we don’t know about Kavanaugah”

      She is the mastermind of this drone strike. And progessive think that she is “too old.” Shows what they know

  30. Public hearings, despite Dem protests, next Monday where both Kav [for sure] and his accuser [I believe] will testify.

    Grab your popcorn and/or crying towels.

    1. It’s like Chambers/Hiss, except that was serious and this is retarded.

  31. If the Senate bothers to hold hearings on this matter at all (and I favor simply ignoring it as unimportant even if true), why bother even to try to set a standard of proof? Just let both sides be heard, in a debate format, in front of the full Senate, and then let members vote yea or nay on the nomination.

    1. Since when has there been a “standard of proof” in politics? What was the standard of proof to determine whether Clarence Thomas sexually harassed Anita Hill, or Kimba Wood broke the law in hiring an immigrant nanny, or (more recently) Roy Moore molested a 14-year-old girl or Hillary Clinton broke the law with her server?

      Standards of proof are for courts. Whether this accusation is sufficiently compelling, damaging and credible to sink Kavanaugh’s nomination is purely a political question.

    2. Just let both sides be heard, in a debate format, in front of the full Senate, and then let members vote yea or nay on the nomination.

      They should take a vote before the hearings, then one after the hearings and to whichever side there was more members converted, that side should win.

  32. Either she has real evidence or she doesn’t. Put up or shut up. In a logical world we’d have far stronger antidefamation protections against the ability of a jilted woman to rain down destruction upon a man’s reputation at will. She was given the time and she choose not to use it. If Brett grabbed my butt and I didn’t care enough to go after him after more than 3 decades I’d understand if nobody else cared.

    1. No, ideally we wouldn’t have any anti defamation protections (aka restrictions on free speech.) We’d leave the listeners to decdide what they want to believe.

      1. Every time a stale-thinking, left-behind, bitter old man talks about gender issues, a young woman gets her voting wings — for life.

        Carry on, clingers.

        1. And yet:
          Donald Trump–a known misogynist–won the white women vote in his election race against the first woman to ever run–and the smartest woman this country has ever produced.
          I’d re-check my algorithm if I were you.

          1. Plenty of white women are older, poorly educated, bigoted, and rural. That’s Trump territory, enough to have given him 52 percent of the while female vote. His numbers among half-educated women were even better, near 60 percent.

            But those stale thinkers are dying off.

            Young women detest Trump and recognize Trump supporters as lousy people. And they are the ones who will be voting for another half-century.

            Get ready, clingers. (For another half-century of liberal-libertarian progress that crushes right-wing aspirations, that is.)

            1. Republicans lose voters because they die.

              Democrats lose voters because they grow up and become Republicans.

    2. Exactly. Women who make false accusations of rape should be executed.

  33. If this stops the nomination, I’d bet that both parties will start researching the pasts of any future nominees to see if they can find a location and date when one of their party faithful was in the same place, and is willing to accuse.

  34. From Catherine MacKinnon’s piece: “These are very serious allegations from a credible source, backed by some corroborating documentary evidence.”

    How in HELL did Catherine MacKinnon make the determination that the accuser was “a credible source”. And exactly WHAT “corroborating documentary evidence” is she referring to? So far as I have been able to determine, the ONLY “documentary evidence” out the are the notes of a discussion with a marriage counselor in 2002, some 16 years after the fact, and those notes do not corroborate ANYTHING except for the fact that this accuser told a similar story, with significant differences (the notes of those sessions indicate that the accuser claimed that there were four assailants, not two, and she did not name any of them) well after the fact. So, this accuser is someone who did not tell ANYONE for 20 years (or maybe it was 19 years or 21 years – she’s certain that it happened in the summer, and THINKS that it was 1982, but she’s not certain), then tells a similar story, without any details like whose house it occurred at, who else was present, how she got there or how she got home, with significant differences as to very significant details, like how many assailants there were, and NOW decides to adapt the story to fit Judge Kavanaugh? Is THAT what makes her “credible” to Catherine MacKinnon? If so, just what exactly makes Catherine MacKinnon remotely fit to teach in any law school?

  35. Richard Epstein has the ONLY remotely sane response in this Symposium – if this patently cynical, patently dishonest, patently immoral political ploy by Diane Feinstein is permitted to succeed, who in their right mind will ever again agree to accept a judicial nomination?

    1. Right-wingers are becoming exceptionally cranky.

      I guess losing a culture war would be hard for the losers.

      1. Epstein is the smartest person I’ve ever been in the same room with.
        I’d watch myself, if I were you.

        1. Epstein considers Pres. Trump to be a bully,a boor, and a baby. He describes Pres. Trump as ignorant and intolerant, likely even dumb.

          So long as you propose to continue to appease bigotry, boorishness, and backwardness in an effort to advance Republican-conservative political power and preferences, I’d be careful about relying on Richard Epstein’s opinions concerning the Make American Great Again movement.

          Or, just continue to carry on, clinger . . . so long as you can, anyway.

          1. I’m pretty much in agreement with Epstein’s characterization of Drumpf.
            I will note, however, that he won the election.
            Also, I’m not the one who called him a cranky, right wing loser of the cultural war.

  36. A woman named Juanita Broaddrick once reported promptly to a friend she had been raped in April, 1978, in the Camelot Motor Inn in Little Rock, Arkansas. Since the rapist was then the A.G. of that state, she didn’t report to authorities. At the time she was a receptionist at a Democrat political event and when it was over the rapist followed her up to her room and forced his way in.

    The “seriousness of the charge” factor reminds me of how the Russia probe began. With this factor in play, evidence doesn’t matter much. It can fly in over the transom (remember when doors in office buildings all had transoms? That was pre-air conditioning days!) Evidence can be supplied by oppo research groups working for a political party. Evidence can be circular, originating from an investigating agency, getting leaked to the media, then the media report can be dragged into a FISA court or some other venue with an exceptionally clueless or politically biased judge in charge and used for new powers to be granted to the police.

  37. Professor Ford is a clinical psychology professor. Professor Ford says that the alleged attack had serious mental health consquences for her. She says she was unable to have healthy relations with men and that the alleged attach contributed to anxiety and PTSD that she suffered. Yet, she says that she never discussed the alleged attack until 2012 when she and her husband were in marital counseling.

    I find this impossible to believe. She teaches clincal psychology. One would think that a person in her profession would seek professional help early on.

    We will never know about any earlier psychological or psychiatric counseling she has received unless she gives her consent. We need to know about any earlier counseling she has received. We need to if she told her earlier counselors about the alleged attack and, if so, how she described it.

    Also, perhaps I am wrong, but I was under the impression that certain mental health professionals are required to have annual (or some other periodic) psychiatric or psychological evalutation.

    1. I find this impossible to believe. She teaches clincal psychology. One would think that a person in her profession would seek professional help early on.

      I know plenty of computer professionals who don’t do regular backups. Doctors or Nurses who ignore health issues.

      I’m apparently surrounded by impossible people.

      We will never know about any earlier psychological or psychiatric counseling she has received unless she gives her consent. We need to know about any earlier counseling she has received. We need to if she told her earlier counselors about the alleged attack and, if so, how she described it.

      So making an accusation of attempted rape now voids doctor-patient privilege?

  38. Difficult to believe, and disheartening as well, that these people teach law. One dislikes Kavanaugh and takes it from there.

    A law faculty member presents drama worthy of a Lifetime movie and suggests that Kavanaugh cannot serve as a judge any longer. She cites Justice Kozinski’s in chambers antics, making no distinction between that of a grown man and the alleged decades old act of a teenager. Where does this esteemed scholar serve? Harvard Law.

    I do not understand our nation’s fixation on sexual violence, whether rape or abortion, any discussion galvanizes. No one ever pauses to question this fetish.

  39. The latest wrinkle arises from the fact that Kavanaugh descends from a line of judges. His mother, in fact, was a judge. His mother, in fact. was the judge of record on a foreclosure case involving the parents of today’s #me too accuser, Christine Ford. Funny world, this.

    1. Another talk-radio tidbit. Sixty-five female high school classmates of Kavanaugh have signed a letter affirming that they never knew him to do anything that anyone would be ashamed of doing. Of course, in today’s upside down moral universe, 65 character witnesses count as less than zero. All that matters is what erupts from the mouth of one accuser who is relating an alleged incident from 36-years ago that she kinda sorta remembers.

      Which is to say, she kinda sorta remembers going to a party when she was 15, but not whose house it was at or where the house was at. She had (she said) one beer, which apparently was enough to erase her memory for names, unless she was in the habit of going to parties where everyone was a total stranger to her, except for Kavanaugh.

      Maybe some of her high school contemporaries have a better memory than she does, if they dare to come forward. It is not inconceivable that a lot of potential witnesses may remain silent because the American left is now out in the open that they are bat-shit insane and they will try to destroy you if you are so bold as to tell your version of certain things.

    2. Mark Judge, the one alleged witness, is publicly denying that it happened, but for some reason doesn’t want to testify under oath before the committee.

      Funny world, this.

      1. Gee I wonder what the reason could be. On penalty of perjury he has the fun of being abused on prime time TV by a dozen flatulating showponies, grilled on his teenage sex life, drink life and general adolescent idiocies in return for a potential benefit of…..a big fat nada.

        Who wouldn’t jump at the opportunity ?

        1. Your sympathy for Judge and not Ford for the exact same thing (except with Ford it is quite manifest) is quite telling.

          1. I don’t believe I’ve said anything – so far – about Ford’s apparent reluctance to testify. And I have lots of conditional sympathy for her…..if she’s telling the truth. And obviously lots of negative sympathy if she’s lying.

            Although both she and Judge are in their own Schrodinger’s cat box – we don’t know whether they’re
            lying or telling the truth – they’re in a different position as regards the Kavanaugh hearing business. One of them has voluntarily, if perhaps reluctantly, stepped into the limelight and is trying to intervene in important matters of state. The other has been minding his own business. Judge has nothing to gain from testifying. Ford has plenty to gain – whether she’s lying or telling the truth, she plainly wants to derail Kavanaugh’s confirmation quite badly. Hence her refusal to testify requires much more eyebrow raising than Judge’s.

            It adds another brick to the growing wall of reasons not to believe her – particularly when combined with the patently ludicrous demand to put everything on hold for an FBI investigation.

            So her refusal to testify marginally increases the odds (in my book) that she’s lying, maybe from 80% to 85%. For folk who had her odds of lying at say 40% it might have a bigger effect.

            But there is still a small chance she’s telling the truth, and if she is, then she has my sympathy, both for her past ordeal and for her current one.

            1. What specifically do you think Ford has to gain from lying? Replacing Kavanaugh with another extremely conservative justice is a pretty small gain. Being famous for being sexually assaulted is another dubious gain.

              Not to mention the fact she first reported the allegations to her therapist 6 years ago. The probability of a lie seems more like 5% than 85%.

    3. Turns out that’s not true. And it had been debunked well before this comment.

      Some things are too good to check, I guess!

  40. It looks as if Ford will be defaulting at the hearing on Monday.

    Which leaves it up to Kavanaugh to deny ever hurting this woman and to call for everyone who is harassing her to stop. If he shows humanity, humility and compassion, he will be confirmed.

    1. And most likely he will remember the people who dragged him and his family through the mud with a false accusation which should prevent him from “growing” on the bench.

      1. Good point about “growing”.

        Likewise, I feel that the early judicial over-reach regarding Trump’s travel ban guarantees that he won’t go soft on judicial appointments…

  41. Are there no women here?

    I am just a bit older than Kavanaugh and Ford. Never partied in HS, but made up for it once I got to college.

    When a marriage is in trouble, and the couple is in counseling, a woman will leverage past history unshared with her husband To gain an advantage, make excuses, explain current behavior, etc. Ford could have embellished a nothing event from HS to explain away ongoing sexual issues with her husband.

    We all benchmark events in HS by what year we were. Ford would remember the timing enough to say, “I was a freshman,” or “I was a junior.” We remember when we started dating, when we started going to parties, our first kiss, etc. I got involuntarily felt up by a now major Democratic operative the summer after we graduated. I even remember the movie we saw when he did it. I told ALL of my friends about it. It made an impression.

    I can imagine that she and a boy went into a bedroom at a party and started to make out. He wanted to go farther than she did?or vice versus. Or they were going at it, when another guy barges in. She is embarrassed and ashamed, and makes up a story to get herself off the hook for behavior she isn’t proud of.

    What kind of “party” only has four or five kids? What was she doing in a strange house, the only female, with four guys she didn’t know? If she was a freshman…why was she even hanging around juniors?

    C’mon, people. Drama and hormones and secrecy and rebellion. This whole thing is bullshit.

    1. When a marriage is in trouble, and the couple is in counseling, a woman will leverage past history unshared with her husband To gain an advantage, make excuses, explain current behavior, etc. Ford could have embellished a nothing event from HS to explain away ongoing sexual issues with her husband.

      Wow. Starting with misogynistic generalization and speculating from there! Yeah, I know you’re a woman, but that doesn’t shield you from criticism from taking a ‘women be crazy’ position.

      1. Stating the truth isn’t misogynistic, Sarcastr0. Human nature is what it is. I am sure men in counseling do equally crazy things?this conversation isn’t about men. Who know what Ford’s husband might have done to get them into counseling. Maybe he wanted sex three times a day, and Ford was grasping at anything to get him off her back. We have no idea.

        The point is that people in fraught intimate relationships do not typically make as their aim objective, totally factual historiography. They are fighting for their emotional lives. Whatever Ford said, we probably should view it in that context.

        And then, years later, a politically active Ford could have taken advantage of that.

        1. Did you read all the maybe’s and could’s in the scenario you cooked up? That’s how you know it’s unsupported fiction.

          Your idea of human nature is that you can count on women to be irrational and vindictive. That’s not human nature, that’s you weaponizing a stereotype women have long suffered under against a woman for partisan reasons.

          It’s sad, really.

    2. Are there no women here?

      Are you new here?

      The Volokh Conspiracy’s vivid tradition is that of a white, male, right-wing, movement conservative blog. Improbably male. Strikingly white. Reliably movement conservative.

      It describes itself as libertarian, but that is mostly the unconvincing libertarian drag that some right-wingers periodically wear when they think it helps movement conservatism. The Conspiracy occasionally features a brief run from a female Conspirator — currently, that role is assigned to Prof. Heriot, who we are told is a woman but who also is claimed not to be a Republican — but those token appearances have been few and fleeting at this white, male blog.

      What are the odds against a lineup so white and so male? A hundred years ago? No point in asking. Fifty years ago, not bad. Twenty year ago, still depressingly likely. But today, and in academia? Not just academia (which includes hundreds of “traditional” and backward schools and faculties), but the upper levels of academia, the strong level of liberal-libertarian educational institutions that employ many Conspirators. From that context, drawing the Conspiracy lineup would be like filling a half-dozen inside straights in a row.

      It is difficult to accept that results so striking could be the product of happenstance. This is a white, male blog because that is what the proprietors prefer, and arrange.

  42. What is the FBI going to investigate when the only evidence is people’s three-decades-plus old memories?

    Meanwhile at Amazon, Mark Gauvreau Judge, “Wasted: Tales of a GenX Drunk”, Hazelden, 1 May 1997.
    16 Amazon reviews.
    Amazon lists it “Out of Print — Limited Availability” and no used copies listed for sale.
    One ***** star rave review 7 Nov 1999 by “A customer” for its tale of overcoming alcoholism.
    Fifteen mostly * star critical reviews, first starting 16 Sep 2018, some admitting they have not read the book outside the current news reports.

    1. I just think it is weird that the only known witness would be named Judge. Also weird that Kavanaugh’s mother was the judge of record in a foreclosure action involving the parents of Christine Ford. So I am superstitious, but I call such coincidences serendipitous monkey business. That’s mindful to us old goats of Rod Serling’s Twilight Zone TV series.

    2. Why would the FBI investigate. This is an allegation of a local crime. The appropriate county officials in Maryland can begin the investigation, assuming she actually files a complaint with the authorities.

      1. Background check for sensitive federal employment.

  43. Now she does not want to talk on Monday.

    Democrats upped the bid, Republicans called, and now the Dems are regretting having to show just how weak their hand really is.

  44. Looks like the conservative cynic wins again, and, once again, poor Sarcastro gets his naive heart broken.

    1. I mean, I was pretty clear how I thought this would go, versus how it should go.

      I think it’s a dumb move to insist on an investigation before a hearing. The offered hearing is better than nothing, while wanking about procedure doesn’t play beyond the Dem base.

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