MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Why Supreme Court Confirmation Hearings Should be Treated as Job Interviews, not Criminal Trials

One of the points at issue in the debate over The sexual assault accusations against Brett Kavanaugh is whether the standards of proof used by the Senate should be those appropriate to a criminal trial or those of a job interview. The latter is the superior approach.

Brett Kavanaugh.Brett Kavanaugh.

One of the points at issue in the debate over the sexual assault accusations against Supreme Court nominee Brett Kavanaugh is whether the standard of proof used should be similar to that applied the criminal justice system or that of a job interview. Proponents of the criminal justice model argue that Kavanaugh must be considered "innocent until proven guilty" and his accusers should be required to meet a very high burden of proof, perhaps even as high as the "beyond reasonable doubt" standard used in criminal trials. By contrast, advocates of the job interview approach argue that it is up to the nominee to prove that he is fit to sit on the Supreme Court, and the accusations may be enough to disqualify him even if there is a great deal of doubt about their validity. Which approach is right? Both have some intuitive appeal. But, with a few qualifications, the job interview model is a better fit for the task at hand.

The criminal justice model appeals to the generally reasonable intuition that we should not "convict" a person of a serious offense without strong evidence and proper due process. But it ignores, or at least seriously downplays, the key fact that rejection of a judicial nomination is fundamentally different from a criminal conviction that is likely to cost the defendant his or her life, liberty, or property rights. It also overlooks the enormous risk of giving a morally unfit nominee an enormously powerful lifetime position on the nation's highest court. The position of Supreme Court justice is ultimately just another job, albeit an extremely powerful and prestigious one. But that factor should make the moral standards for the job tougher to meet, not easier.

When it comes to more ordinary jobs, we readily recognize that applicants may be disqualifed for a variety of possible shortcomings, even if the evidence of their existence falls far short of proof beyond a reasonable doubt. Imagine that you are hiring a babysitter for your children. A candidate applies who has excellent relevant skills, and good recommendations from recent previous employers. But evidence suggests that there is a 20% chance she may have been guilty of child abuse years ago. Few would blame you for rejecting her application on that basis, especially if there were other available applicants with comparable skills, but no such potential taint. Whether evidence of past criminal or unethical activity is disqualifying may vary greatly, depending on the nature of the job, and the nature of the moral lapse. A moral taint that is disqualifying for a childcare worker may not be disqualifying for an accountant, and vice versa. But, at least in a great many situations, a substantial likelihood that the applicant has a history of wrongdoing can be considered disqualifying.

The job of Supreme Court justice is unusual because of the immense power its holders wield, and the great difficulty of removing them or otherwise holding them accountable. Thus, the screening process for justices should be especially rigorous. Factors that may not be disqualifying for a wide range of other jobs - including even a wide range of other jobs in the legal profession - might be enough to justify rejection of a Supreme Court nominee.

Sexual assault is a very serious crime. A person who committed such an offense should not be barred from all employment for life - especially if the crime was committed in his youth, and he has shown repentance since then. But they can and probably should be barred from being a Supreme Court justice, because the position has such vast power, and so little accountability. And that may be true even if the evidence shows "only" that there is a high likelihood that the nominee committed the crime, but is not strong enough to qualify as proof beyond a reasonable doubt.

In some situations, we may need to take a risk on a morally tainted job applicant because all of the alternatives are far inferior on other dimensions. But we don't face any such difficult tradeoff when it comes to Supreme Court justices. Kavanaugh is a brilliant legal thinker and an outstanding jurist. But there are dozens of lawyers and judges with comparable skills, including many who are conservatives who share his general jurisprudential philosophy.

The Supreme Court nomination process is, in any event, not a pure meritocracy. All or nearly all of the people nominated over the last several decades have had impressive qualifications. But few if any were clearly the most meritorious applicants available at the time. Connections, partisan loyalty, and sheer luck are major factors in the selection process, at least as important as merit. Despite President Trump's hyperbolic claim that Kavanaugh was "born" to be on the Supreme Court, it is hard to argue that any particular nominee genuinely "deserves" to be on the Court based on merit alone.

While the job interview approach is the right general framework for assessing accusations against Supreme Court nominees, one key caveat must be kept in mind. When it comes to most jobs, there is little danger that people will cook up bogus accusations in order to derail an applicant. By contrast, that risk is all too real when it comes to Supreme Court nominees. For that reason, the standards of proof for accusations may need to be higher than those we would accept for most other positions, where the risk of deception and fraud is lower.

When the accusations against Kavanaugh first became public, I tentatively suggested that the standard should be preponderance of evidence: an accusation of serious wrongdoing should be disqualifying if the evidence suggests that it is more likely than not to be true. I now think I may have set the bar too high. If there is, say, a 25 or 30 percent chance that the nominee committed a crime as serious as sexual assault, that may be too much to accept for a lifetime position as powerful as a seat on the Supreme Court. But the bar should still be high enough to deter frivolous and virtually unsupported accusations from derailing nominations. We may never be able to come up with a precise line under which, say, a 24% chance is acceptable, while 25% is disqualifying. But the basic idea is that there should at least be enough evidence to prove a substantial likelihood that the nominee has engaged in disqualifying criminal or unethical activity.

Another difference between Supreme Court nominees and applicants for most other jobs is the highly public nature of the confirmation process. A false accusation against the former is likely to attract national attention, and may well permanently taint the nominee's reputation, in a way that losing out on other jobs does not. If Judge Kavanaugh is forced to withdraw because of a false accusation, he cannot simply go back to business as usual. For the rest of his life (and beyond), millions of people will consider him to be a sexual predator. That is a serious wrong we should be mindful of.

But most of the reputational damage caused by plausible, but false accusations will occur even if the nominee is ultimately confirmed. Even more importantly, the imperative of keeping morally unfit people from positions of great power outweighs the potential damage to individual reputations.

Some fear that, in an era of rampant polarization and partisan bias, almost every nominee will be tarred dubious accusations, unless we adopt extremely high standards of proof. But that concern is belied by recent history. Consider, for example, that Democrats were no less opposed to the nomination of Justice Neil Gorsuch - whose seat they believed had been "stolen" from Merrick Garland - as they were to Kavanaugh. Yet, opponents of the Gorsuch nomination were not able to deploy any significant accusations of criminal or unethical activity against him. The same goes for every other nominee between Clarence Thomas (who famously faced accusations of sexual harrassment in 1991) and Kavanaugh, even though this was a period of increasingly bitter conflict over judicial nominations.

Even if we accept the job interview framework, that does not by itself resolve the question of whether Kavanaugh's nomination should be rejected. Reasonable people can disagree over the issue of whether there is sufficient proof of the accusations against him to meet the standard outlined here. There is also plenty of room for disagreement over the issue of what kinds of criminal or unethical behavior is serious enough to be disqualifying in the first place. While I believe sexual assault should be disqualifying, I do not believe that to be true of every type of crime. For example, I think it was a mistake to force the withdrawal of Judge Douglas Ginsburg's 1987 Supreme Court nomination merely because he had used marijuana years earlier. Similarly, I do not care if it turns out that Kavanaugh illegally acquired alcohol when he was still below the legal drinking age. Others may take a different view of these cases.

Accepting the job interview framework does not resolve all the issues surrounding the Kavanaugh nomination. But it does provide useful guidance when it comes to the crucial question of standards of proof.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Ben_||

    If there are no standards, then anyone can vote whichever way they wish, for whatever reason they wish. And no matter how they vote, the decision is perfectly legitimate. And that legitimacy translates to perfect legitimacy for all that justice's rulings. No counter-arguments have any weight at all, because the confirmation vote was 50 + the VP or better.

    Fine with me. That's the approximate reality, regardless of peoples' opinions about it.

  • Dilan Esper||

    That's correct. Too many commentators want to impose bounds on every political process, sometimes by importing legal standards and sometimes by finely parsing constitutional text.

    Political processes abhor formal binding legal rules. The whole point of kicking something to politicians is to allow flexibility based on public opinion.

  • flicka47||

    Wow! The "job interview" ended weeks ago. The hearing was just a witch hunt.

    Just what "proof' do you find "useful"???

    Your standard seems to be "well any jurist can do the job. There's plenty of them out there...just pick one that no one levels accusations against."

    We all know THAT is never going to happen. The left will just find new accusations against ANY candidate the right puts up.

    So, either PROVE your accusations are true or go away. That is the position the left as put us in

  • bernard11||

    The left will just find new accusations against ANY candidate the right puts up.

    Right. Just remember the smears against Gorsuch. Oh. Wait.

  • TwelveInchPianist||

    Gordy has didn't tilt the balance of the court. The dems pulled loads of idiotic crap with Kavanaugh that they didn't with Gorsuch. The bullshit "me too" allegations were just the tip of the iceberg.

  • santamonica811||

    That's some moving goalpost. The left will always do X. But they never did X on the prior nominee. But I think they totally will do it for ALL nominees in the future.

    Pretty dopey logic, IMO.

    I'll also note that Gorsuch did not lie in his prior confirmations, while K apparently did. And G did not have MULTIPLE accusations against him, while K did. And G did not have an accusation against him, while G did (when G was just one of 10 or 15, or 30, or 50 possible nominees). And G seemed honest in his confirmation testimony, while K seems to have lied multiple times, albeit about really small stuff for the most part.

    I think that if K does get the votes, it's not the worst thing in the world. He'll be a reliably super-conservative Justice. But if he does not get the votes, it's because there are lots of questions about his honesty and temperament . . . and that is putting aside the issue of if he abused women in high school and/or college, and if decades-old horrific behavior should DQ someone who had led a good life for 10 or 20 or more years.

    . . . [cont.] . . .

  • santamonica811||

    . . . [cont] . . .

    It is fine to defend K. But to argue that this is being done totally in bad faith just makes people making that argument look like idiots, or like political whores, or like paranoid wingnuts. I have much more confidence in K supporters who say some version of, "Yes, I get why you have concerns. But there is not enough evidence to outweigh his long history of being a good judge, and of being a good person." That, to me, is a good-faith disagreement, and I'd respect (and do respect) the integrity of people who argue for him from that perspective.

  • santamonica811||

    Oops. Stupid lack of edit buttons. Gorsuch, of course, did not have accusations against him when he was just one of many people under consideration. Or ever, for that matter! I meant to type K, of course.

    It is utterly inexplicable why there is no edit button on this website. Grumble, grumble. (And don't even get me started on the inability to hunt for one's prior posts, to see if there have/had been any responses. Again, inexplicable.)

  • TxJack 112||

    Gorsuch was replacing a hardline conservative so Democrats saw the makeup of the Court being unchanged. Kavanagh is replacing Kennedy who has always been the swing vote Democrats and the left counted on to uphold issues they support. They know Kavanagh will tilt the court to the right. Also one has to believe there is a fear in the back of their minds that RGB or Breyer will be forced to retire due to age or health related issues before 2020. If that happens the court could shift even farther to the right. The only time these hearing become a trial is when Democrats are worried about the court shifting right. Thomas replaced Marshall who was the liberal's liberal and that made them insane which is why they pulled out all the stops trying to derail him and this is no different.

  • Lee Moore||

    This is not logical, Captain. If K is not guilty then B-F is not teling the truth. There is of course a small possibility that she is not telling the truth without realising that it is not the truth, but much much more likely, if she is not telling the truth, she is doing it deliberately.

    So to believe that K is not guilty, though it does not absolutely require that B-F is lying, strongly implies that. There is of course the separate question as to whether the Ds have acted in bad faith, regardless of whether B-F's story is true or false. I confess that I struggle to see much of an argument that the Ds have acted in good faith.

    Of course, we're operating in conditions of uncertainty and so we can't be sure who is telling the truth. But if K happens to be innocent there isn't much turf left for B-F to be acting in good faith.

  • Brett Bellmore||

    I don't think there's a lot of room for B-F to be acting in good faith even if K is guilty, given that unnecessary lie about her fear of flying.

  • David Nolan||

    that unnecessary lie about her fear of flying.

    It's claustrophobia. How many times will you people repeat that shameful lie? While ignoring multiple proven lies by Kavanaugh, on top of his evasions and refusals to answer, on virtually every contentious issue. What was he afraid of, perjury?

  • ThePublius||

    That's a pathetic refutation. Whether it's claustrophobia that makes it difficult for her to fly or fear of flying, the result is the same; and she apparently doesn't have this ailment, as she flies all over the place. Thus, a lie.

  • David Nolan||

    and she apparently doesn't have this ailment, as she flies all over the place. Thus, a lie.

    Shame on you. Only shorter flights. Widely reported. The claustrophobia is also confirmed by the 2nd from door added to her house.

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims the legal drinking age was 18, and he was legally allowed to drink beer, but the drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath?

    Check my sources. This will likely now be followed by the typical raging hatred and personal attacks by Trump's loyal cyber-bullies NEVER any SUPPORTED challenge to the known facts.

  • Ben of Houston||

    Lee, I disagree. There have been numerous examples of witnesses genuinely believing their testimony and then later being proved wrong. The longer the time span, the more distorted the memory gets. In short, you don't remember the event. You remember the story of the event, and re-remembering things can embellish the tale like playing a game of telephone with yourself. This is well documented, and the Innocence Project has taken on countless cases of this actually happening.

    I have little doubt that both Ford and Kavanaugh met at a party. I wouldn't be surprised if he attempted to "put a move on" her or misread her body language and tried to kiss her unwanted. These are the sorts of mistakes that young people make (and would have been unremarkable to Kavanaugh, explaining his lack of recollection). I have no trouble believing that half a lifetime of reminiscence can exaggerate an unwanted advance into a flat-out assault.

    I do have trouble believing that someone with no prior or later history of violence would do something like what was claimed. On the other hand, people have hidden evil very well before. Who would have guessed that Bill Cosby, until a few years ago one of the most respected men on the planet, would have been hiding such secrets?

    Really, I see no way to say it definitively. Both stories are plausible enough, and I see no way that an investigation could ever state which is correct.

  • Stephen Lathrop||

    Lee Moore, you miss the possibility that K is not innocent, but is by his own lights truthful in denying he did it—which he could be if he had been so drunk he couldn't remember, or if when he did it, he considered it so routine and insignificant that his memory tossed it in the trash over the years, along with the other routine and insignificant memories that people tend to discard over time.

  • David Nolan||

    I do have trouble believing that someone with no prior or later history of violence would do something like what was claimed.

    You conveniently ignore all the claims that he was a nasty blackout drunk, including his own roommate at Yale.

    Worst of all, he refused, twice, and defiantly, to deny that he was the blackout drunk in Mark Judge's book? Why does he claim he never did such things, except the ONE provable event. Why did he refuse to deny that he is the depicted Bart O'Kavanaugh? (wink, wink)

    The most likely possibility is that he abused her as an out-of-control drunk -- but had a blackout (loss of memory if an alcohol blackout). So he honestly wouldn't recall doing it .. and he's lied repeatedly about his drinking in high school and (early?) college.

  • Lee Moore||

    you miss the possibility that K is not innocent, but is by his own lights truthful in denying he did it

    I don't "miss" it, I ignore it, since it's irrelevant to santamonica's point which was the absurdity/partisanity/whatevery of K defenders assuming bad faith in K attackers. K guilty but unaware of it, is not an argument raised by K defenders.

    Leaving aside santamonica's point, I concede the theoretical possibility that he did what B-F claims, but is currently unaware of it. But I ascribe a very low probability to it. On that tack, a slightly higher possibility might be that he had an encounter with B-F that he saw as harmless and she saw as very much not, and that he has forgotten it (and her) and she has not. But for me all three of these "honest mistake" possibilities (ie B-K correct and K clueless, K correct and B-F clueless, and K and B-F respectively under and over estimating the significance of a teenage encounter, don't add up to a 15% chance. It's much more likely that one of them is lying.

    I would revise my percentage if there was evidence that one of them has significant mental problems relevant to memory, fantasy, psychopathy etc.

  • TxJack 112||

    Not true. She may sincerely believe she is telling the truth and still be wrong. The only people lying are Ramirez and Swetnick. Swetnick proved she is lying last night on NBC when she started recanting and changing her claims likely out of fear of being sued for slander.

  • David Nolan||

    The only people lying are Ramirez and Swetnick.

    Kavanaugh's lies ate MUCH worse. And he has NOT corrected his -- which IS perjury!

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims the drinking age was 18, so his drinking was legal. That's a lie, The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Plus all his evasions and REFUSALS to answer questions about the severity of his drinking - which I doubt he'd allow in his courtroom.

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)

    Check the sources.

    Left - Right = Zero
    Both authoritarian, less than 40% of Americans, and still shrinking..

  • Midwest Lawyer||

    A lot of the people opposing Kavanaugh are doing it in good faith; but a lot of the opposition (particularly those on the Senate staff) are doing it in bad faith. A last minute smear like this is awful. Imagine if someone you don't know were to send letters like this charging you with this kind of behavior - send these letter to your potential employers. You would never get a job.

  • David Nolan||

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims he was legally allowed to drink beer, but his drinking was illegal. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)

    Check my sources. If recent history on this topic is a guide, this will now be followed by the typical raging hatred and personal attacks by Trump's loyal cyber-bullies NEVER any SUPPORTED challenge to the known facts.

    Because: Left - Right = Zero
    Both authoritarian, less than 40% of Americans, and still shrinking..

  • Macy's Window||

    David Nolan: "2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it."

    You are just being a silly ideologue. One cannot honestly deny that an event occurred without also saying that one has no memory of it.

    Conversely, any denial must include the possibility that one's memory is simply faulty.

    Anyone can forget an event that occurred, we all know that. But if you say that you cannot remember something, you have denied it as effectively as possible.

    The only real point is that no one can remember what Ford claims happened and Ford cannot remember the year, the approximate location, how she got there, how she got home. Her story on the number and identity of participants and attackers has changed several times...

    "Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)"

    And yet this out of control drunk has managed to get through Yale, through law school, become a Federal judge, hold a position successfully and distinguish himself professionally, while also coaching his daughter's basketball team.

    If that sounds like a blackout drunk who loses control and rapes women, you don't know much about drunks.

  • Ellis Wyatt||

    One cannot honestly deny that an event occurred without also saying that one has no memory of it.

    You people seem, compelled to public self-humiliation!.
    Kavanaugh said precisely what you say one cannot honestly say!!! (lol)

    And you lied about my words.

    He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it

    And I linked to PROOF!

    You are just being a silly ideologue.

    (sneer)

    The rest is irrelevant. And just as daffy.

  • sk8rjason||

    Your number 1 admits at the end that he was still of legal drinking age in DC, less than 10 miles from his school. Closer to 5 miles.

  • Ellis Wyatt||

    sk8rjason,
    That's not only wacky ... you lied about the source

    Kavanaugh could legally drink in nearby Washington D.C., for the final five months of high school.

    Shameful.

    And you're TOTALLY full of shit on the distance between North Bethesda and D.C. Proof.

    So you're as big a liar as Kavanaugh. Also proven.

    Anything else?

  • TxJack 112||

    Seriously? You are going to attack him and claim perjury over his statement about drinking age and saying four people denied the events? Sorry but saying I do not remember the party and never met Kavanagh is a denial. Saying something never happened is a denial. You like so many others are so obsessed with painting Kavanagh as a monster, you will beleive, say or repeat any statement no matter how ridiculous.

  • David Nolan||

    Seriously?

    Libertarians are neither left nor right, neither Republican of Democrats, so we go with facts, not tribal loyalty.

    You are going to attack him and claim perjury over his statement about drinking age and saying four people denied the events?

    Lies are lies, and the truth is not an attack. His lies and MULTIPLE diversions all relate to his heavy drinking at the time -- which he also denies/

    Sorry but saying I do not remember the party and never met Kavanagh is a denial. Saying something never happened is a denial.

    The first example is not a denial.. The second one is dishonest rephrasing.

    You like so many others are so obsessed with painting Kavanagh as a monster, you will beleive, say or repeat any statement no matter how ridiculous.

    I have facts and sources, You have ... lies and denial

    AS major Jesuit publication America Magazine. has called for Kavanaugh's WITHDRAWAL. His high school, is Jesuit. Are you seriously including Jesuits in your conspiracy?

    His crazy partisan hatred has caused many to conclude he has no judicial temperament ... imagine him judging anything filed by Democrats! Including the lawsuit on Trump's massive violations' of the Constitution's emoluments clause.

  • TwelveInchPianist||

    "Pretty dopey logic, IMO."

    That's because you don't understand the logic. The Dems swore that they would do anything to tank the Kavanaugh nomination, because "women would die" if he were confirmed. They staged a planned protest to disrupt his confirmation hearing, and they loaded the gallery with protesters to disrupt the hearing every few minutes. None of this happened with Gorsuch. Then, when Grassely finally was able to conclude the hearings, it turned out that they had been sitting on this allegation. They had plenty of time to ask about the allegation, or ask for an investigation, but they chose to use the allegation as a political stunt instead, and leaked it.

  • Sarcastr0||

    As Prof. Somin says above, this should have applied to every past GOP nominee as well, and yet it did not.

  • Hasdrubal||

    Even pretty obviously true accusations hadn't worked before (see Anita Hill.) But the worls has changed, and if this works now and keeps Kavanaugh out of the Supreme Court, that changes the the calculus. And the Dems are only half the equation, the Republicans have shown themselves only too happy to turn Democratic strategies back at them, often turned up to 11: The Democrats only used the nuclear option on non-Supreme Court nominees, so the Republicans used it on Gorsuch's nomination. I mean, the Republicans have a couple guys _confessing to attempted rape_ in this instance, what makes you think they won't come up with someone just as crazy for Democratic nominees?

    I don't think there needs to be a very high bar to pass, but I think there needs to be some corroborating evidence. And I think there needs to be a sunset on investigations because I can see a string of accusations come out, each with a request for another investigation.

  • Brett Bellmore||

    I don't think Anita's accusations were "pretty obviously true"; In fact, there were serious questions about them, such as why she followed him from one job to the next after the supposed harassment. It's not like black female lawyers have trouble finding jobs. She gave an explanation for this, but I didn't personally find it very persuasive.

    "The Democrats only used the nuclear option on non-Supreme Court nominees,"

    But had stated before the election, when they were still expecting to take Congress and the Senate, that they WERE going to use it on the Supreme court. "How dare you did to me what I bragged about intending to do to you!"

  • ||

    There's also no philosophical distinction between doing it for non-SCOTUS nominees and SCOTUS nominees.

  • bernard11||

    I didn't personally find it very persuasive.

    Unsurprising.

  • TxJack 112||

    Reid only included non SCOTUS nominees in the nuclear option because it did not appear anyone would be leaving soon. Scalia's death was totally unexpected. No seat has been vacated due to death than retirement. Reinquist died in 2005 but since he had cancer it was not a surprise. Prior to this, the last justice to died in office was in 1954. For that reason, Reid had no reason to think anyone would die and a seatbwould open. He included every other level to permit Democrats to ram through Obama nominees and pack the Federal courts as best they could before he left office. Problem is Democrats never expected to get voted out in 2014 because polling and the media kept telling them how popular they were. I cannot wait to see if the same thing happens this year and their much heralded blue wave fizzles.

  • David Nolan||

    Reid only included non SCOTUS nominees in the nuclear option because it did not appear anyone would be leaving soon

    Speculation. Lame excuse,

  • Lee Moore||

    "The Democrats only used the nuclear option on non-Supreme Court nominees"

    :)

    They didn't have a Supreme Court vacancy to fill in 2013. (And when, as Brett says, there was a vacancy to fill, they announced themselves quite happy to nuke the SCOTUS filibuster.)

    The Germans invaded neutral Belgium in 1914 because it was a useful way round the French defences. They didn't invade neutral Netherlands because it wasn't useful to do so.

    In WW2, they invaded the Netherlands too, because with changing tactics and technology, it was useful.

    Sufficient unto the day is the evil thereof.

  • TxJack 112||

    The Germans invaded The Netherlands because they needed a port on the Atlantic ocean that would not be ice locked during the winter.

  • PoxOnBothYourHouses||

    santamonica811: "That's some moving goalpost. The left will always do X. But they never did X on the prior nominee. But I think they totally will do it for ALL nominees in the future....Pretty dopey logic, IMO."

    I do think that once precedent (whether legal or social) is set, it will be followed, because in politics -- as in war -- one uses new weapons as they emerge.

    There has been a clear trend in this regard.

    Judicial nominees were not routinely bottled up in committee before Reagan and Bush I; this allowed a president from the opposing party (Clinton) to fill those positions. It then became common. Not before Rehnquist was there a partisan filibuster of a SCOTUS nominee. Now there have been three (all by Democrats), Not before Bush II did liberal scholars /call for/ parliamentary procedures to block /any/ Supreme Court nominations, nor was there a serious threat to invoke the "nuclear option" for judicial nominations. Not until the 2000's did SCOTUS confirmations become largely party-line affairs. Not before Obama was the nuclear option actually employed; and for the first time a SCOTUS nomination bottled up. Only in 2017 was the nuclear option finally used against filibusters of SCOTUS nominees. Not until today have scurrilous accusations of sexual improprieties been made about a candidate for the Supreme Court.*

    (continued)

  • PoxOnBothYourHouses||

    (continued)

    The point is that this trend will continue. People will now continue trying to dig up dirt on nominees, minor issues will be blown up into scandals, the press will cover the massaged dirt breathlessly, and ultimately appointments will be characterized by power politics.

    It is naive to think otherwise.

    *[NOTE: I am /not/ claiming that all the accusations are scurrilous, and I frankly don't think Kavanaugh should be confirmed, following his conduct before the committee last week. But! Though I remain skeptical of Ford's accusation (details of which have some serious problems), it is at least credible. The others are not credible at all and strike me as partisan and opportunistic]

  • Bob from Ohio||

    "while K apparently did."

    No he didn't. Its a left wing talking point.

  • Glaucomatose||

    Sure. And Devil's Triangle is a drinking game, and those email exchanges where Miranda said that the internal memos were signed by the Democrats on the judiciary committee went to some _other_ Brett Kavanaugh.

  • Bob from Ohio||

    "Devil's Triangle is a drinking game"

    Are you an expert in pre-internet Catholic prep school slang from 36 years ago?

  • epsilon given||

    What? Don't you think today's Google searches explain how terms have been used in all places, and at all times?

    Whatever happened to "It's on the internet so it MUST be true?"

    Kids these days!

  • Lee Moore||

    Hillary didn't start with the Clinton Foundation. In the early days she was just doing a little cattle futures trading. You learn new tricks and polish your game along the way.

  • TwelveInchPianist||

    Fair enough, but if I'm making a hiring decision, or any other decision, and some stranger with an interest in my decision tries to influence my by saying, "Gee, I never told anybody this, but that guy tried to rape me 35 years ago," I'm going to be very skeptical.

    Contemporaneous allegations made to police should be taken seriously and investigated. Allegations made years after the fact as part of a home remodeling dispute, or screamed at a senator in an elevator, or made to influence the balance of the Supreme Court, should be treated with great skepticism.

  • Rev. Arthur L. Kirkland||

    Fair enough, but if I'm making a hiring decision, or any other decision, and some stranger with an interest in my decision tries to influence my by saying, "Gee, I never told anybody this, but that guy tried to rape me 35 years ago," I'm going to be very skeptical.

    This comment is being applauded mostly by birthers and "lock her up" fans.

  • epsilon given||

    Of course, Hillary's campaign was who started the whole birther movement, and Comey made a clear case that Hillary was guilty before saying she shouldn't be prosecuted...so there's more evidence for malfeasance and recklessness on Hillary's part, than there is against Kavanaugh...

  • SimonP||

    Say you and a colleague are interviewing someone for a job. It's a final interview, and you're pretty satisfied with the candidate, so from your perspective it's a done deal. But your colleague brings up some wild accusation they dug up from googling the candidate, from decades ago. They ask the candidate to explain what happened.

    Now, maybe you, personally, don't view a decades-old accusation that can't be definitively proven as relevant to the candidate's qualifications. You're miffed that your colleague brought it up. But you're already in the interview, so you hear the candidate out.

    Imagine that the candidate responded the way that Kavanaugh did in his hearing on Thursday. He acts as though he's entitled to the job. He accuses your colleague of making a mockery of the process. Of engaging in some kind of "sham" to try to disqualify him from the position. He treats your colleague with massive disrespect and contempt for even bringing up the issue, while categorically denying that it could ever even have happened.

    Does that not strike you as disqualifying behavior, notwithstanding the actual irrelevance of the accusation itself?

  • Mesoman||

    Kavanaugh did not act as though he's entitled to the job. He acted as though his good name was being dragged through the mud. What would you do after the sort of crap he has faced?

    Had he been calm and meek, you'd be saying he disqualified himself because he didn't show enough anger!

  • SimonP||

    Again, is that an appropriate response in a job interview?

  • Lee Moore||

    No, but this isn't a job interview.

    A better analogy would be more like a TV interview. If the interviwer is reasonably fair and asks sensible questions, it would be foolish to get angry with him / her. But if the interviewer is obviously biased, asks loaded questions, constantly interrupts your answers, and paraphrases your answers into the opposite of what you said, then rather than sit and take it meekly, it may be more sensible to push back and call the interviewer out.

    Senators and Congesscritturs in committees have been allowed to get away with the pretence that they are owed deference for their showboating and that people up before them must meekly submit to the most egregious abuse. A nominee who tells them where to get off, in no uncertain terms, is very welcome.

    Miguel Estrada's comment that he would never accept a nomination because it might require him to be civil to Chuck Schumer is one way out. The other is to accept the nomination and forget about being civil to people like Schumer.

  • Bob from Ohio||

    "No, but this isn't a job interview."

    That occurred when Trump picked him.

  • Sarcastr0||

    How quickly the right turns from the muscular advise and consent of yesteryear.

  • Bob from Ohio||

    Advise and consent is a political process, not a job interview.

  • Dilan Esper||

    I rarely agree with Bob, but he is right. Advise and consent is a political process. That's different from both legal proceedings and job interviews.

  • SimonP||

    No, but this isn't a job interview. A better analogy would be more like a TV interview.

    Completely false. He wants to be confirmed to a lifetime appointment to the most powerful court in this country. The confirmation hearing/process is literally the last time he will ever be accountable to the hundreds of millions of people his actions in office will impact. He's not on some publicity tour where he's attempting to spin coverage. He's making the case for why he should be confirmed.

    He's not entitled to this seat.

  • Lee Moore||

    In a TV interview, a politician is trying to acquire votes. If he's a Republican, the interviewer will almost always be hostile. The best policy, politically, for dealing with a hostile interviewer depends on the circumstances. If the interviewer at least pretends to the forms of polite inquiry, then it's usually best to pretend right back. But if the interviewer is openly abusive, meek submission looks like meek submission. It's better to fight back.

    Obviously a politician in a TV interview can use ridicule and humor to puncture a hostile interviewer, but that's harder when you're discussing rape allegations or gas chambers. Then you have to play it straight.

  • Stephen Lathrop||

    Lee, I don't think your comments address the problem. Kavanaugh behaved in ways which, however acceptable for your hypothetical ordinary guy, are absolutely disqualifying for a senior judge on the federal bench. A senior federal judge demanding of a senator to say whether she has a blackout drinking problem—as an answer to her relevant question about his already-confessed drinking problem? That's okay?

    And please, don't even try to answer unless you are ready to say all the rest—the conspiracy mongering, the deflections and evasions, the hyper-partisanship, the maudlin self-regard—were also okay. There isn't a shred of judicial temperament in this guy, and he shouldn't even be permitted to stay in the job he has, let alone be promoted.

  • Lee Moore||

    He's not my favorite for the job. But that relates to his super-insider status.

    But his middle finger to the jackals who only 9 years ago lauded Ted Kennedy as the "Lion of the Senate" was fine with me. I wish more nominees would remind these creatures, and the nation, what loathsome creatures they are.

    As to judicial behavior, it would indeed be disqualifying if he unloaded on a litigant before him in court - a person in his power. But a nominee is in the opposite position to a Judge. They have power over him. So unloading is just fine. As I say, let's have more of it.

  • retiredfire||

    Not completely false.
    If Kavanaugh is rejected, because of this accusation, it becomes evidence that he is a sexual molester TO THE ENTIRE COUNTRY, not just within the confines of a job interview.
    What is ignored by the "it's the same as a job interview" argument is the very, very public nature of the proceeding and the subsequent vote by our elected representatives - the same ones we are supposed to rely on for sober reflection on legislation on a national scale.
    If Brett Kavanaugh wasn't a "public figure", he would be in a position to sue Ford for slander, because the accusation was made to the entire country, unlike in a private job interview office. An accusation that the prosecutor, brought in to question her, said was even less than he said, she said.
    http://apps.washingtonpost.com.....ysis/3221/
    In your average job interview, the applicant wouldn't be held out to the general public as having committed the act for which Kavanaugh has been accused. Something for which he is rightfully angry at that being the result.

  • David Nolan||

    His own fault for lying. And Trump's ego for forcing Kavanaugh into such danger.
    We are accountable for out own actions.

  • TwelveInchPianist||

    "Again, is that an appropriate response in a job interview?"

    If the interviewer falsely leaks that you're a rapist to the national media? Yeah, it's appropriate.

  • SimonP||

    I wouldn't hire someone who dealt with such a situation in the way that Kavanaugh did. I doubt you would, either.

  • Ben of Houston||

    If I was publicly accused of being a rapist by a potential employer, I would never accept the post.

    This is not usual by any measure. Extreme allegations allow for extreme reactions.

  • TwelveInchPianist||

    I wouldn't sit on a rape allegation until the end of the nomination process, then leak it to the media.

  • Rossami||

    SimonP, assume for the moment that Kavanaugh is innocent and that the accusation is false. What exactly would have been the "appropriate response" in a job interview?

    I ask because from the outside, it looks like you're trying to paint him into a 'tails I win, heads you lose' scenario. What hypothetical response to a serious accusation should an innocent man project?

  • SimonP||

    I think that a candidate, falsely charged with something purported to have occurred decades ago, notwithstanding my own private feelings as to their actual irrelevance for the current position, would need to demonstrate the ability to respond civilly and calmly. To say, "I don't recall those events, but i can't categorically exclude the possibility that they might have occurred." To avoid lying transparently about trivial details, in order to avoid besmirching his character. To eschew crocodile tears and such an obvious sense of enraged entitlement.

    The world's not fair, and he's going to be put in some difficult spots. I wouldn't want a guy who reacts to adversity in the way that Kavanaugh did to be on any workforce I'm responsible for. I don't know why we would want him hearing cases that will have a profound effect on our rights and liberties for generations. He's an emotionally unstable, hyperpartisan, entitled asshole.

  • Rossami||

    So in other words, you want him to have reacted exactly the way he initially did.

    I am curious, however, by your expected disclaimer that he "can't categorically exclude the possibility that" the assault might have occurred. What scenario do you see where (remember that we are assuming for the sake of argument that he is innocent) he would not be able to categorically exclude such a traumatic event?

    Re: "lying transparently about trivial details" - see the comments below about the accusations of lying. Looking from the outside, those claims seem very weak and depend on starting from the assumption that he must be lying.

    I have reservations about Kavanaugh's judicial philosophy on several important points. Your claims about his character, however, come across as strained and hyperpartisan yourself.

  • Stephen Lathrop||

    Rossami, you ask good questions sometimes, and this is one of them. His appropriate response is a serene faith that the truth prevails. If his entire demeanor, and answer to every question, was guided by that principle, he would be far better off today. Indeed, if his demeanor and respect for truth had been only on a par with Ford's, he would be hearing his first case on the Supreme Court today. And he would be doing it with the expectation from almost everyone in America that whatever troubles his past might conceal, he had what it takes to respect truth like a judge ought to do.

  • epsilon given||

    Do you really expect us to believe that Democrats would have no objections, had Kavanaugh not been angry? They would be saying "How can an innocent man be so calm in the face of the allegations made against him? He must be guilty!"

    Classic "Heads I win, Tails you lose" scenario. No matter what Ford says, or how she says it, Democrats will twist it to "prove" she's telling the truth. No matter what Kavanaugh says, or how he says it, he must be lying.

  • santamonica811||

    ...and he also lied about a bunch of small things on his resume. Lies that, on their face, seem irrelevant to the job he would be doing. But lied that sort of insult your intelligence. ("Your resume says that you are a life-long scuba diver...but you can't name a single place you've been diving? Your resume says that you have taken 15 master baking classes...but you can't list a single dessert that you can make and you can't discuss the basic steps in making any sort of cake???") When a person tells a bunch of lies at a job interview, is caught, and does not fess up, is it really a show of bad faith if one of the hiring partners says, "I no longer trust this guy. Let's hire one of the other 25 equally-qualified candidates, and let's pick one that will not lie to our faces, okay?")

  • TwelveInchPianist||

    The only people who think that he lied about a bunch of small things are people who don't want him confirmed anyway. For example, the thing about him being a Yale law legacy is a lie by journalists (Yale law doesn't give legacy preferences to relatives of undergrads). And I'm certainly not going to parse bunch of slang on the candidate's yearbook. Nor am I going to say, "You claim that you weren't involved in Project X 20 years ago, but here is a meeting invite where they may have discussed Project X!" This is just desperation.

  • Lee Moore||

    Except that a number of people who are usually on nodding terms with reality (eg bernard, Nate Silver) have convinced themselves that he has told lies.

    But I haven't seen any clear examples. With Trump, a lie is a a good solid honest lie, lounging in plain view. All Kavanaugh's "lies" (that I have seen) require much parsing and editorialising and ignoring context to squeeze into the lie box. But he does seem to have got people wound up into a frenzy.

  • Brett Bellmore||

    Alas, there aren't any numbers present to anchor Nate to reality in this particular case. And, as somebody who follows his site, he needs that.

  • Bob from Ohio||

    "people who are usually on nodding terms with reality (eg bernard, Nate Silver)"

    bernard?

    Silver's mind was broken by Trump winning.

  • Brett Bellmore||

    No, it wasn't. He's always been a raving liberal where he didn't have numbers to ground him. It's just that, if he does have numbers, he DOES let them ground him.

    Which makes him a lot better than a lot of people.

    Still leaves him a bit handicapped, though, in discussing anything not numerical.

  • DavidTaylor||

    "For example, the thing about him being a Yale law legacy is a lie by journalists (Yale law doesn't give legacy preferences to relatives of undergrads)."

    I haven't read all of the journalism on this, but what I've seen is that he claimed to have been admitted to Yale College -- not the law school -- on merit, and withheld the connection he had as a legacy admit to Yale College. At least one article I read mentioned that Yale itself had identified Kavanaugh as a legacy admit to Yale College. Again, I haven't read all of the journalism, so Twelve might have a different source....

  • Bob from Ohio||

    "I go their on my own" is hardly a lie, its a boast.

    Everyone thinks they are self-made.

  • TwelveInchPianist||

    You should read the "journalism" and the transcript..."

    For example, Slate: "At one point in the testimony, when Kavanaugh was making the point that he had worked hard and earned his success, Kavanaugh told the committee that he had no connections to Yale before attending. "I have no connections there," he said. "I got there by busting my tail." In reality, Kavanaugh was a legacy student."

    What Kananaugh actually said: "I got into Yale Law School. That's the number one law school in the country. I had no connections there. I got there by busting my tail in college."

    Other outlets have done this as well. He was not a Yale Law legacy. As I said, why so many journalists feel free to blatantly lie about this topic is beyond me.

  • DavidTaylor||

    Twelve: Thanks for the clarification. I had missed that in my reluctance to be overwhelmed by the craziness in the whole circus.... Dave

  • ravenshrike||

    Except he had already told you multiple times that it never happened. Oh, and while the woman was telling the job board her story 4 of the ten board members kept grandstanding and telling her how believable she was and what a wonderful person she was.

  • bernard11||

    Yes. There was grandstanding. There always is. But there was plenty on the Republican side as well.

  • Lee Moore||

    I can agree on that. I think Senator Graham decided that the hearing wasn't going that well and that it would be best to pile in on the attack on the Dems. Which he did very well, as he's a competent politician. I suspect he agrees with himself on how loathsomely the Dems have behaved, but I've no doubt he's a competent liar, as all good politicians are, so he could have just grandstanding.

  • Joe_dallas||

    The difference is that Kavanaugh's intitial reaction was calm and collected, he provided refuting evidence as best he could, ie denials from all parties named by the accuser.

    The reaction was due to the Dem senators refusal to address fairly the accusation and to appropriately weigh the evidence.

  • bernard11||

    Joe,

    It is the White House that is hobbling the FBI investigation, not the Democrats.

    So who exactly is refusing to "address fairly the accusation?"

  • MatthewSlyfield||

    It's Ford who has hobbled any potential or actual FBI investigation. She can't remember when the alleged party at which the attempted rape allegedly happened occurred. She can't remember where the party happened.

  • Sarcastr0||

    If that's true, then why has the Executive kept the FBI on such a short leash?

  • MatthewSlyfield||

    Because the FBI has a long history of political meddling and should generally be kept on a short leash.

  • Sarcastr0||

    You don't think an investigation could turn up anything useful, but you still want to neuter it because the FBI are bad, and will...frame Kavanaugh I guess?

    It is neat how you've rendered your position about Ford unfalsifiable. Though tautologies are not usually the realm of good arguments, I'm afraid.

  • MatthewSlyfield||

    I don't think the FBI will frame Kavanaugh. As I said, they have a long history of political meddling going back to the very creation of the FBI. They ought to be kept on a short leash in general, not necessarily on this case in particular.

    I don't think there's any point to having the FBI investigate at all, because it's basically impossible that they would come up with any real evidence after 30+ years. The whole thing is a waste of time, and no matter how much time the FBI is given, the Democrats won't accept it when the FBI comes back and says "inconclusive".

  • Sarcastr0||

    I don't see what they would do, and it looks like neither do you.

    Plus, this isn't a short leash, it's directive - you can only interview these people, and don't look into Kav's testimony. That's some BS.

    You don't think the FBI should investigate because the allegations are insufficient without more evidence.
    Which more or less goes against opening any cold case ever.

  • Sarcastr0||

    Looks like the FBI has expanded it's investigation in terms of people, though not in terms of investigating Kav's other testimonial claims.

  • MatthewSlyfield||

    "You don't think the FBI should investigate because the allegations are insufficient without more evidence."

    I don't think it's possible that evidence still exists, and the allegation (no date/time, no location) remains to vague.

    "Which more or less goes against opening any cold case ever."

    If physical evidence was collected and preserved when the crime originally happened, it could be re-tested with newer techniques or compared if a suspect shows up.

    If you have a 30 year old cold case with zero physical evidence, no, there is no point in re-opening it.

  • Sarcastr0||

    First, I don't think you are correct about the threshold for a useful investigation. I did a bit of cold case work for the Innocence Project, and turning up a new witness like Ford demanded at least a bit of investigation.

    Second, there is the second front of Kavanaugh's statements about his drinking and general hellraising in the past. Which the FBI is forbidden from looking into, for obvious reasons.

  • MatthewSlyfield||

    "First, I don't think you are correct about the threshold for a useful investigation. I did a bit of cold case work for the Innocence Project, and turning up a new witness like Ford demanded at least a bit of investigation."

    New witness testimony in a 30 year old cold case with not backed by any physical evidence is probably worthless.

    And in any case, in those cold cases, you likely had solid information on where and when the crime happened. In the case of the Ford accusation we don't have either when or where with any useful specificity.

  • Sarcastr0||

    You need to speculate your way into there 'probably' isn't any evidence. That's why you have an investigation!

    At the very least, it would provide the perception due process.

    Of course, you don't trust the FBI, and seem beyond caring about public perception.

  • epsilon given||

    I'd like to know just what would be proved, if it's demonstrated that Kavanaugh had indeed blacked out on occasion. Does it follow, as night the day, that he's an attempted rapist?

    I don't see how establishing such things get us any closer to the truths of these allegations. It's a red herring.

  • Ilya Shlyakhter||

    Except Ford did tell people from 2012 on, before Kavanaugh's nomination. That distinguishes Ford's report from the two subsequent ones.

  • Lee Moore||

    Assumes facts not in evidence.

    What evidence do we have that there ever was a 2012 marriage counselling session mentioning an assault along the lines now alleged against Kavanaugh, beyond Ford and her husband's say so ? (And the WP claiming to have seen it :) )

    I'm not saying that it never happened, but at present we have no evidence of it. If the FBI get to read the report and interview the counsellor, then that would indeed be some evidence. Though even Ford and her husband's say so suggests that the FBI are not going to find Kavanaugh's name in the report.

    And I'm betting $5 that Ford will not give the FBI the report, or consent to the counsellor speaking to the FBI.

    (If I had to bet on it, I'd bet that there is a report but that it's worthless as evidence, because, even if true, it could refer to hundreds of people.)

  • nonzenze||

    What evidence do we have except eyewitness testimony by 2 of the 3 people that were there?!

  • Lee Moore||

    We don't have any eyewitness testimony beyond that of Ford herself, which obviously adds nothing by way of corroboration to her own story about what happened in, er, whenever.

    Her husband didn't give evidence, but he has I undertand confirmed her story to the newspapers. Which is not evidence per se, but it is not completely valueless, though close to it. If he gives evidence to the FBI under penalty of perjury that will add a little weight to his corroboration. But, as we all know, corroboration by a spouse is, even when given under oath, of very modest weight anyway.

    What would would be useful additional evidence would be (a) the actual counsellor's report of the session in which the sexual assault was mentioned, plus (b) all the other reports of other counselling sessions and (c) the counsellor's confirmation that the report was genuine. Confirmation that the counsellor didn't have any of the same axes to grind as Ford would add even more value.

    But I don't expect the FBI will be getting that. But who knows ? Maybe they will.

    I suppose I should add that Mark Judge's evidence is also of rather modest weight, since he is a co-accused. One would not expect him to confirm Ford's story.

  • John Galt Jr||

    Evasion

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims the drinking age was 18, so he was legally allowed to drink beer. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)

    Check my sources. If recent history on this topic is a guide, this will now be followed by the typical raging hatred and personal attacks by Trump's loyal cyber-bullies NEVER any SUPPORTED challenge to the known facts.

    Because: Left - Right = Zero
    Both authoritarian, less than 40% of Americans, and still shrinking..

    It's over Trumpsters. Deal with it.

  • swood1000||

    1) He claims the drinking age was 18, so he was legally allowed to drink beer. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior.

    In the summer of 1982, when he admitted drinking beer, Kavanaugh was only 17, so how could he be claiming that he was legal at that time? He obviously was explaining how he got the beer, not that he was legal.

  • Ellis Wyatt||

    Pay attention, swood1000

    He claims the drinking age was 18, so he was legally allowed to drink beer. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior

    He obviously was explaining how he got the beer, not that he was legal.

    1) You're obviously full of shit,
    2) You obviously LIED about ... his words THAT YOU QUOTED
    3) You obviously pulled that out of your ass, NEVER checked the source.

    Kavanaugh's exact words are exactly as I stated ... so you obviously never checked the proof he gave you.

    "Yes, there were parties. And the drinking age was 18. And yes, the seniors were legal."

    Also obviously, you're as big a liar as he is.

  • swood1000||

    Pay attention, swood1000

    I think you use this tone because you know people won't respond to it and you can pretend your argument was unrefuted without actually having to engage with anybody.

  • David Nolan||

    I think you use this tone because you know people won't respond to it and you can pretend your argument was unrefuted without actually having to engage with anybody.

    He proved you a liar. And here's the source.

    Kavanaugh said, "Yes, there were parties. And the drinking age was 18. And yes, the seniors were legal" VIDEO PROOF

    Anything else?

  • swood1000||

    He proved you a liar. And here's the source.

    Kavanaugh said, "Yes, there were parties. And the drinking age was 18. And yes, the seniors were legal" VIDEO PROOF

    Anything else?

    How does that contradict the post he was commenting on, which was:

    In the summer of 1982, when he admitted drinking beer, Kavanaugh was only 17, so how could he be claiming that he was legal at that time? He obviously was explaining how he got the beer, not that he was legal.
  • Lee Moore||

    My dear fellow, I wouldn't dream of raging at you. Though I have to admit that I'm not a Trumpster, per se, merely someone who preferred him to Hillary (and still does.)

    Your first example is a lemon. He never claims that he was legally allowed to drink beer. He says seniors were allowed to. As, apparently, they were if they were 18 up until the law changed. You might say that he implies that he was one of the seniors who was allowed to drink beer, but he never actually says that.

    As for the notion that people who have no recollection of being at an event aren't denying that they were at that event, well, as I asked bernard elsewhere on ths thread, if you have no recollection of having been at such an event, how would you express yourself so that John Galt junior would accept that you were denying that you'd been at the event ?

    If these are your best shots at him "lying" they're feeble.

  • Bob from Ohio||

    "Your first example is a lemon. "

    It was not a "lie" in any event.

    A mistake about a matter of general knowledge is not a lie.

  • Ellis Wyatt||

    snort

    , if you have no recollection of having been at such an event, how would you express yourself so that John Galt junior would accept that you were denying that you'd been at the event ?

    YOU ALSO FUCKED UP THE ISSUE.
    IT IS NOT WHETHER THEY WERE THERE ... IT'S WHETHER THE EVENT EXISTED.
    READ THE FUCKING SOURCE HE GAVE YOU.
    Shame on you.

    If these are your best shots at him "lying" they're feeble.

    When (and if) you pull your head out of your ass ... you MAY realize that you're an even bigger psycho liar than Kavanaugh!

    Anything else?

  • David Nolan||

    If these are your best shots at him "lying" they're feeble.

    Since you insist, I will now also prove YOU a liar.

    He never claims that he was legally allowed to drink beer. He says seniors were allowed to.

    When asked about his own drinking

    "Yes, there were parties. And the drinking age was 18. And yes, the seniors were legal" VIDEO PROOF
  • swood1000||

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference.

    And this is evidence on which you are ready to hang a perjury charge? In the first place, Judge said that he never saw Kavanaugh act in such a way. Isn't that a denial? CNN characterized Patrick J. Smyth's and Mark Judge's statements as denials. Are they in the tank for Kavanaugh? Leland Ingham Keyser denies knowledge of the party or of ever being at a party or gathering where Kavanaugh was present, and you would say that referring to this as denying the event is clear perjury?

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh."

    So Kavanaugh responding that they would have to ask Mark Judge what he meant by what he said is an example of perjury?

    Surely you can't be serious about this.

  • Ellis Wyatt||

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference.

    And this is evidence on which you are ready to hang a perjury charge?

    IT;S A FUCKING LIE

    MY LINK SAYS YOU'RE FULL OF SHIT
    YOUR LINK SAYS YOU'RE FULL OF SHIT

    "I am issuing this statement today to make it clear to all involved that I have no knowledge of the party in question;

    You read ONLY the headline, NOT the facts. As bad as Kavanaugh

  • Joe_dallas||

    Galt - your stich is getting old - stale

    You claim of lying by Kav has been throughly debunked.

  • Ellis Wyatt||

    You claim of lying by Kav has been thoroughly debunked.

    You are totally full of shit, Joe_dallas. Again,.

    He linked to proof ... you have NOTHING .,.. as big a bullshitter as Kavanaugh,

  • bernard11||

    I'd like them to get that.

    I'd also like it if Trump weren't putting extreme limits on the FBI. Let them go where the case takes them.

  • MatthewSlyfield||

    "I'd also like it if Trump weren't putting extreme limits on the FBI. Let them go where the case takes them."

    I'd be fine with a no limits investigation as long as the Democrats weren't trying to use it as an excuse to delay a confirmation vote.

  • Sarcastr0||

    Didn't you say above you want a limited FBI because you don't trust them?

  • Ellis Wyatt||

    I'd be fine with a no limits investigation as long as the Democrats weren't trying to use it as an excuse to delay a confirmation vote.

    Do you not realize that you've stated yourself as thoroughly corrupt!

    "I'd be interested in the facts, but the Democrats have a bad motive."

    You have NO interest in the facts, just like most of the Senate Republicans
    Left - Right = Zero

  • bernard11||

    Lee,

    Apparently Ford and a number of others with potentially useful information have tried to reach the FBI and been stonewalled.

    I'll take your bet, by the way. Loser gives $5 to a non-political charity of the winner's choice.

  • Lee Moore||

    "Apparently Ford and a number of others with potentially useful information have tried to reach the FBI and been stonewalled."

    Define "potentially useful information" and "stonewalled." No doubt there are literally thousands of people lined up to offer the FBI "potentially useful information" to investigate. And no doubt the same people would be unhappy if the FBI didn't think their "potentially useful information" is worth pursuing.
    But as for Ford - I'm afraid I don't believe the FBI is unwilling to interview Ford. I'm sure they will be quite happy to listen to whatever she wishes to testify to.

  • Ellis Wyatt||

    Ford has not been interviewed in four days.

  • ragebot||

    As a rule you interview the little fish first and then move up the ladder to bigger ones and then the biggest one last. That way the FBI can say to Ford why has everyone but you said they have no knowledge of your claim.

  • Eddy||

    "In some situations, we may need to take a risk on a morally tainted job applicant because all of the alternatives are far inferior on other dimensions. But we don't face any such difficult tradeoff when it comes to Supreme Court justices. Kavanaugh is a brilliant legal thinker and an outstanding jurist. But there are dozens lawyers and judges with comparable skills, including many who are conservatives who share his general jurisprudential philosophy."

    That's very reassuring. For a while I was worried that there was political pressure not to have *any* justice with a comparable jurisprudential philosophy. Especially if the supporters of an opposite philosophy capture the Senate in the forthcoming elections.

    It's good to know that the Senate can reject Kavanaugh and, no matter what happens with the election, the President will nominate, and the Senate will confirm, a Barrett or a Brown. The only difference of opinion at the moment is not whether to have a constitutionalist, originalist justice but which constitutionalist originalist will get the job.

    In that case, by all means withdraw Kavanaugh's name. Caesar's wife, after all. The President and Senate will simply give us another suitable candidate. And they certainly won't appoint another Anthony Kennedy, Davis Souter or Ginsburg.

  • santamonica811||

    Yeah, this. I think that a new nominee would get appointed before the election. And--worst case situation and the Dem's defy expectations and retake the Senate--this nominee could still be jammed through in the lame duck session.

    I am glad that Trump does not seem inclined to do this. Nothing would motivate the Republican base more than withdrawing K from consideration . . . based on the 2016 election, there are a ton of voters who will go to the polls motivated solely by the desire to get more conservatives onto the Supreme Court.

  • Lee Moore||

    Nothing would motivate the Republican base more than withdrawing K from consideration . . .

    Utterly wrong. If he was voted down by the Senate with a couple of R Flakes siding with the Ds, that would indeed enrage quite a few Rs to the ballot box to try to clear out some of he 6th year moderate D Senators.

    But if the nomination was withdrawn without a vote then the R voters would stay home. They'd still be furious, but fury in relation to surrender would be expressed in furious abstention. Fury in relation to actual defeat is what would get the voters out.

    I'm sure McConnell knows this which is why there'll be a floor vote even if Murkowski, Collins and Flake have already said they'll vote no.

  • Eddy||

    It seems I don't do sarcasm well.

  • Eddy||

    Obviously, there *isn't* any guarantee that if Kavanaugh is rejected, a Barrett or a Brown will be appointed in his stead.

    We might get another Anthony Kennedy. We might get a vacant seat until Trump's term is over.

    Anthony Kennedy, RBG and the rest molested the Constitution; they should never have been "babysitters." Yet if Kavanaugh's nomination is turned down, it's with the known risk of getting a "babysitter" like Kennedy or Ginsburg.

  • Iation||

    "Sexual assault is a very serious crime." -- it depends on your definition of "sexual assault". Unlike other better-defined crimes, such as murder and rape, "sexual assault" is not at all well defined.

  • The original jack burton||

    " opponents of the Gorsuch nomination were not able to deploy any significant accusations of criminal or unethical activity against him"

    The sane Dems understood a conservative was being replaced with another conservative. The balance of the court was not affected. You cannot say the same with the Kavanaugh selection. Apples to oranges in the outrage factor.

  • Brett Bellmore||

    Indeed, their only cause for outrage with Gorsuch was that they'd lost the opportunity to swing the Court in their direction when Garland wasn't confirmed. Second hand outrage at best.

  • bernard11||

    Because plain counter-examples to your pre-conceived notions don't count.

    Sure.

  • Marcus Aurelius||

    If say slap that the climate has changed in the populace. Were getting Kamala Harris explicitly calling for uncivil resistance, and a small but growing vocal cohort embracing it and realizing they won't be penalized. Where in the past vocal and uncivil opposition may have been frowned upon, I think now it will be the norm. On both sides.

  • Ellis Wyatt||

    Were getting Kamala Harris explicitly calling for uncivil resistance,

    Shameful.
    Of you.

  • gormadoc||

    Politicians are opportunists and are not as invested in their own beliefs as we wish or fear. They didn't muck about with Gorsuch because the opportunity didn't come up and it doesn't win any elections to conduct potentially pointless investigations. They're mucking about with Kavanaugh because taking advantage of the accusation/s *does* galvanize their voters, not because they care about Kavanaugh. They're just taking advantage of the opportunity.

  • Brett Bellmore||

    "Some fear that, in an era of rampant polarization and partisan bias, almost every nominee will be tarred dubious accusations, unless we adopt extremely high standards of proof."

    Nobody is asking for extremely high standards of proof. We're asking, is there any proof? At all?

    And we're hearing crickets.

    Actually, it's worse than that, she named witnesses, and they all denied it under oath. That's ANTI-proof.

    "But the bar should still be high enough to deter frivolous and virtually unsupported accusations from derailing nominations."

    I'm becoming convinced the only thing that will actually deter such unsupported accusations, is to abolish the "public figure" rule for libel. Blasey Ford is already better than a half million dollars richer having made this accusation, and faces a future of lucrative speaking fees and possibly even a movie. And having carefully avoided any claims specific enough to be proven false, she has no need to fear perjury charges.

    Only the prospect of a libel judgement stripping her of her profits would balance the scales, and make a false accusation risky, in this climate where a useful accusation will be richly rewarded.

  • Rev. Arthur L. Kirkland||

    Actually, it's worse than that, she named witnesses, and they all denied it under oath. That's ANTI-proof.

    That's just the type of disaffected, backwater law-talking this situation needs!

  • Allutz||

    Yes, the truth is backwater.

    I would have been inclined to believe the accusations if Ford's BFF knew Kavanaugh and remembered a party where she was inexplicably left alone to be the only girl at a sausagefest (which would be pretty disturbing according to all of the girls in my college engineering class). Absent that + the other denials it just seems like a misplaced memory wherein the Judge has replaced a different attacker or an attack has been manufactured in the mind.

  • John Galt Jr||

    What about all of Kavanaugh's many PROVEN lies. (oops)

  • swood1000||

    What about all of Kavanaugh's many PROVEN lies. (oops)

    But you haven't supplied any evidence of lying. See here and here.

  • VinniUSMC||

    Hihnfection's standard of proof is "whatever it takes to get my way".

    Or "fake it until you make it".

  • Rev. Arthur L. Kirkland||

    What is a "Hihnfection?"

  • Ellis Wyatt||

    Rev. Arthur L. Kirkland|10.1.18 @ 9:32AM|#
    What is a "Hihnfection?"

    When they've LOST on the issue .. the snowflakes start babbling about being CRUSHED by a guy named Hihn, using a sockpuppet.
    It's a cowardly deflection -- which is all they've got

    Somehow, this sockpuppet did SOMETHING to make them whiny losers.
    That's all they have, the Authoritarian Right ... infantile hissy fits.

    Right-Wing Snowflakes = Left-Wing A Snowflakes.
    Both "triggered" by any challenge to their robotic minds. Willful tools of the Political Elites.

  • epsilon given||

    What is a "Hihnfection?"

    It's when you get one or two commenters saying things like "left - right = zero" along with lots of bold and ALL CAPS.

  • Ellis Wyatt||

    VinniUSMC (coward).
    He had two sources, with links
    YOU'RE JUST WHINING CUZ YOU LOST

    Marine? A whiny disgrace to the Corps,

  • Ellis Wyatt||

    But you haven't supplied any evidence of lying. See here and here.

    YOU see "here" and "here" ... you've been TOTALLY humiliated in BOTH!!

  • ||

    "I'm becoming convinced the only thing that will actually deter such unsupported accusations, is to abolish the "public figure" rule for libel. Blasey Ford is already better than a half million dollars richer having made this accusation, and faces a future of lucrative speaking fees and possibly even a movie. And having carefully avoided any claims specific enough to be proven false, she has no need to fear perjury charges."

    What we need is a rule that all sexual assault must be made by the later of three years from the alleged date of the incident or one year after turning 18. After that, any accusations will be treated as criminal libel, whether true or not.

  • ||

    Too many people, men and women, don't report sexual assaults already. Under your standard many more would refuse to report.

  • Brett Bellmore||

    We want actual assaults reported, but we want them reported at the time, not decades later. Not just because they can't effectively be investigated decades later, but because real sexual predators don't stop at one victim.

    If Blasey Ford was really attacked, she's in part responsible for the next attack, having enabled it by her silence.

    Not that, after the hearing, I believe she was really attacked.

  • Rev. Arthur L. Kirkland||

    If Blasey Ford was really attacked, she's in part responsible for the next attack, having enabled it by her silence. Not that, after the hearing, I believe she was really attacked.

    When conservatives voluntarily speak publicly about issues involving women, I feel like Tom Sawyer must be standing nearby with a bucket of whitewash.

    Please continue . . .

  • bernard11||

    Not that, after the hearing, I believe she was really attacked.

    After the hearing? Are you claiming you had an open mind before the hearing? That's laughable. The only way you would believe it, maybe, is if there're a videotape or you were there in person.

    You have a history on these things.

  • Bob from Ohio||

    "Are you claiming you had an open mind before the hearing? "

    You are hardly in a position to criticize.

    Nobody here changed their mind because of the hearing. Nor, according to a new YouGov poll today, did hardly anyone else.

  • ||

    Not really. In my experience, people are much more likely to do things when there is a fixed deadline.

  • Marcus Aurelius||

    And seriously, in today's environment where girls are magical and boys are slime, there are rape hotlines and rape crisis teams and $20 million a year to provide rape intervention at each major University... There's no reason not to have a stringent statute of limitations.

  • Ellis Wyatt||

    You seem unaware of how difficult it is for abused women ... including Reagan'ss daughter , Patti Davis, who also described as decades-long silence.

    where girls are magical and boys are slime

    I just explained why your wrong ... and that's even worse. Is your mother proud of what you've become?

  • John Galt Jr||

    So ,... the RightWingPatriiot (sic) ... insults 75% of all sex abuse victims ... Including Ronald Reagan's daugther (Patti Davis)

    But he's MACHO, MACHO MAN!
    (adoring eyes)

  • Leo Marvin||

    "What we need is a rule that all sexual assault must be made by the later of three years from the alleged date of the incident or one year after turning 18. After that, any accusations will be treated as criminal libel, whether true or not."

    Yeah, screw the First Amendment. Right?

  • ||

    The First Amendment doesn't protect libel, and you know it.

  • Sarcastr0||

    Which you can't expand by expanding the definition of libel.

    Why would you care about the law anyhow? You just want to start killing people you disagree with ASAP.

  • Leo Marvin||

    Do you know what libel is and what libel isn't?

    You said "true or not."

    Try again.

  • Rev. Arthur L. Kirkland||

    The First Amendment doesn't protect libel, and you know it.

    Which provision of the First Amendment identifies an exception for defamation, or for pornography, or for "obscene" content, or for child pornograph, or for anything else?

  • ||

    The same provision of the 14th Amendment that protects ejaculating into another man's tuchis.

  • Ellis Wyatt||

    He calls you out as a liar/ So you sink even deeper into the sewer.

  • ||

    The 1st Amendment is not absolute. Banning the making of unsubstantiated rape accusations is a reasonable and common sense restriction.

  • Ellis Wyatt||

    That's not libel and you know it.
    PLEASE get a different handle. You're a disgrace to our genuine patriots.

  • Lester224||

    Under that standards none of the defrocked priests who raped boys and girls would have been defrocked. All the raped would now have been accused of libel.

  • Ellis Wyatt||

    ^THIS

  • Ellis Wyatt||

    ^THIS

  • epsilon given||

    Unless, of course, they made the accusation in the timeframe specified, when there's more evidence to be had, and can prevent more victims early on.

  • bernard11||

    They didn't deny it, Brett. They said they did not recall it happening. Stop with the Kavanughesque evasions.

  • ||

    A distinction without a difference.

  • Ellis Wyatt||

    A distinction without a difference.

    To a total retard. who FAILS every real issue. And I see several such windbags here.

  • Lee Moore||

    In relation to a claimed event that no one except the claimer has any recollection of attending, what would constitute denial ? How could you express denial more emphatically than "I have no recollection of such an event" - I suppose you could add - as the alleged witnesses did - "and I never saw X do anything like what it is claimed he did at this claimed event" or "as well as not having any recollection of the claimed event, I also have no recollection of ever having met X."

    But bernard, tell us, if you wanted to deny that you had been present at an event that, to the best of your recollection had never taken place, and to deny that you'd met someone at this event, who to the best of your recollection, you'd never met - how would you express yourself so as to convey denial ?

  • Ellis Wyatt||

    How could you express denial more emphatically than "I have no recollection of such an event" -

    "I WAS NEVER THERE!

    Educate yourself. "I don't recall" is a well-know tactic to lie and escape perjury.

  • Marcus Aurelius||

    Never there ... where?

  • David Nolan||

    Umm, Les Moore asked how something could be expressed more emphatically.
    Wyatt gave a simple example,which also exposed his false premise..

    Did you not understand the dialogue -- which Wyatt even quoted for you?

  • TwelveInchPianist||

    "They didn't deny it, Brett. They said they did not recall it happening."

    Fake news. The AP claims, "Even Mark Judge, who Ford says was in the bedroom when Kavanaugh sexually assaulted her, has not denied that such an episode took place. His sworn statement to the committee says "I ... never saw Brett act in the manner Dr. Ford describes."

    Given Ford's claim of Judge's role in the incident, Judge's denial of seeing Kav act this way is a denial that the incident took place. Why are supposedly reputable journalists lying so freely with respect to this nomination?

  • John Galt Jr||

    Judge's denial of seeing Kav act this way is a denial that the incident took place. Why are supposedly reputable journalists lying so freely with respect to this nomination?

    The bullshit is yours.
    And the logic sucks.

  • TwelveInchPianist||

    Ford claims that Judge and Kavanaugh both participated in the incident. Judge says he never saw Kavanaugh behaving in this manner. Are you suggesting that Judge participated in the incident, and Kavanaugh participated in the incident, but Judge somehow didn't see Kavanaugh participate? Now that's some high-grade bullshit.

  • John Galt Jr||

    ARE YOU FUCKING RETARDED?

    NOT RECALLING SOMETHING DOES NOT MEAN IT NEVER HAPPENED.
    IT MEANS YOU DON'T RECALL IF IT DID!
    (duh)

  • TwelveInchPianist||

    Are you fucking illiterate? Judge says, "I never saw Brett act in the manner Dr. Ford describes." "Act[ing] in the manner Dr. Ford describes" in this case means Kavanaugh rolling around on a bed with Ford and Judge himself. Judge says that this didn't happen.

  • VinniUSMC||

    Hihn's not illiterate, he's deliberately obtuse.

    Scratch that, that would be giving him too much credit. He's just fucking stupid.

    Hihnfection.

  • David Nolan||

    To: TwelveInchPianist|, MatthewSlyfied, VinnioUSMC

    I didn't see Columbus discover America. Does that mean it never happened?

  • MatthewSlyfield||

    "ARE YOU FUCKING RETARDED?"

    I know you are, but what am I?

    This is the level of response this deserves.

  • Ellis Wyatt||

    I didn't see Columbus discover America. Does that mean it never happened? (smirk)

  • Leo Marvin||

    When someone who wrote a memoir about his life as a blackout drunk tells you he never saw something happen, it goes without saying he means "to the best of my recollection, which may be non-existent for any of the many times I was drunk." So, no. Judge's denial of seeing Kav act a certain way is not a denial that it may have happened at a time and place of which Judge's memory is erased.

    As for pointing that meaningful distinction out being "Fake news?" Please.

  • TwelveInchPianist||

    The AP's "fact check" of Kavanaugh's testimony claims, "Even Mark Judge, who Ford says was in the bedroom when Kavanaugh sexually assaulted her, has not denied that such an episode took place." But Judge, "who Ford says was in the bedroom when Kavanaugh sexually assaulted her" doesn't just deny remembering seeing Kavanaugh act that way, but he denies seeing Kavanaugh act that way. When he would necessarily have seen the assault. Sorry, the AP is fake news.

  • Leo Marvin||

    Did you read my comment? Judge never said it didn't happen.

    The AP article is correct, but even if you think they got it wrong (which you've yet to coherently argue in light of Judge's own admissions about his pathologically defective memory), you haven't even attempted to justify calling their conclusion a "lie" and "Fake News." You can do better.

  • TwelveInchPianist||

    "Did you read my comment? Judge never said it didn't happen."

    Sigh. Judge said he never saw it. He doesn't merely say he doesn't remember seeing it. And if it happened, he would have seen it.

    "I do not recall the party described in Dr. Ford's letter. More to the point, I never saw Brett act in the manner Dr. Ford describes."

    So if you want to continue with your, "neener neener, he only said he didn't see it, he didn't say it didn't happen," about an allegation where he is alleged to be on the bed when it happened, knock yourself out. But that says more about you than it does about the AP or Kavanaugh.

  • Leo Marvin||

    "Judge said he never saw it. He doesn't merely say he doesn't remember seeing it. And if it happened, he would have seen it."

    Of course he would have seen it. That doesn't mean he would remember it.

    "So if you want to continue with your, "neener neener, he only said he didn't see it, he didn't say it didn't happen," about an allegation where he is alleged to be on the bed when it happened, knock yourself out. But that says more about you than it does about the AP or Kavanaugh."

    What it says about me is that I understand that whether or not Judge was on the bed may be entirely irrelevant. I'm going to assume you know nothing about blackout intoxication, because I prefer that to the explanation that you're being disingenuous about an important distinction you dismiss as "neener neener." I'd bet real money that If Judge is honest, he'd tell you that any assurance he gives that he never saw something comes with the caveat that there's a real possibility he did in fact see it, and may have even been on the bed when it happened, but his memory of the incident is non-existent.

    I'm waiting for you to support your accusation that the AP lied and published Fake News. (You do know that "Fake News" has an actual meaning which precedes Trump's appropriation of it to mean "anything in print that I don't like"?)

  • TwelveInchPianist||

    "Of course he would have seen it. That doesn't mean he would remember it."

    But Judge, is not claiming that he doesn't remember it. He's saying that he never saw it. We all agree that if it happened, Judge would have seen it. So Judge's claim that he didn't see it is a denial.

    However, the AP claims, "Even Mark Judge, who Ford says was in the bedroom when Kavanaugh sexually assaulted her, has not denied that such an episode took place."
    So the AP is fake news.

    Now, if you want to argue that Judge's denial is not credible because of his memory issues, fine, but that's not what the AP is claiming.

    But if you want to argue that Judge's denial isn't really a denial, because he blacked out alot, then you are also fake news. Especially in the context of discussing the veracity of Kavanaugh's claim that the allegations were refuted by those who were there.

  • Leo Marvin||

    "But Judge, is not claiming that he doesn't remember it. He's saying that he never saw it."

    Guess what. Every claim never to have seen something is a memory-based assertion.

    "But if you want to argue that Judge's denial isn't really a denial, because he blacked out alot, then you are also fake news."

    Why? Because you choose to selectively draw an inference from semantic hair-splitting, while ignoring what Judge implies about his intended meaning when he admits to a condition that renders every asserted lack of a specific memory subject to the extended periods of unknown number, date and duration for which he has no memory of anything?

    And again, I'm fake news? Not even my argument, but me personally? LOL

  • epsilon given||

    Fun fact: whether Judge never saw it because it didn't happen in his presence, or whether he just doesn't remember it, or whether he saw it and is lying, his testimony cannot be used to corroborate Ford's testimony.

    The fact that three other people Ford listed as witnesses cannot corroborate Ford's testimony *should* cast significant doubt on her recollection of these events.

    There's a very good reason why we have statutes of limitations. The problems of memory -- both the human mind's tendency to forget things, and the human mind's ability to make up and embellish false memories -- are major ones.

  • Ellis Wyatt||

    This is like watching chimps try to discuss quantum physics.

    BOTH Judge and Kavanaugh were heavy drinkers.
    Guess why Kavanaugh keeps lying about that, or defiantly REFUSES to answer (which he would not allow in his own courtroom)

    Do none of you know what an "alcohol blackout is?" It means having no memory of what one did, but not losing consciousness. Mark Judges book describes a classmate who was even WORSE! He puked in a car an passed out. His name is "Bart O'Kavanaugh" (wink, wink)

  • Ellis Wyatt||

    OMFG

    "They didn't deny it, Brett. They said they did not recall it happening."

    Fake news. The AP claims, "Even Mark Judge, who Ford says was in the bedroom when Kavanaugh sexually assaulted her, has not denied that such an episode took place. His sworn statement to the committee says "I ... never saw Brett act in the manner Dr. Ford describes."YOU SAY FAKE NEWS ... THEN PROVE IT'S TRUE!!

  • PoxOnBothYourHouses||

    bernard11: "They didn't deny it, Brett."

    Oh please. For a party and event for which there is no evidence of actual occurrence, statements about not recalling it by people who are positively identified in the allegation as being present, are pretty damning. This is especially true of Leland Ingham Keyser's statement that she does not know Kavanaugh and does not recall ever attending a party where he was present. This despite -- being a good friend -- saying she believes Ford's allegations.

  • Lee Moore||

    I wouldn't say Leland Ingham Keyser's failure to recall the event, and failure to recall ever having met Kavanaugh are "pretty damning." I think "unhelpful" is about as far as one could reasonably go. My youth is filled with parties I attended that I do not recall, and they were no doubt attended by all sorts of people who I do not recall ever having met. Those parties and people that I do remember would be those where something memorable happened.

    Slightly more "unhelpful" is the fact that, if it all happened as Ford describes, she did not mention anything about it to anyone, including her friend Leland, who was at the party at which the assault took place. It is of course possible that a 15 year old girl wouldn't mention it to her best friend afterwards, but in my deep experience of 15 year old girls, keeping an important secret from your bestie is a low probability event. Unless it was something that showed you up in a bad light - eg cheating on your boyfriend. Being groped nastily by one of the boys at the party you've just attended hardly qualifies.

    But not everyone behaves in the same way, so it's possible she was nastily groped and never told anyone. But that seems to me much less likely than that Leland had forgotten all about a party at which, so far as she was concerned, nothing memorable happened.

  • ||

    Not telling anybody, including your best friend, about an attempted rape is scarily common. They don't do it for a variety of reasons, shame, fear of not being believed, fear of losing their job, they don't want to be slut shamed ... happens all the time.

  • Lee Moore||

    Your experience of 15 year old girls is woefully inadequate.

  • swood1000||

    They don't do it for a variety of reasons, shame, fear of not being believed, fear of losing their job, they don't want to be slut shamed ... happens all the time.

    Did she fear being slut shamed by her best friend? Was her best friend amenable to considering her a slut or not believing her? Also, if there was no actual rape wouldn't that reduce the prospect of any shame?

  • Bob from Ohio||

    "failure to recall ever having met Kavanaugh"

    She flat out denies having ever met him.

  • DavidTaylor||

    "Blasey Ford is already better than a half million dollars richer having made this accusation,"

    I am aware that a couple of fund-raising efforts have drawn at least $500,000, but I was under the impression that these campaigns are intended to cover her costs and expenses associated with her accusation. What's the legal limit here? Spending the cash on her expenses is clearly fine, but if there is cash left over, can she pocket it? If someone else set up the fund-raiser, can they, not Ford, pocket any difference between Ford's expenses and the total amount raised?

  • MatthewSlyfield||

    How on earth could she have anywhere near $500K in expenses for this?

  • DavidTaylor||

    That's not an answer to my question, though it raises my question: Assuming that Dr. Ford herself solicited the money, can she keep any that's left over? Assuming that someone else set up the gofundme campaign, can they keep the leftover cash?

  • RoyMo||

    Not a lot of job interviews involve a panel of interviewers where half of them desire the a radically different employee than the other and other seeking to undermine the other half of the committee.

  • Lee Moore||

    Exactly. It's nothing like a job interview. Job interviews are seldom interrupted by your main competitor calling you with allegations of sexual assault against your proposed hire. Sourced from one of their own employees.

    If the Dems seriously believed that Kavanaugh could be demonstrated to be a sexual predator, they'd wait until he was on the Court, and produce some damning evidence and generate a vacancy at a time of theitr choosing. Their behavior indicates that they think the allegations are thin in the extreme and the only use they can be put to is to try to frighten the Flakes of the world.

  • Stephen Lathrop||

    Lee Moore, aren't you asking Ds to believe Rs would vote to impeach one of their own? Where is the evidence for that? We have Trump's self-confessed sexual assault as an example, and no R impeachment call.

    This R party is all about not giving an inch, even if it destroys every last bit of comity left in the nation. Leastwise, the leadership is like that, and it's got things wired to make it impossible for any rank and file to jump ship. I actually bet there are at least 6 R senators who think Kavanaugh shouldn't be confirmed, but won't vote that way.

  • NM-Steve||

    What appears to be overlooked is the fact that there is already "proof beyond a reasonable doubt", at least for a criminal conviction. The uncorroborated testimony of one eyewitness is "legally sufficient" to support a conviction. Kavanaugh should be thankful he is not in front of a criminal judge and jury -- because he could be looking at a future far worse than just maybe not getting a seat on the U.S. Supreme Court.

    Whether you think it is right or wrong, a lot of people are in prison based on cases no stronger than this one. I would be interested in hearing Kavanaugh's thoughts on the irony that he considers this a 'witch hunt' but as a judge he will almost certainly (and probably has) approved of convictions based on less.

    The most shocked criminal defendants I have dealt with are from the wealthy/advantaged parts of society. They are shocked (shocked!) that they could even be accused, let alone convicted, on 'flimsy' evidence such as this. The poor and downtrodden aren't surprised at all.

  • Smooth Like a Rhapsody||

    I have dealt with hundreds of criminal cases.
    Yes horror stories are possible.
    But if you are asserting that the evidence we have from Ford is enough to convict in more than 1 in 5000 cases, I call bullshit on the notion that you've ever handled such a case.

  • NM-Steve||

    1 in 5000? These kinds of cases are not uncommon, and they lose at a higher rate than 1 in 5000 in this area. He said-She said, delayed reporting, no corroboration? I'm handling one such appeal at the moment, and have handled several in the past. The only thing that prevents many more of such cases is statute of limitations. One eyewitness is all it takes to convict, and the jury determines credibility.

  • DaveT1000||

    "These kinds of cases are not uncommon" where the event in question occurred ~35 years ago and the testimony includes a lack of knowing where the alleged crime occurred?

  • Ellis Wyatt||

    Patti Davis -- Ronald Reagan's daughter reported the same thing, in a published op-ed. Of course, she could have sold her soul to George Soros,

    Many other women have stated they recall the exact attack, but nothing else.

    These excuses are both lame and pathetic. I have a clear mental picture and sound of me proposing to me my, over 30 years ago,. and her reaction, NO CLUE of when. where, or even the surroundings.

    Umm, we tend to remember only MEMORABLE EVENTS ... which is why the damn phrase exists. WTF?

  • Stephen Lathrop||

    Smooth, I don't think you're being honest with yourself. You would get many more than 1 in 5000 guilty in Massachusetts, if the defendant were actually Kavanaugh. Take the case to West Virginia or South Carolina, make the defendant black, and what do you think happens?

  • Smooth Like a Rhapsody||

    That being said, however, the OP is right that it's a job interview, and that, therefore B.R.D. proof is not necessary. But something more than "who knows, perhaps he did it" shouldn't be enough.

  • Michael Ejercito||

    In my opinion, preponderance of the evidence should be the standard here, as it is in most ordinary transactions of daily life.

  • Bob from Ohio||

    "The uncorroborated testimony of one eyewitness is "legally sufficient" to support a conviction."

    True but "legally sufficient" is not the same as "proof beyond a reasonable doubt"

    Its the minimum that might, if believed by the jury, support a finding of guilt.

    There is evidence {Kav's testimony] that disputes it. The jury could also believe him despite Ford's "legally sufficient" evidence

  • Jeff_Kleppe||

    Out of all the conspirators who could weigh in on this issue, we get Ilya? Jeez

  • Rev. Arthur L. Kirkland||

    The others are striving to avoid saying anything that might anger Trump, fervently hoping they aren't compelled to tell what they know about Judge Kavanaugh, or just trying to advance the movement conservative cause by being quiet about this.

    They'll be back to sniping at liberal, moderate, libertarian, and RINO persons and positions promptly after this situation is resolved.

  • Mesoman||

    Exactly, his #NeverTrump hackles are up on this one. I think that because Trump doesn't want us to open our borders to anyone who would cross, Ilya has lost his mind.

  • Rev. Arthur L. Kirkland||

    I think that because Trump doesn't want us to open our borders to anyone who would cross, Ilya has lost his mind.

    Prof. Somin is a libertarian. He also appears to be a decent person. His disdain for authoritarian, bigoted, cruel immigration policies and practices should not be surprising to anyone. His lack of regard for what a Pres. Trump might think of him also seems predictable, and appears to distinguish him from the average Conspirator.

  • Leo Marvin||

    "Out of all the conspirators who could weigh in on this issue, we get Ilya? Jeez"

    I agree. Where's David Post when you need him?

  • Sarcastr0||

    Oh, that would be lit.

  • MaverickNH||

    'But evidence suggests that there is a 20% chance she may have been guilty of child abuse years ago.'

    How many uncorroborated accusations and recanted statements comprise a 20% chance? Presumably it will take until 7 November to answer that question.

  • bernard11||

    Meanwhile, Trump tweets about the FBI having free rein, at the same time that he is putting the investigation under strict limits.

    What a sack of shit he and his followers, including Kavanaugh, are.

  • Ben_||

    That's the FBI investigation that was demanded. It's a useless waste of time, just like we all kept saying. But it was demanded. This is it.

  • Rev. Arthur L. Kirkland||

    It's a useless waste of time,

    I disagree.

    I blame my education.

    And my marketable skills.

  • bernard11||

    Here is some more information about about the choir boy.

  • PoxOnBothYourHouses||

    bernard11: "Here is some more information about about the choir boy."

    Huh? What information? Is your link to the article you intended? There is an allegation in this article that has been out there for a while, that is contradicted by statements by another person. Maybe it's true, but it's small potatoes.The main thrust of the article -- really -- is that the Democrats are shocked, shocked, that they won't be allowed a complete, Whitewater-fishing expedition.

  • bernard11||

    Pox,

    Sorry. Wrong link.

    Here is the right one.

  • PoxOnBothYourHouses||

    Thanks.

    I suspect the drinking issue is going to be the killer, and Trump has already begun the process of throwing him under the bus. Excessive drinking, and especially lying about it under oath, is an easier and cleaner hurdle than the sexual abuse allegations -- which are going nowhere but will always be a cloud, unless that guy who has claimed /he/ was actually the one who abused Ford turns out to be legit.

    I guess we'll see.

  • Laird||

    No, the answer is not to hold public hearings at all. The contribute nothing; merely provide a forum for grandstanding. The Senate didn't hold them for the the first 130+/- years of the nation's history; they are an early 20th century invention. Senators should simply interview the candidate, conduct their research, and vote. Hearings are pointless.

  • Bob from Ohio||

    Brandeis was the first nominee to face a hearing. He did not even show up.

  • Rich Dobbs||

    Well, in theory, committees have subpoena power. But I agree with you that going forward, hearings are pointless. Might as well just admit that the Supreme Court is entirely political, and start adjusting our practices accordingly.

  • John Galt Jr||

    There's also the matter of his multiple proven lies. Under oath.
    Plus the total lack of judicial temperament, Thursday. Attacking and evading all the "inconvenient " questions.
    Would he allow such behavior in his courtroom? For even the most minor offense?
    Shameful.

  • ||

    What lies? Prove that he made false statements knowing that they were false.

    As for the judicial temperament, the idea that he was supposed to not be angry and upset over these accusations is absurd.

  • MoreCurious||

    Report back to us tomorrow after you've waded through this article. If you can refute it, please do. Conveniently for you, the article addresses both his lies and his phony indignation.

    www.currentaffairs.org/2018/09.....h-is-lying

  • Beldar||

    I stopped reading that article when it disingenuously, disgustingly mischaracterized Judge Kavanaugh's phrase "gathering like the one Dr. Ford describes in her allegation" to mean "gathering where beer was served" — and then insisted that Judge Kavanaugh's calendars, with its references to "[brew]skis," thereby prove him a liar.

    That's slimy. I consider that crap alone enough to consider this article "refute[d]." And yeah, it also fails to corroborate your own allegation that he's lying.

    This is not a good blog for commenters who have read someone's intellectually ignorant

  • Beldar||

    Sorry, a blown html tag ended that comment mid-sentence, but I was trending ad hominem, so it's just as well. Suffice it to say I think that's a BS article.

  • MoreCurious||

    Thanks for sharing your pain. Maybe you'll feel better if you put in the mental effort to read the article. Be sure to let us know if the facts get in the way of your opinion.

  • TwelveInchPianist||

    He read the article. I read the article. Kavanaugh didn't claim that he never attended a gathering where a couple of people were drinking beer, he claimed that he never attended a party like the one described. So unless you can show that the allegation is correct, his claim is non-falsifiable.

  • TwelveInchPianist||

    The Current Affairs article also dishonestly claims that Judge never said that the incident never happened, but what he said amounted to precisely that.

  • John Galt Jr||

    Yeah, he claimed he never attended a small gathering of 4-5 people ... which may be his craziest lie of all.

  • John Galt Jr||

    That Current Affairs is the best summary yet of all his many lies. What pissed me of was watching him evade and dissmemble on every key question, Especially his snotty refusal to deny he was the blackout drunk in Mark Judge's book, a classmate named "Bart O'Kavanaugh." (wink, wink)

    This whole thing is like Monty Python for insanity, plus all the hatred oozing like puis from both sides.

  • John Galt Jr||

    he idea that he was supposed to not be angry and upset over these accusations is absurd.

    What's absurd is your bizarre assumption that's what it means,

  • AmosArch||

    It's not a job interview. It's a job interview with an opponent with billions of dollars in resources willing to do anything to sabotage the candidate and seat another less qualified candidate and might get their chance if the reps don't sack up and push this through in a timely fashion.

  • DavidTaylor||

    "seat another less qualified candidate..."

    I'm not a legal historian, but thinking of recent cases in which a nominee has been rejected, the individuals who ultimately were seated in the Supreme Court were not exactly "less qualified." Obviously the Democrats would like to get another Anthony Kennedy nominated if Kavanaugh is rejected, but did anyone really regard Kennedy as "less qualified" than Bork or Douglas Ginsburg? Or Samuel Ailto as "less qualified" than Harriet Miers?

  • ||

    If you consider "qualified" to mean "won't rule that the due process clause creates a right to kill fetuses and have gay buttsex," then yes, Kennedy was less qualified.

  • Rev. Arthur L. Kirkland||

    It's not a job interview. It's a job interview with an opponent with billions of dollars in resources

    How many government employees have devoted their professional lives to promoting Judge Kavanaugh's confirmation recently?

    How many millions of dollars and thousands of hours have been devoted to Judge Kavanaugh's cause by the Federalist-Judicial Crisis Network-Heritage-Republican network?

    Your point is silly. But carry on, clingers.

  • epsilon given||

    You have hardly refuted the claim. All you have pointed out is that it's high stakes on *both* sides.

    And it's not at all going to change when a Democrat starts nominating people, is it?

  • Ellis Wyatt||

    All you have pointed out is that it's high stakes on *both* sides.

    Umm, that's all he had to do to demolish the fallacy.

  • epsilon given||

    What fallacy? That there isn't billions of dollars invested in keeping Kavanaugh offthe Court?

  • Beldar||

    When the opponents to a particular job applicant's hiring (confirmation) seeks to effectively short-circuit and abort the job interview process by making an allegation of criminal misconduct, it fundamentally transforms the exercise for so long as that allegation is the center of attention.

    And as long as that allegation of criminal misconduct is the defining issue, due process is what justice is all about.

    Prof. Somin effectively argues that we ought forget justice. I emphatically dissent, and hope he's never under this kind of microscope himself.

  • bernard11||

    The only short-circuiting is being done by the Republicans.

    "Memos, emails? No. Top secret stuff."

    "FBI investigation? OK we'll have them talk to 2 or 3 people."

  • donojack||

    And therapist's notes, right?

  • mydisplayname||

    Yes, it's a job interview, in that the person in charge -- the majority -- should be able to assert his opinion -- which may be factually-based or otherwise. Political bias helps, not hurts, the process by increasing polarization: it IS a job interview and the view of the boss -- the majority -- counts while the view of the plebeians (in this era we call them "Democrats") is relevant only to the extent that such view is backed by arms ("2nd Amendment rights").

    Isn't it ironic that the view of the minority is protected almost entirely by a right to armed revolt? How kind -- or cruel -- is it to say "Hey, little Democrats, if _YOU_ want to speak, pick up a second amendment weapon and walk a post."

  • Ben_||

    If Democrats wanted minority voices to count for anything, they could have kept the filibuster in 2013.

  • jph12||

    Or not given Mitch the excuse to do away with it for Supreme Court nominees with Gorsuch.

  • bernard11||

    Yeah. We saw how respectful Republicans were of Kerry.

    And for all your military bluster you're 100% behind President Bone Spurs.

    Cut the crap.

  • Peter Gerdes||

    Also, even ignoring motivated accusations, there is the simple fact that someone who is a national figure is far more likely to be falsely accused as a result of the poor quality of human memory (e.g. the way eyewitness testimony and memory can replace actual, even traumatic events, with individuals seen in other contexts). Unfortunately, we find this aspect of our memory highly counterintuitive.

  • Peter Gerdes||

    I'd add that I say this as someone who believes Kavanaugh's subsequent actions in his hearing should be disqualifying regardless of the truth of the accusations.

  • ||

    What "subsequent actions" would those be? Getting upset over a false rape accusation? Confronting that b*tch Klobuchar?

  • Rev. Arthur L. Kirkland||

    Confronting that b*tch Klobuchar?

    Artie Ray Lee Wayne Jim-Bob Kirkland asked me to remind everyone that the Volokh Conspiracy enforces strict standards with respect to comments and engages in the level of censorship exhibited by authoritarian campus administrators.

    Sometimes, anyway.

  • David Welker||

    Appeals to the fallibility of memory only get you so far. If we thought memory was totally unreliable in all circumstances, we would have little reason to allow eye witness testimony at all, except to assess credibility.

    I think that talking about the limits of memory and further research on this topic is very important. But some of the arguments go so far to the extent that they suggest that people are incapable of remembering anything at any time or in any circumstance. It may be the case that people overestimate the ability to remember. But it would also be a mistake to underestimate it.

    An analogy may help you get what I am saying. Imagine you were calibrating a scale. If the scale were off in one direction or the other, you would want to correct. But not overcorrect it either. In fact, overcorrecting a scale that is off may result in less accuracy after your calibration than before it.

    Memory is not perfectly correct. But it is not perfectly incorrect either.

  • Brett Bellmore||

    What a lot of people don't realize, is that memory is malleable. The first time you remember something, you're remembering what happened. The second time? You're remembering some mix of what happened, and of having remembered it. The third time, the original memory is even more contaminated.

    Basically, when you obsess about a memory, keep recalling it over and over, you're playing a game of "telephone" with yourself. The memory becomes more of a story you're telling yourself.

    It's sad, but people don't really remember the events of their long ago childhoods. They just remember the stories they've told themselves about it.

  • ||

    Or the stories OTHER PEOPLE have told them about it. I'm convinced a large percentage of my memories from age 4-10 are based on what my parents told me about them later in life.

  • David Welker||

    A large percentage is not the same as all of your memories. Are there not any memories you have from childhood that you have high confidence in?

  • David Welker||

    Are you saying that all of your own memories from childhood are wrong? Completely wrong?

    If you were to tell me your life story from your own memory, are you saying it would be mainly false?

    That is not how my memory works. I do remember things, although not perfectly. And memory is not completely a function of time either. Probably one of my earliest memories is getting in trouble after I opened the cage door where our bird lived and falling asleep. When I woke up, my dad was chasing the bird around the house trying to catch it. And I got into big trouble.

    I remember that better even though it is an old memory than many more recent events, many of which I do not have a memory of at all.

    I think memory is complicated. It is not something that is completely inaccurate or completely accurate.

    You make it sounds as though all memory is false. That no childhood memory of being molested by a priest could possible be true, for example. But that is not true.

    Even as we seek to have a better understanding of memory and its limitations, it is very important not to over-correct either. And we also don't want to under-correct.

  • epsilon given||

    This is why it's so important to find corroborating data, and to be skeptical of memories that either lack corroborating data, or even contradict it.

  • JFree||

    This was imo at issue with Ford's recollection. The 'missing barking dog' to me was - if the event WAS as traumatic as she describes, why did she not use any of the techniques she was learning of clinical psychology during the 80's and 90's to self-analyze her own trauma? She would have as a budding professional kept those clinical notes and even if it is not legal evidence it IS good evidence that the trauma happened. But my guess is those notes show that the memory/event itself morphed over time

    If I were to guess what did happen it is that Kavanaugh DID do something then that made her angry even then - perhaps handsey gropey and belligerent. Angry enough to remember that HE is the one who did it. The sort of stuff that often results in a hard slap if an older woman is the recipient. But the fear is created later as she reflects on it.

    But even with that flaw, I find Ford's memory far more credible than Kavanaugh's. His altar boy routine (presumably a memory not a fabrication) is just simply overt bullshit. He's found NOTHING in his life that he's man enough to acknowledge was a mistake and admit he would have done differently or apologize for? Having daughters has not changed him one iota re how women should be treated or how he treats women? What a crock of crap.

  • Pettifogger||

    I agree that beyond-a-reasonable-doubt is too onerous a standard in vetting judicial nominees. But does a last-minute, uncorroborable accusation of long ago misconduct rise to the standard of reasonable suspicion, especially when the accuser has both personal and political reasons to bear animus to the accused? I think not.

  • A Thinking Mind||

    But the problem is that these allegations are so vague, so far after the fact, and lack any sort of substantiation, that what is to prevent EVERY candidate from having these sort of allegations flung at them at the last second. If we set the precedent that you can stop filling this job by waiting until the last second and then making accusations with no way to even corroborate them, will we ever get the Supreme Court vacancy filled?

    Presumption of innocence is more than a right or a legal standard, it's a principle. I don't require everyone I interact with daily to prove that they aren't a rapist, I'm willing to presume they're not a criminal without asking them for evidence. Basic trust is the fabric of a functioning society.

  • JFree||

    Basic trust is the fabric of a functioning society.

    If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

    No - trust is NOT the fabric of government. Presuming that someone is an angel is simply sticking one's head in the sand re the potential threats that may arise when they acquire power as well. Do that enough times - and the whole point of the partisan machinery is precisely to make sure that their side will always presume their side is angels so nothing is needed to control them - and you render any institutional check on that power irrelevant.

  • floridalegal||

    Proposing a standard for assertions in the confirmation process assumes that there is a desire for a standard. This is purely a show for fundraising and catering to cameras and radical fringes of political bases. We can all look forward to baseless assertions for partisan purposes as the basis for any confirmation hearing. I never thought I would use Senator Strom Thurman (who ran for president on the Dixiecrat ticket) as a shining example of civility but, even he could put aside politics to vote to confirm a general counsel for the ACLU and other groups he had nothing in common with politically, Is there one Democrat who can evidence this level of civility and civic duty?

    The new lows. Bork, Thomas and now Kavanauugh

  • MikeM||

    A question I've been thinking about is what does "advice and consent" actually mean? If this process is a job interview, isn't the President the one doing the hiring? And if that's true, what should the Senate's standard be for rejecting someone who has already "passed" the interview and been "hired" by being nominated you the President?

  • PoxOnBothYourHouses||

    MikeM: "what should the Senate's standard be for rejecting someone who has already "passed" the interview and been "hired" by being nominated you the President?"

    Let's ask that of Merrick Garland.

  • handsoffmypineapples||

    I'd like to get Joe Biden's input on this too...

  • JFree||

    Roger Sherman - gave the best rationale for why the Senate should be very involved in the advice part. That it isn't an executive privilege. From a letter to John Adams:

    The executive magistrate is to execute the laws. The senate, being a branch of the legislature, will naturally incline to have them duly executed, and, therefore, will advise to such appointments as will best attain that end. From the knowledge of the people in the several states, they can give the best information as to who are qualified for office; and though they will, as you justly observe, in some degree lessen his responsibility, yet their advice may enable him to make such judicious appointments, as to render responsibility less necessary...

    If the president alone was vested with the power of appointing all officers, and was left to select a council for himself, he would be liable to be deceived by flatterers and pretenders to patriotism, who would have no motive but their own emolument. They would wish to extend the powers of the executive to increase their own importance; and, however upright he might be in his intentions, there would be great danger of his being misled, even to the subversion of the constitution, or, at least, to introduce such evils as to interrupt the harmony of the government, and deprive him of the confidence of the people.

    Relying solely on consent gets us to where we are today. Extending the powers of the executive with virtually every election.

  • DrCoke||

    "Sexual assault is a very serious crime."

    Almost as serious as convicting -- let's not mince words -- someone based on mere (and almost certainly false) accusations sexual assault.

  • nonzenze||

    We hereby sentence the defendant to lifetime tenure on the DC Circuit.

  • mad_kalak||

    As well as being a public outcast like a leper, his reputation shred, mkay?

  • ButWhatDoIKnow||

    Kavanaugh's public service over the past 20-30 years, his vast number of written judicial opinions (but nary a complaint or criticism about his "judicial demeanor"), his exemplary family life and community service, his strong religious upbringing and current active religious practice, his judicial ratings and recommendations falling in the highest categories....

    ... none of this personal and/or professional history is weighed and balanced against this utterly vague & shadowy assertion that has no corroborative evidence whatsoever? That has no time or place to verify? That the alleged corroborative witnesses state that they never attended any party such as is described? An allegation of an act that is described as near-rape, but for which we have only one story teller? A story teller who cannot remember recent events such as, among other things, whether she took a polygraph on the day of or the day after her grandmother's funeral, or when she gave the therapist's notes to the press.

  • ButWhatDoIKnow||

    (cont'd)

    One of these two people has been living and working under public scrutiny for almost 3 decades, while the other has remained unseen and unheard until it became politically expedient to step into the limelight, protestations of wanting to avoid disclosure notwithstanding (she got her lawyers and polygraph in August, before anyone but Feinstein & Co. knew of her -- why?)

    Sure, it's not a trial, nor is it truly a job interview as commonly understood. But there is no reason why common sense and a sense of decency should be ignored.

  • Eddy||

    About 1/3 of the Senators are also interviewing for their jobs.

  • iowantwo||

    This is just an eloborate prank isnt it? A real professor cannot be this stupid, He thought he was posting to the Onion, and got confused.

  • Rev. Arthur L. Kirkland||

    Your confusion is somewhat warranted -- the Conspiracy generally provides reliably orthodox movement conservatism, but Prof. Somin provides occasional libertarian leavening.

  • DK_SD||

    Ilya: Though there are, on paper, dozens of highly qualified people available for a Supreme Court position, there are very few who are truly 'qualified' in that they're sufficiently acceptable to the President + Senate such that they could be both nominated and confirmed. I don't think it's as easy to pick a Kavanaugh replacement as you imply. And to extend your job interview analogy, employers can't always be too picky about who they hire if they're actually interested in filling a position. There is a real cost in time, money, and productivity to leaving a position unfilled while you search for a better candidate, and I think that cost is missing from your analysis. I understand the appointment is for life and that it's wise to do a thorough and extended interview, but the time required to do that should not be infinite. Right now the Supreme Court only has 8 justices and, depending on how things go in the next few weeks, could remain shorthanded through 2020. Do you believe the potential flaws in Kavanaugh's background are sufficiently concerning that you would prefer to see the position unfilled (and the Supreme Court caseload necessarily reduced) for years?

  • Dick King||

    Okay, maybe it's a job interview. Fair enough.

    There are societal norms as to what level of evidence we require to support allegations of criminal behavior before we nix a candidate.

    link

    I summarize the relevant part: For an employer in the District with eleven or more employees, employers may not ask about arrests or convictions on the application, and they may not execute a negative action based on an arrest not followed by a conviction or guilty plea, unless the case is still pending.

    This didn't used to be the case. When I started my career in 1972, and for about ten years after that, it was considered reasonable for an employer to have a checkbox on their application asking about mere arrests, and to reject applications with that box checked summarily. This changed in the 80's; it was and is no longer morally acceptable, or legally acceptable in any jurisdiction within which I've ever applied for a job, to give any weight to a mere arrest.

    Obviously this is a special circumstance, but when thinking about what level of corroboration we require for the Dr Blasey changes to scuttle the Kavanuagh nomination, societal norms that require a lot more than a preponderance of the evidence for an adverse career effect appear to be in place.

    --dk

  • David Welker||

    An arrest, to be legal, requires probable cause. That is a lower standard than preponderance of the evidence. Furthermore, it is not uncommon for police to arrest people when they lack even probable cause. We certainly wouldn't want a mistake by a police officer who is not even following the law to derail someone's career.

  • ||

    What also bothered me about Kavanaugh is that I really think he lied about the silly questions about the yearbook. If he is willing to lie about inconsequential small stuff to make himself look better, what will or does he do with more serious issues?

  • ||

    Or he might not remember. I don't recall ever slang term I used regarding barfing and drinking from when I was 18, and I'm a lot younger than Kavanaugh.

  • ||

    If you want a date call Renate is not exactly code. Renate Alumnus was not about being inclusive to a friend. If so why didn't they show her the yearbook. She said she had never saw it.

  • epsilon given||

    Do you go around showing your yearbook to everyone? I didn't do that. Indeed, it's even been years since I've dug out my yearbooks!

  • Ellis Wyatt||

    Relevance?

  • Bob from Ohio||

    You are an expert in 1982 Catholic prep school slang?

  • Ellis Wyatt||

    It's been widely reported as a lie. By experts,
    Many of us read outside some deep tribal cave.

  • DajjaI||

    I agree but the problem is that in order to determine whether it's likely that he committed the crime, you have to interview people. And people will be reluctant to talk because MD has no statute of limitations on attempted rape. Even if someone doesn't like Kavanaugh, they don't want him going to prison for this caper.

    Kavanaugh already claimed that his entire life was destroyed. I think he should just withdraw his nomination.

    Merrick Garland for Supreme Court 2018 approves this message.

  • John Galt Jr||

    Statute of limitations

    Police Chief and State Attorney in Montgomnery County, where the assault allegedly occured

    In a letter, the police chief and state attorney in Montgomery County, where the assault allegedly occurred, said they would not investigate the incident without a complaint from Ford. They also noted they could do little to prosecute such a case — assault and attempted rape were misdemeanors in 1982 and subject to a one-year statute of limitations.

    I later read that a misdemeanor in that state does not mean a minor crime, as it does elsewhere.

  • epsilon given||

    So, you're saying that the Republicans should have destroyed Merrick Garland's character, rather than just follow Biden's Rule and refuse to vote for him?

  • Sarcastr0||

    If Garland has a shady past, I'd expect the GOP to look into it, just as the Dems did here.

    Complaining about Democrats delaying now is some pretty high-level hypocrisy.

  • epsilon given||

    How far have the Republicans been willing to dig to find dirt, however? We have recently learned of a police report -- one apparently never dug up by the FBI (or, if it was, it was considered insignificant) -- of Kavanaugh throwing ice at someone in a bar.

    How many of these little incidents are there, waiting to be found, of all candidates? And how many lowlifes are there, on both sides, willing to make "credible" claims against a nominee, for cheap political points and book deals?

    You say that Republicans would be willing to get dirty, yet oddly enough, so far only Republican nominees have been subjected to this treatment. Considering that the Democrats count among themselves people like the "Lion of the Senate" Chappaquidick Kennedy, I would be *very* surprised if Democrat nominees were 100% squeaky clean!

  • Perseus`||

    It's not a typical job interview precisely because political partisanship substantially increases the desire to block a nominee. Lowering the threshold to a mere 20% isn't going to result in any old groundless accusation being made, but it will result in each party making more claims that have a low probability of being true. That's not fair to the nominees of either political party.

  • David Welker||

    Maybe being "fair" to nominees should not be our first priority when selecting a Supreme Court Justice.

    You are talking about being fair to one person. I think it is more important to be fair to the millions of people who are affected by that one person's decisions if they are confirmed.

    Basically, if we get someone bad on the court, that does much more damage than rejecting someone who would be good. There are many people who would be good candidates, including many people who have views and skills very similar to Kavanaugh.

  • swood1000||

    There are many people who would be good candidates, including many people who have views and skills very similar to Kavanaugh.

    Not if it becomes common to manufacture allegations against nominees that have a 20% chance of being true but a 100% chance of destroying the nominee's reputation. An easier one would be "I heard the nominee use the N-word in a racist way." He's toast under the proposed new rules, unless he can prove that he never said such a thing, and the failure of anybody else to ever had heard such a thing does not constitute such proof (under the new rules).

  • David Welker||

    So you are saying that we should accept Kavanaugh, even if there were a 1 in 4 chance or a 1 in 5 chance that he committed an attempted rape, because otherwise no one who is any good will want to be a Supreme Court Justice?

    I just don't think that is true. First, most people simply will not be a position where someone could make an accusation against them and we would then conclude it has a 1 in 5 or 1 in 4 chance of being true. It is rare for accusations of sexual assault to be made against nominees. It is pure speculation to think there will be some sort of explosion of accusations. Second, the job of Supreme Court Justice is considered highly desirable to many people. I think quality people will always want the job enough to undergo scrutiny.

    Finally, I just don't think we should accept a very high probability that someone truthfully accused of sexual assault gets on the court. As I said, rejecting someone who is good is less of a problem than accepting someone who is bad.

  • swood1000||

    So you are saying that we should accept Kavanaugh, even if there were a 1 in 4 chance or a 1 in 5 chance that he committed an attempted rape

    What chance would you assign to an allegation having these characteristics?

    Bill Clinton was charged with rape by Juanita Broaddrick. What chance do you assign to the truthfulness of those allegations? Did all the Democrats vote against removing him from office because those allegations did not appear truthful? If so, what are the principal differences between those allegations and these, with respect to the likelihood of truthfulness?

  • ||

    How could you possibly say that "most people simply will not be a position where someone could make an accusation against them and we would then conclude it has a 1 in 5 or 1 in 4 chance of being true?"

    In this case, all we have is an uncorroborated accusation from 36 years ago. The accuser can't remember the time, date, or place. Unless a man spends his entire life with a video camera trained on him, your statement is false.

    Voltaire: "It is better to risk saving a guilty person than to condemn an innocent one."

    David Welker: "As I said, rejecting someone who is good is less of a problem than accepting someone who is bad."

  • swood1000||

    Voltaire: "It is better to risk saving a guilty person than to condemn an innocent one."

    True, but merely denying a promotion to someone is not the same as condemning him, assuming that such matters are handled confidentially and his reputation is not savaged in the press. It seems reasonable that a higher standard of conduct is required, beyond the mere absence of legally sufficient incriminating evidence. But it's not reasonable to deny the promotion where there is an absence of any compelling evidence and in fact evidence to the contrary (as in this case).

  • jph12||

    "even if there were a 1 in 4 chance or a 1 in 5 chance that he committed an attempted rape"

    Pretending to be able to assign numeric values to the likelihood that the allegation is true is silly. He either did it or he didn't do it. You can talk about how convinced you are that he did it, but that's something different. And that number is going to vary widely from person to person, which makes it pretty useless as a metric for anything other than whether a particular person should vote for him.

  • David Welker||

    It is true that he either did it or he did not do it. That is a fact about the world.

    But we will never know what happened with certainty, so we can talk about probability in a short-hand sort of way to represent our confidence that one outcome or the other is true.

    As far as the number varying from person to person, I am only talking about the standard by which an individual should make a decision. Maybe if Senator X thinks there is a 1% probability that the accusations are true, they should vote to confirm whereas if Senator Y thinks the probability is 99% likely to be true, they should vote to deny confirmation. Of course, it would be interesting to know why these Senators have such a different assessment of the evidence.

    Look, we pretty much face the same problem in all civil or criminal trials, neither of which require absolute certainty for a verdict for the plaintiff or the prosecution.

  • epsilon given||

    Take it from a mathematician: talking about probabilities only make sense if you have solid reasons -- either a way to calculate them directly, or a lot of data to approximate them.

    Otherwise, talking about "probabilities" is merely pseudoscientific babble, meant to give more weight to claims that deserve no sense of certainty whatsoever.

  • Allutz||

    I'm confused why this "job interview" vs. "criminal trial" dichotomy keeps being brought up. It is irrelevant unless we are discussing only public interviews with high stakes. Recently my father ran for office and there were flyers distributed claiming that he had charged cigars to the taxpayer in 2003 (ran in 2016). This was blatant defamation, he went to a required meeting in the state capital, and paid for his hotel (which was reimbursed) using the same credit card that during the same charging period he used to buy cigars (and groceries and other normal stuff), but was only reimbursed for the hotel, which is evidenced by the dollar amounts. When that was revealed the local papers called the other candidate a liar and attacked them as such. Said candidate received almost no votes.

    It would be a great world if we could listen to accusations in job interviews and make decisions based on them, but that is not our world, our world is one full of liars. I was interviewed by the deans in high school based on lies (about toilet papering houses I never did), others have faced the same. If you can find a motivation for the claim and have no disinterested 3rd party affirming it, you are complicit in the defamation if you believe the claim. And that extends to interviews.

  • ||

    What should a Senator, who had previously thought he was a good fit and believed him about the allegations, but was totally creeped out by the way he responded to stress?

  • David Welker||

    I agree with Somin here.

    There were no accusations of sexual assault against Gorsuch, or Roberts, or Alito. I do not believe that the fear that such allegations will just be manufactured out of thin air every time we have a future Supreme Court nominee, whether conservative or liberal, is likely. If a charge is manufactured out of thin air, chances are, we will be able to figure that out. And it would be a rare case indeed where someone is able to testify publicly about fake allegations in a credible way.

    I also think that both sides have made mistakes with respect to how to treat allegations of sexual assault, and for partisan reasons. In the past, Bill Clinton defenders were too quick to discount his many accusers. Now, the same is happening with Brett Kavanaugh defenders, only the political party is switched.

    I, for one, am glad that Al Franken is out of the Senate. I think if both sides agree that credible accusations ought to be disqualifying for important jobs, then we will all be better off. When it comes to sexual assault, there is no reason to think that members of either party are more or less likely to be culpable.

  • David Welker||

    (cont.)

    In the case of Brett Kavanaugh, there is still uncertainty about whether he did anything or not, although he does have multiple accusers. Memories are far from perfect, although, in some things, they can be fairly reliable. But, let's assume that both Ford and Kavanaugh testified in a way that they thought was truthful. My feeling is that if Kavanaugh was drunk, it is perfectly possible that he did not remember doing what he is accused of doing. Depending on the person, their behavior may change a little or a lot when they are drunk. And depending on how much they have been drinking, their memory may be stronger or weaker. I have not actually been following this case as much as many people, so I don't know if there has been any testimony indicating whether Ford was drinking at the party either. But if she is testifying truthfully, she does have a memory. If Kavanaugh is testifying truthfully, it is possible he doesn't have a memory.

    I want to make on thing clear. I think that partisanship should have nothing to do with our assessment of this case. If Kavanaugh did nothing wrong, I think it would be unfortunate for his nomination to be derailed by these accusations. But when assessing whether he did something wrong or not, I think the framework that Ilya Somin is advocating makes sense, and for the reasons he specifies.

  • swood1000||

    I do not believe that the fear that such allegations will just be manufactured out of thin air every time we have a future Supreme Court nominee, whether conservative or liberal, is likely.

    How hard would it be to level a charge of racism, sexism or dishonesty? He used the N-word or he showed obvious racism. In high school or college he referred to women in a sexist way or touched one improperly. He stole something in high school. You think that those desperate to avoid what they see as the incalculable evil of overruling Roe v Wade, would stop short of such tactics?

    My guess is that such allegations have been made against nominees in the past, but that they have been handled confidentially by the Judiciary Committee, in closed session. In the past, even if sexual allegations were made publicly, they were resolved confidentially, with the committee just announcing either that the allegations were determined to be without merit or that the nominee had withdrawn. The reason the Democrats did not follow the normal confidential procedures was that they anticipated that these allegations would be ignored as uncorroborated, and the days of accepting a nominee with substantive differences are over. A simple look at how the same Democrats handled the accusations of rape against Bill Clinton suggests that the real issue for them was not uncorroborated sexual allegations.

  • Sarcastr0||

    Do you think your parade of new goal posts would play nearly as well as sexual assault?

    Maybe some will bring it up, but for better or worse generalized narratives of Republicans being sexist/racist don't have the universal currency this does.

  • swood1000||

    generalized narratives of Republicans being sexist/racist don't have the universal currency this does.

    I'm not talking about generalized narratives. I'm talking about specific but fictitious allegations.

  • VinniUSMC||

    X never happened, before it happened, therefore it won't happen.

    Pretty sure that's a logical fallacy.

  • donojack||

    Were you not on the planet in 1991?

  • ragebot||

    Given that Ford's GoFundMe pages are currently North of $US1,000,000 and shows no sign of slowing I would posit that there is plenty of reason to suspect false accusations.

    Lets also keep in mind that a Kavanaugh confirmation would result in a switch in the balance of the court, something not true of previous nominations. As has been pointed out endlessly the Dems are not just opposed to Kavanaugh; they are opposed to any nomination that would change the balance of the court. Many credible Dems has said their goal is to not just prevent Kavanaugh's confirmation but to prevent any confirmation of a Trump nomination till 2020 when they hope to retake the Whitehouse.

    Since Ilya seems to claim an ~ 25% chance is enough to reject a nominee I will claim an ~25% chance that the accuser is wrong is enough to reject an accusation. I will also say if an accuser benefits financially from accusing that in and of itself is enough to reject an accusation.

  • swood1000||

    I will claim an ~25% chance that the accuser is wrong is enough to reject an accusation.

    So if there is a 75% chance that an accusation has merit you would still reject it?

    I will also say if an accuser benefits financially from accusing that in and of itself is enough to reject an accusation.

    What is the rationale for this in the case of corroborated allegations?

  • Brett Bellmore||

    "What is the rationale for this in the case of corroborated allegations?"

    Perhaps when one shows up we can tackle that question. This one is anti-corroborated.

  • swood1000||

    Perhaps when one shows up we can tackle that question. This one is anti-corroborated.

    I didn't mean to imply otherwise. I was just replying to the fact that the OP expounded this as a general proposition.

  • AmosArch||

    I love all the posts here saying because they didn't do it (that we know of) for Gorsuch they couldn't have possibly falsely accused Kavanaugh. I guess all the allegations of Hillary bumping off people are completely true because we could have accused every single other Democratic politician that ever existed of doing the same but we didn't . I guess Pizzagate is 100% true and highly placed prog politicians really are taking little kids into a pizza parlor and raping them because in all these decades we could have had the exact same allegation but never did. Everybody thinks up and has an opportunity and will immediately put all ideas that could possibly be in existence into action immediately every single chance they get. The Brilliant Mind of Professor Ilya Somin has opened up new horizons of insight for me once again!

  • Sarcastr0||

    The posts aren't saying anything about Kav specifically, they are saying that the concern from conservatives that all future nominees will be charged like this are baseless.

  • ||

    Not if the evil left sees it works.

  • VinniUSMC||

    It's different when Sarcast0 does it.

  • Sarcastr0||

    Ooh, time for me to give my hot take!

    As I've seen it defined, credibility is a threshold issue, and that it was passed by the sworn testimony and the 2012 corroboration. That means only that an investigation is called for. A hearing is required only inasmuch as it's needed for the perception of legitimacy in the absence of an investigation; it was a gambit by the GOP to forestall an investigation and did not pan out.
    However, credibility alone, and witness testimony alone, don't seem to reach a threshold of killing the nomination. Thus, everything hinges on the investigation. And not just of Ford and the other womens' allegations, but the truthfulness of Kav's credibility is material as as well. I'm currently persuaded that the contours of the investigation set forth by the Executive hamstring the current effort too much to address the current issues in a credible manner.

    Playing games with the timing is a collateral issue. Sandbagging like that via a leak is pretty common practice on the Hill, especially as an election looms. Cries that it's unfair ignore are not wrong, but the cure for the objection isn't to ignore credible charges, it's to sanction Feinstein. Which no one will do because each Senator wants to still be able to play the same game.

  • Sarcastr0||

    In the end, regardless of what I think, this is a body blow to the credibility of the most legitimate remaining pillars in our Republic (partisan yellers aside). You can blame whichever side you prefer, but I just don't get the feeling this will go away with some grumbling like Thomas did. We shall see come Kav's first controversial opinion.

  • swood1000||

    this is a body blow to the credibility of the most legitimate remaining pillars in our Republic

    Scalia predicted this hyper-partisan approach toward Supreme Court nominations in his Planned Parenthood v Casey dissent:

    "if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school--maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward."
  • Sarcastr0||

    Eh, so did Associate Justice Charles Evans Whittaker in Baker v. Carr.

    People have been doomsaying about the Court for ages. Doesn't mean they are prophets, and doesn't mean it can be avoided by ignoring abortion.

  • swood1000||

    Doesn't mean they are prophets, and doesn't mean it can be avoided by ignoring abortion.

    Does anybody think that if the Supreme Court had stayed away from issues such as abortion, and left them to the political process (as Ginsburg says they should have done), that we would have the kind of hostility that we see today concerning federal judicial nominations? Of course not, because the Supreme Court would not be the battleground for those issues. Certainly there would still be adversarial issues but when you remove the most contentious issues from the mix it can only calm things down. It doesn't take a prophet to see that.

  • swood1000||

    Eh, so did Associate Justice Charles Evans Whittaker in Baker v. Carr.

    Whittaker recused himself in Baker v. Carr. Don't see how this relates to the hyper-partisan approach that has developed toward Supreme Court nominations.

  • Sarcastr0||

    His concern was the same narrative as that you posted above, only with a different subject - that taking a position in the case would make the Court partisan and thus less and less legitimate.

    There's an incredible podcast on Whittaker and that case. IMO, Quite nonpartisan.

  • swood1000||

    There's an incredible podcast on Whittaker and that case. IMO,

    Yes, I agree. I've listened to all the More Perfect podcasts.

    The thing is, though, that issues of federalism just don't carry the punch of abortion in terms of the importance that the public ascribes to it. People shrugged off Baker v Carr while Roe v Wade ignited civil war.

  • Sarcastr0||

    I find them quite uneven. I liked this one a lot. Other highlights were Batson and gun control. That's it, though. The rest were pretty anodyne to my jaded ears.

    Just because abortion resonates with you as something the Court should stay out of doesn't make it more salient to politicizing the court than voting rights.

    The podcast posits a throughline between Carr and Roe, IIRC.

    The threat to the Court and associated general politicization of the Court is a symptom, not an issue-specific cause. I think I blame the shift in media, making us more of what we are.

  • swood1000||

    Just because abortion resonates with you as something the Court should stay out of doesn't make it more salient to politicizing the court than voting rights.

    It was an attempt to force a judicial resolution to a political question, like Dred Scott tried to do. It changed the locus of the controversy from the ballet box to the Supreme Court confirmation battle. It's not that it resonates with me more. It's that it resonates with everyone more. People are up in arms over this question, unlike the question of federalism and voting apportionment within states. To judge how politicized various issues are one need only count the protesters outside the Supreme Court and ask why they are there.

    I find them quite uneven.

    I agree. I listened to one recently dealing with Wickard v Filburn. At the end of the story Jad Abumrad said that he found it somewhat immoral that "economic considerations" got in the way of federal legislation that he saw as desirable, as if he just couldn't fathom any alternative to total federal control or didn't see why a system set up in the constitution should be given effect by the courts. One wonders whether he would support the right of Kentucky to pass legislation binding on citizens of Ohio as long as the legislation was "good."

  • Sarcastr0||

    The Court has been answering political questions for years. Your objection is idiosyncratic to your ideological bent. Heck, you could just as easily complain about Wickard, no? That's a sign it's more you than some principled throughline.
    I could yell about Bush v. Gore in the same vein. But I won't. Because I have the humility to realize that what feels political to me isn't some universal truth.

    I also don't like your test at all. Are people angry at the Court? Then it's too political. Naw. People were up in arms about voting. And Brown v. Board. That kind of anti-populism is the Court's job! That's why it's legitimacy is so important. The less it has, the fewer silver bullets it has to make unpopular calls.
    ----------------------------------------
    As you might imagine from my choice of Internet forum, I have no problem with my media being what I consider wrong. It's all in the story and presentation, for me. But I cannot disagree - even on radiolab classic, Jad's post-hoc 'I'm an outsider just thinking' rationalicating is pretty tiresome.

  • swood1000||

    I also don't like your test at all. Are people angry at the Court? Then it's too political.

    My test does not depend on the number of angry people. It is, however, that if there are two Supreme Court decisions in which the court improperly allocated authority to itself, the one that generates more public backlash has the greater chance of causing harm to our institutions since it will provoke a greater lack of respect for the court's actions and authority.

    What part of the Scalia quote above do you disagree with, if any?

  • Sarcastr0||

    I disagree with his argument that you either have originalism or pure Constitutional populism. That's some fine Scalia middle excluding.

    And with his causal connection to nomination battles. Correlation is not causation.

    I could as easily point to the post-Nixon rise of the paranoid style of American politics, wherein your opposition is your enemy. Is that the cause of contentious nominations?

    Or another possibility - the crumbling of nomination-based norms sure seems to be generally tracking a more general crumbling of political norms.

  • swood1000||

    I disagree with his argument that you either have originalism or pure Constitutional populism.

    This selection doesn't make that argument. Please quote some text actually found in the selection and explain why you disagree with it.

  • Sarcastr0||

    If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours

    i.e. originalism or populism, no middle ground.

  • swood1000||

    i.e. originalism or populism, no middle ground.

    Are you saying that the term "liberty," which the court, for example, has said refers to both the liberty to have an abortion and the liberty to engage in same sex marriage, is unbounded, meaning that it can refer to an unlimited number or category of activities as determined by the Court? Or are you saying that there are limits on the types of activities that "liberty" can refer to?

    For example, under originalism the term "liberty" is limited and means "the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint." What's your view?

  • Sarcastr0||

    undefined and unbounded is where Scalia is strawmaning a decision he doesn't like.

    It's only unbounded if you insist all jurisprudence be exactly directive, which is silly. There are lots of philosophies that limit behavior without being exactly directive; legal analysis is no difference in that respect.

    But his general scenario that the Supreme Court derives it's public perception of legitimacy from originalist values flies in the face of the Court's history, since originalism is very much a late addition to the Court's analysis toolkit.

  • swood1000||

    undefined and unbounded is where Scalia is strawmaning a decision he doesn't like.

    It's only unbounded if you insist all jurisprudence be exactly directive, which is silly.

    How is strawmaning happening here? What do you mean by "all jurisprudence be exactly directive"? Can you answer my question:

    Are you saying that the term "liberty," which the court, for example, has said refers to both the liberty to have an abortion and the liberty to engage in same sex marriage, is unbounded, meaning that it can refer to an unlimited number or category of activities as determined by the Court? Or are you saying that there are limits on the types of activities that "liberty" can refer to?

  • Sarcastr0||

    Unlimited but bounded rights. Like literally every liberal philosophy from Kant to Hobbes to Rousseau. Like in Breyer's Active Liberty. What all these have in common is that they set up a principle-based protocol to cabin where you look for rights, but none of them just print an exhaustive list. All of them would have laughed at the idea.

    Scalia's appeal to the dead hand as the only legitimate method to use because it's never changed is assuming a requirement not in evidence. And his functionalist argument is that people only like the Court because it's bounded and limited, which flies in the face of many, many opinions that were surprising.

  • swood1000||

    What all these have in common is that they set up a principle-based protocol to cabin where you look for rights

    Scalia said that no principles have been announced beyond the Supreme Court saying, for example, that they value abortion more than polygamy. Have you been able to identify such a principle? If it just comes down to the value judgements of the people on the Supreme Court then why isn't it reasonable for people to be able to ask what those value judgements are before confirming Supreme Court nominees? How is it different from evaluating a politician at election time in terms of what actions he is likely to take and whether you approve of them?

  • Sarcastr0||

    I do believe an investigation of a cold case like this can be useful. Checking witnesses, checking timelines, etc. Plus, of course, there is the material issue of Kav's seriously questionable testimony. I find it frustrating how many here just ignore the many non-opinion pieces on this written by journalists because to the right these days journalists have no credibility. The complete lack of engagement with the research being done via appeals to incredulity is convenient, and cannot be reasoned with. I will admit Hihn's spamming doesn't help matters.

    I'm still not sure what to think about the whole 'Clinton plot' thing. That's some knee-jerk partisan paranoia, and I don't much like that it was part of his prepared remarks, but Thomas still has a chip on his shoulder and has proven to be as professional as you would like in his opinions.

    One thing I am amused by, regardless of the stakes, are the attacks on Ford's credibility. This was a long-term plot since 2012! She's getting paid by the Internet! Her voice sounds crazy! I'll bet she was just remembering a dream! She's from SanFran, which makes her biased! Maybe she's on drugs! It's pretty good comedy.
    And that's not counting the commenters recommending killing all the liberals, threats to duel RAK, and AltRighWingEmbarasment going hard against women voting, lol.

    I'm a straight white Christian male, I'll be fine, I think. So I'll have some fun with stuff I cannot control, and just keep on riding this ride.

  • ||

    Given that women were not allowed to vote for the vast majority of human history, the onus is on you to state why it's a good idea, not on me to state why it isn't. That also goes for giving "marriage" licenses to men whose marital consummation is exclusively buttsex.

  • Sarcastr0||

    Continuing to deliver.

    :-D

  • Rev. Arthur L. Kirkland||

    Given that women were not allowed to vote for the vast majority of human history, the onus is on you to state why it's a good idea, not on me to state why it isn't. That also goes for giving "marriage" licenses to men whose marital consummation is exclusively buttsex.

    Conspirators: 'We'd like to operate a blog to promote movement conservatism, with an academic veneer. Those damned liberals control academia, and the press, and it's about time we stood up for ourselves.'

    Conservative establishment: 'Are you sure that's a good idea? Will you permit comments?'

    Conspirators: 'Of course, comments. We believe that comments will attract and engage readers, and make our blog even more successful in making movement conservatism popular. This will give rank-and-file conservatives a voice.'

    Conservative establishment: 'And you think that's a good idea?'

    Conspirators: 'Certainly. We'll be giving conservatives, who so often do not have their values and positions represented in mainstream media, a chance to include their thoughts in the general marketplace of ideas. Why are you shaking your head? What could go wrong?'

    Conservative establishment: 'Have you met our base?'

  • Ellis Wyatt||

    I see (again) our PHONY PATRIOT has absolute contempt for our Constitution, AND our founding principle of equal, unalienable and/or God- given rights.

    The Authoritarian Right.

  • swood1000||

    One thing I am amused by, regardless of the stakes, are the attacks on Ford's credibility. This was a long-term plot since 2012! She's getting paid by the Internet! Her voice sounds crazy! I'll bet she was just remembering a dream! She's from SanFran, which makes her biased! Maybe she's on drugs! It's pretty good comedy.

    One thing that I am amused by is that you list only the screwball attacks on her credibility (as if these constitute all of them or are representative of the whole) and do not include any of the legitimate ones, some of which are listed here and here.

  • Sarcastr0||

    Your lists are not amusing, nor are they particularly substantive to the threshold question of credibility.

    Certainly, they are great arguments for why the statement alone is not enough to kill the nomination, but they don't bear much on whether it's worthwhile to have an investigation.

  • Sarcastr0||

    Though you do have some pretty funny bits, even ignoring your sudden insights on with how traumatic people should act and remember:

    she has a Ph.D. but says that she didn't know how to contact the Senate Judiciary Committee
    she says she wanted confidentiality but contacted the Washington Post with her allegations
    Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name
    Dr. Ford's description of the psychological impact of the event raises questions

    LOL.

  • swood1000||

    • Your lists are not amusing, nor are they particularly substantive to the threshold question of credibility.
    • Certainly, they are great arguments for why the statement alone is not enough to kill the nomination

    These are in direct contradiction. The question of why Ford's statement alone is not enough is a question of credibility.

  • Sarcastr0||

    I know there is some terminology issues here, so I apologize. I wrote above about how I define it.
    As I define it (and I'm not alone, but neither am I uncontradicted) Credibility is a threshold question as to whether there should be an investigation. A credible allegation alone is necessary but not sufficient to kill a nomination, but is sufficient to open the door to checking into the allegations.

    You are conflating that question with the final question of whether Kav should be confirmed. That question is very much open, and I agree with you that Ford's testimony along is insufficient to close it.
    And the question will remain open even if Kav is confirmed, unless the investigation becomes less of a sham than it currently appears to be.

  • swood1000||

    Credibility is a threshold question as to whether there should be an investigation. ...You are conflating that question with the final question of whether Kav should be confirmed.

    They are the same question. There should be an investigation only if the allegations are sufficiently credible. Kavanaugh should be confirmed only if the allegations are insufficiently credible.

  • Sarcastr0||

    Unless you think he's done something, investigating Kav is not the same as him not being confirmed.

    Indeed, your third sentence's 'only if' logically transfers to necessary but not sufficient, as I noted above.

  • swood1000||

    If there is, say, a 25 or 30 percent chance that the nominee committed a crime as serious as sexual assault, that may be too much

    What is the percentage we assign to allegations when:

    • the complainant cannot remember when or where the event took place (or even the year)
    • four witnesses (the number keeps changing) she names (including her "lifelong friend") all deny any knowledge of it
    • at one point she says she was in her "late teens" but then later that it happened when she was 15
    • she cannot remember how she got home
    • her mother, father and two siblings are all conspicuously absent from a letter of support released by a dozen relatives, mostly on her husband's side of the family
    • she has demonstrated political opposition to the alleged perpetrator
    • her memories are 35 years old, a period known for rendering memories suspect
    • she denies knowing that she was offered the chance to testify privately, resulting in greater delay (such testimony being rejected and even boycotted by the Democrats, who want greater delay)
    • she insists on greater delay by claiming a fear of flying but has a history of world travel by air
    • she has a Ph.D. but says that she didn't know how to contact the Senate Judiciary Committee
    • she says she wanted confidentiality but contacted the Washington Post with her allegations
    • the defendant has lived an exemplary life and supplies the names of 65 women as character witnesses at the relevant time

  • swood1000||

    What is the effect when Rachel Mitchell, the sex-crimes prosecutor, said in her report that:

    "In the legal context, here is my bottom line: A "he said, she said" case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them."

    Mitchell cited details supporting these major issues:

    • Dr. Ford has not offered a consistent account of when the alleged assault happened
    • Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name
    • When speaking with her husband, Dr. Ford changed her description of the incident to become less specific
    • Dr. Ford has no memory of key details of the night in question
    • Dr. Ford's account of the alleged assault has not been corroborated by anyone she identified as having attended—including her lifelong friend
    • Dr. Ford has not offered a consistent account of the alleged assault
    • Dr. Ford has struggled to recall important recent events relating to her allegations, and her testimony regarding recent events raises further questions about her memory
    • Dr. Ford's description of the psychological impact of the event raises questions
    • The activities of congressional Democrats and Dr. Ford's attorneys likely affected Dr. Ford's account

  • swood1000||

    Mitchell stated that the percentage she would assign to the likelihood that Ford's allegations are reliable would be less than 50%, but she didn't say how much less. How much weight is given to her evaluation?

  • Sarcastr0||

    Mitchell's statement is more argument than analysis (c.f. popehat's analysis) but I agree that it isn't wrong. Thing is, not prosecuting doesn't mean not investigating.

    Plus, of course, there's looking into Kav's testimony.

  • swood1000||

    Thing is, not prosecuting doesn't mean not investigating.

    My only point was that unless something else is turned up, Ford's allegations are insufficient to deny Kavanaugh his confirmation.

  • Sarcastr0||

    I'm not a prosecutor, but I do think that sounds right. Otherwise you do create a perverse incentive for partisans on all sides.

    Though I do think the way the investigation is being set up is not addressing the current legitimacy problems at all. It hardly functions as a fig leaf.

  • Leo Marvin||

    I agree that without more substantiation, Ford's allegations by themselves are inadequate to disqualify BK. But they're not by themselves. There's much more, most of which I won't relitigate here, since 200 comments have pretty well beaten it to death. I'll just say the backbreaker for me was BK's blatant partisanship. Nobody's under the illusion that SCOTUS justices are above partisan leanings, but the requirement of maintaining the appearance of impartiality is still a thing. BK's conspiracy mongering diatribe destroyed any hope that a Left/Democratic affiliated litigant appearing before him could have a reasonable expectation of impartial justice.

  • TwelveInchPianist||

    Hey, whatever works, right? Delaying the process by staged protests and demands for hundreds of thousands of documents didn't work. Sandbagging him with a bogus rape allegation didn't work, so now we'll just say we can't confirm him because he got mad at the party that sandbagged him with the bogus rape allegation.

  • Sarcastr0||

    Once you assume anyone with concerns is just operating in bad faith, you can do whatever you want and come out smelling like a rose!

  • Leo Marvin||

    How can you possibly know Ford's allegation is bogus?

    I don't know if the rest of your reply,is directed at me. If so, it's unresponsive.

    And I said nothing about BK getting mad. In fact I sympathize with his anger. Even his unprovoked belligerence and rudeness are another thing, which like the Ford allegations, I wouldn't make a federal case over by themselves in light of his apparently sincere belief the world is out to get him. But neither do they speak well for his judicial temperament.

  • swood1000||

    I'll just say the backbreaker for me was BK's blatant partisanship.

    That may have been the backbreaker for you (and for senate Democrats) but I feel confident in saying that it was/will not be so for the handful of senators whose votes will control the confirmation. People do not expect a composed and moderate response from a person who is wrongfully accused of attempted rape and whose reputation has been destroyed unjustly. Those who say otherwise will only persuade the already-persuaded.

    BK's conspiracy mongering diatribe destroyed any hope that a Left/Democratic affiliated litigant appearing before him could have a reasonable expectation of impartial justice.

    This was one of the risks of embarking on this type of project. As Machiavelli put it:

    "Men ought either to be indulged or utterly destroyed, for if you merely offend them they take vengeance, but if you injure them greatly they are unable to retaliate, so that the injury done to a man ought to be such that vengeance cannot be feared."

    Once they begin such an enterprise they have to finish it.

  • Sarcastr0||

    Dr. Ford's description of the psychological impact of the event raises questions

    As I said, I'm on the fence about whether this is disqualifying, but this was prepared remarks and wasn't just indignant or even furious, it went to a specific paranoid conspiracy. Bitter paranoia is not something I like to see in my SCOTUS candidates.

    I'm just not sure if it's different in kind from the stuff we've seen and heard from Thomas/Ginsberg.

    Citing Machiavelli for the proposition that liberals deserve a bitter and biased Justice is not a good argument on a number of levels.

  • swood1000||

    Bitter paranoia is not something I like to see in my SCOTUS candidates.

    Paranoia is a delusion and indicates a corrupted thinking process. It is not paranoia to think that Senate Democrats are intent on doing everything in their power to keep Kavanaugh from being confirmed.

    Citing Machiavelli for the proposition that liberals deserve a bitter and biased Justice is not a good argument on a number of levels.

    I'm not citing it for the proposition that liberals deserve a bitter and biased justice. I'm citing it as a statement of the well-known observation of human nature that if you injure someone unjustly you should not be surprised to find that your victim resents what you did, and that such factors should be taken into considerations before committing the injury. Certainly judges should try to avoid such motivations but we all know that they are human and are subject to biases just like everyone else.

  • Sarcastr0||

    Paranoid is citing the Clintons for anything to do with this.

    As I said above, an innocent Kav can be righteously angry at the accusation. But first, I would generally hope for more control in a Justice. That would evince the professionalism I expect to see, and have seen from even the most partisan of Justices (absent Alito that one time in the SOTU).

    But even absent that, taking your anger and channeling it towards intimating some Clintonian plot is not a healthy way to react to that emotion.

  • donojack||

    I watched his statement and my takeaway about the Clintons was that this was a Clinton type of tactic, to destroy your enemies by any means necessary. Every bimbo eruption was accompanied by orchestrated attacks on the accusers: Monica is a stalker, Paula Jones is trailer trash, Kathleen Willey is a slut, etc.

    He probably should have left it out but it wasn't a paranoid conspiracy theory either.

    Having been accused of a crime I didn't commit I understand the outrage and the sense of there being nothing left to lose. If they don't get you for the crime the process still does you.

  • Sarcastr0||

    'revenge on behalf of the Clintons' is not about tactics.

  • Bob from Ohio||

    Neither does "on behalf" mean the Clintons did anything or told anyone to do anything.

    I bought some cat litter on behalf of my cat. She did not actually ask me to do so.

  • Sarcastr0||

    Still crazy telepathic paranoia about your political opposition. And not off the cuff, as the Klobuchar bit was, this was in prepared remarks.

    But while I don't care for it, I've come around to it not being disqualifying, because I've seen professionalism and comity from Justices both left and right who clearly hold their political opposites in contempt to say the least.

  • swood1000||

    Paranoid is citing the Clintons for anything to do with this.

    Is it paranoid to ask for an explanation of why the Democrats consider Dr. Ford's allegations more credible than those of Juanita Broaddrick, who charged actual rather than attempted rape but whose claims were uniformly dismissed, and Bill Clinton deemed to be not disqualified from office because of them?

  • Sarcastr0||

    No, that's just whattaboutism.

  • swood1000||

    No, that's just whattaboutism.

    Whataboutism is a variant of the tu quoque logical fallacy that attempts to discredit an opponent's position by charging him with hypocrisy without directly refuting or disproving his argument. Tu quoque is considered to be a logical fallacy, because whether or not the original accuser is likewise guilty of an offense has no bearing on the truth value of the original accusation.

    Suppose you said "Trump's treatment of women is abominable" and I responded "What about Bill Clinton"? This is whataboutism if my response is intended to deny or discredit your charge about Trump. Demonstrating that you are being inconsistent does not refute your original statement.

    If you said that Dr. Ford's allegations are credible and I responded that Juanita Broaddrick had similar allegations but you called them not credible this would be whataboutism if I were concluding "therefore, Dr. Ford's allegations are not credible."

    However, I am not using Juanita Broaddrick to prove that Dr. Ford's allegations are not credible. I am using it to show that the fact that both women claimed sexual abuse and you believe one of them but not the other demonstrates that some factor other than the sexual abuse must be controlling the different conclusions you are reaching. I propose that the factor is the political orientation of the person accused. What do you propose?

  • Sarcastr0||

    So you are using this to say something about me, not about Ford. Still not on the subject, and not a conversational eddy I have any interest in going down. But I was too young to care about politics in the early 1990s.

  • swood1000||

    So you are using this to say something about me, not about Ford.

    I have no idea what you are talking about. I am simply asking you to respond to my suggestion that a difference in outcome not accounted for by a difference in whether both parties were sexually abused must be accounted for by something else.

  • Rev. Arthur L. Kirkland||

    Once they begin such an enterprise they have to finish it.

    I am not sure that installation of tenth and eleventh justices by Democrats would 'finish it,' but I sense that it would be a good start.

  • swood1000||

    I am not sure that installation of tenth and eleventh justices by Democrats would 'finish it,' but I sense that it would be a good start.

    The only way for the Democrats to "finish it" would be for them to keep Kavanaugh from being confirmed. Or they could "really" finish it by removing him from his current position. Adding a tenth and eleventh justice still leaves him in a position to exact revenge, but then also starts a process that denigrates the Supreme Court and causes everyone to see them as politicians, and to lose the mystique they have always had.

    This would start the conversation as to whether we want such a body of super-politicians and no doubt lead to some constitutional changes.

  • Sarcastr0||

    We don't live in the brutal and feudal world of the Prince. But there is no better way to assure that in our future than to follow it's precepts as maxims of how to do things.

  • mad_kalak||

    Do you ever grow weary of the same shtick?

  • Res ipsa loquitur||

    It is tedious for sure and not very creative or smart.

  • Bob from Ohio||

    "BK's blatant partisanship."

    Yeah, that is unprecedented.

    "He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

    "I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our president," she had said in the Times interview published Monday."

  • Leo Marvin||

    RBG's off-bench commentary is the most openly partisan on the Court. I denounce it. Unless you approve of RBG's partisanship, defending BK's makes you a hypocrite. Was that your point?

    (Shorter answer: More whataboutism.)

  • Bob from Ohio||

    Let's look into hers.

    For instance, she waived privilege on her therapist notes when she showed them to WaPo. Let's get them.

  • Sarcastr0||

    I'm not sure if that's how therapist privilege works (would some limited actual publication be required?), but I don't really know.

    I think the demonizing of Ford is not a good rout to go down, but if that's where you want to go in return for the FBI investigating Kav's more and more contradicted explanations, that's a hill I'll let you die on.

  • swood1000||

    I think the demonizing of Ford is not a good rout to go down

    Demonizing her is not necessary. All that's necessary is to establish sufficient doubt to give cover to the wavering senators.

  • Bob from Ohio||

    "more and more contradicted explanations"

    You are imagining things.

  • Sarcastr0||

    link

    This is just the latest of many along this line. And that isn't counting the 'my slang was somehow different than it was everywhere else!'

  • Bob from Ohio||

    Nothing in that CNN link days Kav was a liar. Its just their subjective judgments.

    It is literally impossible for even a doctor to tell if 30+ years ago someone blacked out from drinking. The Yale classmates [quite a viper nest Yale is] just say he drank a lot, which he never denied.

    He said he drank too much "sometimes". Likely true.

  • Sarcastr0||

    Kav has made specific claims of ways he did not get drunk. Quite a few of his classmates have said that those claims so baldfaced false they decided to come forward.

  • Bob from Ohio||

    "specific claims of ways he did not get drunk"

    Quote some. Not HuffPost or Slate paraphrases but quotes.

  • Sarcastr0||

    Rachel Mitchell: "Have you ever passed out from drinking?"

    Kavanaugh: "I've gone to sleep, but I've never blacked out. That's the allegation? That's wrong."

  • Bob from Ohio||

    ""I've gone to sleep, but I've never blacked out. "

    How is that a denial of drinking too much?

  • swood1000||

    This is just the latest of many along this line. And that isn't counting the 'my slang was somehow different than it was everywhere else!'

    It strikes me that information that Kavanaugh occasionally drank to excess in high school and college will not be taken by current Senate fence-sitters to contradict the information that is already out there. Nor are they likely to be suddenly convinced that the true meaning of slang terms differs from Kavanaugh's meaning to the extent that perjury is implicated, though no doubt those who are not Republican and are not from red states will have much less difficulty reaching such a conclusion.

  • Sarcastr0||

    As I'm sure you know, it's not the substance of the claim, it's his direct lying about it.

    Not being cagey, direct lies. Under oath. Whether that's due to some indignant righteousness or plain entitlement it's not a good look for a justice.

    I don't know the exact standards for a perjury case, but this isn't a criminal trial.

  • Bob from Ohio||

    "direct lies. Under oath"

    You keep saying that but never cite actual quotes.

  • Sarcastr0||

    See above.

  • swood1000||

    As I'm sure you know, it's not the substance of the claim, it's his direct lying about it.

    And what is your strongest example of a direct lie under oath?

  • Sarcastr0||

    The never blacking out and his risible explanations for his yearbook.

  • mad_kalak||

    Why, with sliding standards like that, no reasonable prosecutor would bring charges against him then. Sound familiar?

  • Sarcastr0||

    There's some middle ground between false accusation and beyond a reasonable doubt, wherein lies a candidate who should not be confirmed for lying under oath.

  • mad_kalak||

    Still waiting for direct quotes that show him lying under oath, or even ones that are risible, such as "I did not have sexual relations" when the definition of sex only includes PiV.

  • Sarcastr0||

    Sarcastr0|10.1.18 @ 1:10PM.

    Also, of course, 'boofing' 'Devil's Triangle' 'Renate alumn.'

  • mad_kalak||

    Sarcastr0|10.1.18 @ 1:10PM.

    Also, of course, 'boofing' 'Devil's Triangle' 'Renate alumn.'

    ....keep grasping at those straws.

  • Sarcastr0||

    Cute.

    'I demand citations!'

    *citations provided*

    'Ahh, you are straw-grasping anyhow.'

  • mad_kalak||

    That's grasping at straws, even if you put pen to paper, so what other Q Anon level citations ya got?

  • Sarcastr0||

    You are very bad at moving the goal posts from your 2:26PM post.

  • swood1000||

    And what is your strongest example of a direct lie under oath?

    The never blacking out and his risible explanations for his yearbook.

    I indulged beer to excess in high school. I got sick on more than one occasion. I never blacked out (meaning that I couldn't remember what I had done). What about Kavanaugh's situation makes it obvious to you that he must have blacked out? We need to remember that being first in his class academically and being captain of the basketball team provide some limits to the amount of beer he could have been imbibing.

    As far as the yearbook, what term did he define that is only defined some other way?

  • Sarcastr0||

    That makes it clear is multiples of his Yale colleagues saying they drank with him and he got black out drunk out all the time.

  • Bob from Ohio||

    "That makes it clear is multiples of his Yale colleagues saying they drank with him and he got black out drunk out all the time."

    That is a lie. They never used "black out".

    They could not know in any event.

  • Sarcastr0||

    They could certainly hear from him at the time how drunk he was.

  • swood1000||

    That makes it clear is multiples of his Yale colleagues saying they drank with him and he got black out drunk out all the time.

    Please provide a reference to such a statement. It is not sufficient if one of his colleagues says that he drank so much that he "must have" blacked out.

  • Sarcastr0||

    Chad Ludington: "I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth,"
    ...
    "Brett was a sloppy drunk, and I know because I drank with him. I watched him drink more than a lot of people. He'd end up slurring his words, stumbling," said Ms Swisher, a Democrat and chief of the gynecologic oncology division at the University of Washington School of Medicine.

    "There's no medical way I can say that he was blacked out. ... But it's not credible for him to say that he has had no memory lapses in the nights that he drank to excess."
    ...
    "although Brett was normally reserved, he was a notably heavy drinker, even by the standards of the time, and that he became belligerent and aggressive when he was very drunk." Though Roche says he does not remember the incident of alleged sexual assault, he does remember Kavanaugh "frequently drinking excessively and becoming incoherently drunk."
    ...

  • Sarcastr0||

    One college friend of Kavanaugh's, who asked not to be named, said she had frequently been drunk with him at parties. She hadn't seen him become belligerent, she said — instead, he could often be found slumped over, asleep, during and after parties.

    "He drank a lot — he wasn't falling asleep reading a book," the former friend told BuzzFeed News. "I would suggest that very few people in the '80s in the circles we were in did not sometimes go" to the point of being blacked out.
    ...
    Brookes said she remembers seeing Kavanaugh outside the Sterling Memorial Library, wearing a superhero cape and an old leather football helmet and swaying, working to keep his balance.

    He was ordered to hop on one foot, grab his crotch and approach her with a rhyme, Brookes said. He couldn't keep balanced, she said, but belted out the rhyme she's remembered to this day: "I'm a geek, I'm a geek, I'm a power tool. When I sing this song, I look like a fool."

    At some point, standing on 'only Brett can know how drunk Brett got' is not supportable.

  • swood1000||

    Chad Ludington: "I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth,"

    You have provided assertions the he "must have" blacked out (in college but not in high school). The question, though, is not put to the Democrats. It is put to pro-choice Republicans and red state Democrats. What is the chance they will conclude that this was a lie under oath?

  • swood1000||

    For instance, she waived privilege on her therapist notes when she showed them to WaPo. Let's get them.

    Rachel Mitchell faults Ford for refusing to provide any of her therapy notes to the Committee. Is there not even the smallest portion that could be revealed without disclosing extraneous personal details?

    One obvious explanation is that there are portions of the notes having only to do with the Kavanaugh matter but that conflict with the narrative she and her counsel have adopted. The only other explanation would seem to be that there is no portion of the notes that relates only to Kavanaugh and which does not disclose personal details. Does this seem likely? Am I overlooking another possibility?

  • Sarcastr0||

    One obvious explanation is that your every speculation somehow returns to her lying. Almost as though you're straining for that outcome.

    Sometimes therapists notes are just therapist notes; it's not good practice to make assumptions based on not releasing privileged info. You know, like Trump's tax returns.

  • swood1000||

    Sometimes therapists notes are just therapist notes; it's not good practice to make assumptions based on not releasing privileged info.

    So you're saying that it seems reasonable to you that there was no portion of the notes that had only to do with the Kavanaugh matter, with other portions being redacted? But how is that possible? We know about the sentence in the notes saying that there were four guys. Why can't that sentence be revealed?

  • Sarcastr0||

    I'm saying it's her right, and making presumptions based on that exercise is bad policy.

    There's also a fine chance that the exact quote from the notes would yield no more info than what we currently have. You are the one reading some evidence of a plot into literally nothing.

  • Bob from Ohio||

    "I'm saying it's her right, and making presumptions based on that exercise is bad policy."

    Its not her right if she waived the privilege.

    Disclosing privileged info to third parties waives privilege. That is black letter law.

  • Res ipsa loquitur||

    Based on his complete lack of legal understanding, Sarcastr0's judicial expertise seems to come only from the daily kos or the like.

  • Sarcastr0||

    I mean, I guess. I know A/C, I don't know therapists. But an adverse presumption is just wishful thinking.

  • swood1000||

    I'm saying it's her right

    Nobody is denying that it is her right. It is her right to refuse to disclose any number of things that would shed light on these events without compromising her privacy. The question is why she refuses to do that.

    making presumptions based on that exercise is bad policy.

    What are the bad policy outcomes from presuming that if a person refuses to disclose information that by definition does not compromise her privacy (but only discloses the facts related to her interaction with Kavanaugh), that she probably does so because there is something she doesn't wish to be discovered?

    There's also a fine chance that the exact quote from the notes would yield no more info than what we currently have.

    A refusal to disclose something that has already been disclosed just doesn't make any sense.

  • Sarcastr0||

    Refusing redundant disclosure does make sense. Why redact everything but what people have already seen?

    Your negative presumptions are just wishful thinking.

  • swood1000||

    Refusing redundant disclosure does make sense. Why redact everything but what people have already seen?

    I don't understand what this even means. It makes no sense to refuse to disclose information that has already been disclosed.

  • swood1000||

    Yet, opponents of the Gorsuch nomination were not able to deploy any significant accusations of criminal or unethical activity against him.

    What constitutes a significant accusation? The Democrats clearly held this until the last minute and then made it public because they believed that following the normal confidential procedures would result in the allegations being rejected as uncorroborated. If that had been the case would we call these significant allegations?

  • MatthewSlyfield||


    One of the points at issue in the debate over the sexual assault accusations against Supreme Court nominee Brett Kavanaugh is whether the standard of proof used should be similar to that applied the criminal justice system or that of a job interview.

    Outside of the political appointments process of nomination/confirmation how many job interviews allow:

    Calling third party outside witnesses?

    Are held in giant public press conferences where executives from the prospective employer give speeches before actually interviewing the candidate as part of the press conference?

    No, if they genuinely wanted to treat the process as a job interview, there would only be the committee and the nominee in a closed session.

    Before even getting to standards of proof, simply holding a public hearing and allowing third party witnesses to testify is itself treating the process more link a criminal trial than like a job interview.

  • apedad||

    Sigh...

    It's neither a job interview nor a criminal trial.

    It's actually kinda funny--the constitutional requirement that states the Senate must confirm a Supreme Court judge falls under the executive article (Art. II, Sect. 2).

    Funny thing this Constitution.

  • Bob from Ohio||

    "It's neither a job interview nor a criminal trial."

    Totally agree. Its a political event.

  • Sarcastr0||

    In the final analysis, this is true. But that doesn't mean might makes right, either as an issue of good statesmanship or as smart politics.
    The analogy to past procedures is a comforting one for both politicians and the public.

  • Bob from Ohio||

    "But that doesn't mean might makes right, either as an issue of good statesmanship or as smart politics."

    Might might not make right but it confirms nominees.

    A statesman is just a dead politician. Nobody knows how the politics will shake out.

  • Sarcastr0||

    Sure, but it's less risky to hide behind the vetted legitimacy of an already existing protocol.

    Both as specific political risk, and as future risk about the legitimacy of the Supreme Court.

  • MatthewSlyfield||

    Presumes that the existing protocol is both vetted and legitimate.

    There is nothing particularly legitimate about the protocol behind public confirmation hearings.

  • Sarcastr0||

    I presume only the perception of legitimacy. That's what matters for both questions.

  • Bob from Ohio||

    "legitimacy of the Supreme Court"

    Too funny. You have a functional liberal majority on abortion and other cultural matters for decades due to Kennedy. All is well.

    Now, faced with losing this functional liberal majority, you are worried about "legitimacy". Its so transparent.

  • Sarcastr0||

    You think I'm talking about the Court to me? That's not my concern; I'm talking to the public at large.

  • Sarcastr0||

    Kennedy is a functional liberal to monomaniacal culture warriors, but if you care about anything except abortion and gays (entitlements, separation of powers, torture, antitrust, criminal law, etc. etc.), he's quite conservative.

    But you guys keep pushing. I have no doubt Roberts will be the next functional liberal.

  • Bob from Ohio||

    "you care about anything except abortion and gays "

    Oh noes, he is conservative on check notes ..anti-trust. Which no one cares about.

  • Sarcastr0||

    Bob, you ask liberals if they care about monopolies. Kennedy is notably pro-business on the Court. That's pretty conservative, and arguably has more of an effect on our lives than abortion.

  • Bob from Ohio||

    "you ask liberals if they care about monopolies."

    No doubt.

    Its just not a priority. Unlike abortion.

  • Rev. Arthur L. Kirkland||

    'Anthony Kennedy was functionally a liberal.'

    Conservatives have had a majority of the Supreme Court, despite earning the generally lesser share of popular vote in national elections, for decades. Complaints that the thwarting of progress by Republican justices was not thorough enough for movement conservatives during that period seem weak.

  • ||

    Exclude from the "popular vote" totals those who immigrated after 1965 and who wouldn't have qualified under the National Origins Act and get back to me.

  • mad_kalak||

    While you may be correct, that's a bit like saying Pickett's charge would have worked if the Jeb Staurt's cavalry had properly harried the flanks. It's done, and done, regardless. All you can do is move forward with what you got.

  • ||

    Let me explain something. I will NEVER consider the tens of millions of third-worlders and their descendants who were foisted upon the American people in 1965, against their will, to be my countrymen. Ever ever.

  • mad_kalak||

    A citizen is a citizen is a citizen my friend, whether you want them to be or not. And walking by one on the street, how the hell are you going to be able to tell the difference?

  • ||

    I said "countryman," not citizen. Believe me, once the SHTF, you'll be able to tell who is an American and who is not. And most of the third-worlders will not be on your side.

  • donojack||

    I think that most reasonable unbiased people would agree that neither bare accusations nor trivialities should be disqualifying. That's all we have here so far but nevertheless half the people in the country think that Kavanaugh should be disqualified for an unsupported accusation or failing that underage drinking.

    We don't have to adopt some meaningless percentage standard of proof to realize that if there was any substantive corroboration to this accusation he would be gone by now. After all he's a Republican and they get the 10% bar at best whereas a Democrat deserves the 80% bar or better.

  • swood1000||

    but nevertheless half the people in the country think that Kavanaugh should be disqualified for an unsupported accusation or failing that underage drinking.

    Illustrating why the founders rejected direct democracy.

  • ||

    They also rejected giving women and non-land owners votes. They were wise

  • Rev. Arthur L. Kirkland||

    I was going to respond to donojack's contribution by observing that whining, persecution-perceiving right-wingers are among my favorite faux libertarians, but ActualRightWingPatriot reminded me that 'take the vote back from women,' gay-bashing, immigration-hating conservatives are even better.

  • donojack||

    I may be whining and persecution-perceiving but I am not a libertarian and have never claimed to be one.

  • Rev. Arthur L. Kirkland||

    I credit you for refraining from claiming to be something you are not. The Conspiracy tends to attract so many faux libertarians that it is worth recalling that some conservatives do not try to hide their conservatism with libertarian drag.

  • mad_kalak||

    Well, it's a good thing you're here to call 'em out, eh? Nobody better to judge someone's ideological self-identification than a motivated liberal.

  • swood1000||

    They also rejected giving women and non-land owners votes. They were wise

    I'm wondering what percentage of your motivation for posting is gratified by arousing shock in people. Isn't there enough disagreement here without going out of your way to foment more?

  • Sarcastr0||

    I agree.
    What do you call a Freeper who spends his time on more moderate boards like this one?

  • ||

  • Sarcastr0||

    Haha, this just in - returnofkings.com doesn't like women's rights!

  • ||

    Can you refute a single one of his propositions?

  • Sarcastr0||

    Like I gave them a click.

    I'm all for reading legitimate opposition, but I'm not going to countenance any arguments about cutting off fellow citizens from the franchise because you don't like the resultant policies.

    It's not a question of results or suitability, it's one of bedrock morality. This is not a realm for debate. Women are our fellow Americans. Participatory Democracy is a moral pillar in our society, and just because we've fallen short in the past doesn't give us license to do so in the future.

    You are the only regular on this website I would call a bad person, who is morally rotten, and who I will proudly return to ignoring.

  • ||

    If giving representation to people results in bad policies, and that is endemic, then morality does not dictate that we must give them representation anyway. Universal franchise is not a good, in and of itself.

  • swood1000||

    Can you refute a single one of his propositions?

    How does the second paragraph below follow from the first? The second paragraph is not the conclusion of a logical argument. Both paragraphs are bald assertions. What is there to refute?

    The modern religion of the West—political correctness—is every feminine vice writ large: bossy, deceitful, petty, and false. Almost everything that is wrong with modern life can be traced to the decline of masculine virtues and their replacement with feminine vices. For civilisation itself is the triumph of masculine energy, vision, and courage.

    For the sake of our civilisation, for the sake of all men and women, we must undo this historic wrong turn. Women have no business voting in elections for public office, let them stick to voting for things they understand, like the X-Factor. This may seem like a quixotic idea. But remember—so was women's suffrage, once.
  • ||

    Those are conclusions. Read the evidence above that.

  • mad_kalak||

    Return of Kings is shit, and Roosh is, well, more self promotion than substance. If you want a decent breakdown of how women destroy civilizations, I recommend this by Black Pigeon Speaks: https://www.youtube.com/watch?v=kOMkl3ApTK0

  • swood1000||

    Those are conclusions. Read the evidence above that.

    Is the following the evidence for the conclusion that women should not vote?

    As soon as American women were allowed to vote, alcohol was banned in the United States.

    Slowly but inexorably, the United Kingdom and the United States, and other societies that allowed women to vote, began to tilt leftward. Welfare states were created, largely because women feel that it's not "fair" to allow people to succeed or fail on their own merits. And it's not "fair" that a woman should have to rely on the father of her children to support her, when she can make men in general pay for her upkeep through the tax and welfare systems.

    As with most female demands, capitulating to women's suffragists didn't satisfy them. Not content with invading the traditionally male space of political affairs, women started insinuating themselves into every other masculine sphere. The universities admitted them, which is why male students today find themselves harangued about imaginary "rape culture". They swarmed into the workplace, which is why working men today find themselves terrified of sexual harassment or discrimination accusations from spiteful female co-workers. Even the military became feminised and sensitised, with deleterious consequences for the fighting man.
  • ravenshrike||

    In which Somin continues to desperately scrabble to justify keeping Kavanaugh off the court. Either Ford has the worst memory ever, in which case her memories of the night in question cannot be trusted, or she purjured herself in front of the senate. Any question that would have nailed down her actions and the actions of those surrounding her in the two months prior to the hearing was met with a variation of I don't recall. It beggars belief that someone with a memory good enough to "100% remember that it was Brett Kavanaugh" wouldn't be able to remember anything of material use from less than two months ago.

  • Rev. Arthur L. Kirkland||

    I do not doubt that old, cranky, gullible, stale-thinking, intolerant white males perceived Brett Kavanaugh to have provided testimony more credible than Prof. Ford's and to have exhibited a better temperament than Prof. Ford's.

    I hope Judge Kavanaugh's fans continue to press those points.

  • donojack||

    He doesn't have to be more credible or have a sweeter temperament. There just has to be something to back up her accusation. Maybe her therapist's records would provide that. We can then decide whether a long discussion about four attackers taking place in the mid-eighties is sufficient to back her up.

  • ravenshrike||

    Kavanaugh could have pulled down his pants, taken a shit, and then flung the resulting mess at Feinstein. It wouldn't make Ford's complete non-recollection of any major events of the last two months any more believable.

  • ||

    I'd pay good money to see someone throw a turd at Feinb*tch.

  • Lasciata||

    You seem to be comfortable with the proposition that a man's life can be turned into a dumpster fire on a basis of an uncorroborated, unverifiable complaint going back to his days in high school by an acknowledged political opponent, augmented and indeed supervised by senators who not only prevented the charges from being presented in a timely fashion but who have already vowed to do anything to prevent the nominee from being seated. I wonder how quickly you'll be changing your sorry tune if you're ever picked for high office with such enemies lying in wait.

  • swood1000||

    You seem to be comfortable with the proposition that a man's life can be turned into a dumpster fire on a basis of an uncorroborated, unverifiable complaint going back to his days in high school

    I don't think that Ilya Somin is arguing that. I think he assumes that this matter should have been kept confidential and handled in closed session. He's arguing that within the closed session a conclusion of a 25% likelihood that the charges are valid should result in the nomination being rejected (without explanation as to why).

  • wreckinball||

    Were did you pull that 25% number from? I would quote Dean Wormer form Animal House on the veracity of Ford's claims. "0.0".

  • swood1000||

    Were did you pull that 25% number from?

    That's Somin's number. Ask him.

  • Public Quest||

    I accept the analogy to a job interview, while imperfect, is the closest we have with a heavy emphasis on the incentives for fraudulent accusations for political purposes. But the interviewers are neither the members of the JC, nor the 100 members of the Senate. Although the 100 senators are the ones that vote, their vote is largely dictated by political concerns unrelated to the hearings. Kavanaugh's audience was the voters that will control the fate of the senators, not the senators. His message seems to have hit a home run with them, and early polls show a shift towards Republican candidates in key races. The political advisors to the handful of senators that matter are getting the message.

    Unfortunately, I foresee only escalation in the future. When Democrats again hold the Senate, expect the filibuster to go away, and a 51 vote majority will then engage in court packing to "rebalance" the court post Trump.

  • ||

    I hope they do, and that it brings about the 2nd Amendment remedy we so desperately need.

  • Public Quest||

    I accept the analogy to a job interview, while imperfect, is the closest we have with a heavy emphasis on the incentives for fraudulent accusations for political purposes. But the interviewers are neither the members of the JC, nor the 100 members of the Senate. Although the 100 senators are the ones that vote, their vote is largely dictated by political concerns unrelated to the hearings. Kavanaugh's audience was the voters that will control the fate of the senators, not the senators. His message seems to have hit a home run with them, and early polls show a shift towards Republican candidates in key races. The political advisors to the handful of senators that matter are getting the message.

    Unfortunately, I foresee only escalation in the future. When Democrats again hold the Senate, expect the filibuster to go away, and a 51 vote majority will then engage in court packing to "rebalance" the court post Trump.

  • wreckinball||

    Normally there is some sanity in the Volokh column. Eugene did you hire this person?

    This process is not a job interview. I mean are you kidding me?

    But even if it was how would you treat someone who has a n accusation with no time or date and no corroborating witnesses. Actually a couple of them disavow her claim.

    This is not "credible" anymore than a work of fiction like a movie or a novel is "credible". It may sound credible but its backed up by nothing.

  • Maryland Geezer||

    The job interview vs criminal trial meme is Dem/liberal misdirection to divert your thinking away from what is actually happening, personal destruction. The Dems, including those on the Judiciary Committee, stated from the moment Kavanaugh's nomination was announced, that he needed to be defeated by any means necessary. Surfacing events thirty years plus in the past, for which no actual evidence exists, is a technique to put Kavanuagh in an impossible situation.

    In a job interview, presumably the personal doing the hiring begins with an open mind and a willingness to consider the candidate's point of view. Not so with Kavanaugh's "job interview" the Dems have only one objective: prevent Kavanaugh from being confirmed "by any means necessary". Let's not dignify what is at work here by characterizing it is a good faith job interview. There is/was no good faith here.

  • M.L.||

    I think preponderance of evidence was a better answer, but there's also no reason to assume that wild accusations out of the blue cannot be investigated in order to move these percentages into a more definitive margin that would satisfy a the vast majority of perspectives on where the evidentiary standards should fall.

    A mere allegation, without corroborating evidence, cannot be enough to defeat a SCOTUS candidate. Here, not only do we have no corroborating evidence, we have contradictory evidence.

    In a time of intensely partisan passions, where politicians are smeared as being "literally Hitler" by mainstream media, where celebrities and others openly fantasize about murder and other heinous violence against fellow Americans, where zealots inflamed by such rhetoric undertake to mow down a baseball field full of Republicans, where Christine Blasey Ford receives over a MILLION DOLLARS in "contributions" from passionate political opponents of Kavanaugh and Trump, and where these allegations are handled not in a way that is best for victims but according to what is best for the Democrat party (or perhaps only a few of its influential principals) . . . . no, it's not enough.

  • M.L.||

    Oh and I forgot to add . . . where a poll shows that 85% of Democrats believe Ford and 85% of Republicans believe Kavanaugh . . . you know it's purely politics, because there's nothing substantial and fact-based to go on.

  • Rev. Arthur L. Kirkland||

    What percentage of Republicans believe Barack Obama was born in the United States?

  • swood1000||

    What percentage of Republicans believe Barack Obama was born in the United States?

    The part I don't get is why such a belief is labelled as racist, as if Republicans would not have used every available weapon at their disposal if Obama had not been black.

  • wreckinball||

    Well the Rev is an idiot so he doesn't "get" much of anything.

  • Rev. Arthur L. Kirkland||

    Racists no longer like to be labeled racists. This is one of the great achievements of our liberal-libertarian alliance.

    Another welcome development is rejection of political correctness. That's why I call a bigot a bigot. Racists are still among us, though, with plenty of stale-thinking gay-bashers, xenophobes, misogynists, and the like.

  • Res ipsa loquitur||

    Let's not forget it was a Clinton ally who began the whole Obama isn't an American rant.

  • Sarcastr0||

    Well, those are some facile numbers. Does the poll actually ask Dems only about Ford and Reps only about Kav? Does the poll allow a break down in 'strongly believe' versus 'probably believe?'

    And even so, throwing up your hands and saying 'it's partisan and thus unknowable' is surrendering your own moral judgement.

    For instance, I agree with your second paragraph. As does a number of other liberals on this thread. But I notice your lament on the third is only for those partisan liberals. There are those lusting for death on this thread, and they ain't on the left.

  • M.L.||

    Thanks. I did not dig into the poll in detail but I imagine you could locate it. I am glad you agree in part and as you may have noticed I agree with having an investigation.

    Yes my third paragraph was one-sided, because I was referring to the allegations which, while they should have nothing to do with politics, have been politicized and are coming from that side. Yes there are those on both sides who call each other Hitler and the like.

  • wreckinball||

    Preponderance of evidence would require actual evidence.

  • wreckinball||

    An allegation without evidence is 0%. That is where we are at now. And we are now moving towards picking apart what little alibi Kavanaugh has, a calendar. Or that he drank too much beer in college. Wow, lets do that investigation on everyone.

    No one can defend against this other than I didn't do it.

  • Sarcastr0||

    An allegation without evidence is 0%

    In which conservatives disprove the majority of criminal investigations, in their quest for that one Justice.

  • M.L.||

    It's really insultingly obvious to say that this should not be treated like a criminal trial. But it's also nothing like hiring a babysitter. The general principle of "innocent until proven guilty" is a moral principle of justice and fairness. There is no circumstance more in dire need of being suffused with such values, than the public circus being conducted in the Senate right now, due to Democrat's incredibly underhanded farcical stunt.

  • Ben of Houston||

    I agree that we shouldn't require evidence beyond a reasonable doubt on these claims. However I disagree on one thing. I don't think that we even need to meet the civil trial preponderance of evidence. If there's a reasonable concern that it is true, that's sufficient to disqualify him.

    However, that being said, we need something more than just an allegation and evidence that a party occurred that fits the very loose description in the correct year and season (last I checked, we still have no evidence that Ford was at that party, and even if she was, that still wouldn't provide any evidence for the crime itself).

    If anything, I think that this is distracting us from his judicial record, what we are actually appointing him for.

  • BrotherMovesOn||

    All the headache inducing, I mean interesting debating about how, what, when is a lie or not a lie, sheesh.
    Save time and cut to the lowest hanging fruit. He was asked if he saw Ford's testimony and he said "no". Twice.
    Nope. Not important, I guess. Don't need to listen to OC's opening statement, you tell your client. Good luck with that. How many here were going over your property notes an hour before the bar exam?
    Riiigghhtt.

  • josh||

    I think substantial likelihood is a fair standard. By that standard, I find it hard to argue that any of these accusations pass muster. However, I do think there are good reasons to vote against him nonetheless. If he is rejected -although his confirmation seems to be a substantial likelihood at this point- my only disappointment will be that Democrats think they won. But, if I worried about idiot politicians drawing all the wrong conclusions from an act, then I'd give up now. It's always one side or another that ruins it for the rest of us.

  • JuliaMottram||

    Like so much else that Ilya has written lately, this is just complete B.S., and written I think because he is worried that Kavanaugh will completely reject his ideas about immigration if he gets on the court. You simply cannot place the burden on the accused in a situation like this; there must be some fairly high evidentiary level.

  • dwshelf||

    It's disappointing to see Somin show so little respect for the presumption of innocence.

  • Krayt||

    25% chance is ok to keep off the court, given the magnitude of the position. I don't see that helps in this case, though.

    And if you believe her, ok, quite reasonable, but remember some on the committee were fine letting him be appointed before it became public because they felt her desire for privacy was paramount. So however bad it is to have a SC justice who did it, that's not as bad as revealing it against her wishes.

  • NM-Steve||

    And Justice Scalia shouts from his grave: "Presumption of innocence is a TRIAL right!"

  • dwshelf||

    Presumption of innocence is a pillar of western civilization. A human right.

    One of the core differences between us and, say, Iran. Or Russia.

    Constitutionally, it's in the same status as the right to defend one's self against physical attack.

    It's disappointing to see this right disparaged. I think those who do so really are not contemplating what life would be like without it.

  • NM-Steve||

    It is not I who disparage it, but there are a number of judges (and IIRC Scalia once commented to this effect) that it is indeed a "trial" right that only applies during a trial - should there be one.

    Judge Bybee dissenting in U.S. v. Scott, 450 F.3d 863,882, is the quickest example I can find:

    Second, the accused enjoys the presumption of innocence as a trial right; an accused does not enjoy the same presumption with respect to ordinary civil rights of citizens, such as freedom of movement. See, e.g., U.S. Const. amend. VIII ("Excessive bail shall not be required"; emphasis added).6 Both courts and Congress have *883 implicitly rejected the majority's argument by treating persons indicted for crimes differently than ordinary citizens. In Wolfish, the Supreme Court rejected a similar argument, concluding that "[t]he presumption of innocence is a doctrine that allocates the burden of proof in criminal trials ... [b]ut it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.

    So, take heart, you are not presumed innocent while you sit in jail for a couple years waiting for your trial... and of course the right evaporates at the moment of conviction, so it is a short-lived one. While Scott was a dissent, there are winning opinions out there for the same proposition (particularly where they aren't very explicit about exactly what they believe).

  • dwshelf||

    In Wolfish, the Supreme Court rejected a similar argument, concluding that "[t]he presumption of innocence is a doctrine that allocates the burden of proof in criminal trials ... [b]ut it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.

    No right is absolute, and generally a right can be disregarded for the common need. Logically such an action requires showing both the need, and the lack of a better solution than to disregard the right. Somin makes no attempt in this direction.

    The problem we face here is one of common sense. When something is as deeply entrenched in our culture as the presumption of innocence, we can lose track of its value, because we can't contemplate how bad life would be without it.

  • Rich Dobbs||

    Thank you for providing me another case to investigate on how awful the implementation of rule of law is in the USA. The Supreme Court makes rulings which are plausible and justified in their analysis of the case at hand, which then provide the grounds for extension of that reasoning to circumvent any particular right or protection provided by the Constitution, or to invent new protections that have no direct basis in the text.

    Now I bet I can find the basis of our current system where often pre-trial conditions are just as severe and far more certain than the average punishment for a broad category of offenses.

  • Bubba Jones||

    If this is a job interview, then Trump is the hiring manager.

    And hiring managers don't invite their political opponents to serve on the interview panel.

  • Krayt||

    Trump himself was hired, and those that did the hiring mandated that the opposition indeed have a say in the hiring.

  • JeffreyL||

    Dear Mr. Somin:

    I don't think you understand the situation. The dam has been broken. I expect one or two more confirmation hearings, maximum. Expect that the next one or two nominees will be dragged much worse than this. If there is one thing the republicans have learned is as Instapundit says "Punch Back Twice as Hard" I would expect that any democratic nominee will have 10,000 rape submissions, be the person male or female. I guarantee you that should Merrick Garland get a nomination tomorrow, he will be portrayed as a rapist, bar none. I expect that over the next 10 years, the process will go back to what it was 100 years ago. A nominee name is provided and the senate will vote. No hearings, no questions submitted, just an up or down vote. I expect within 10 years for the judiciary committee of the senate to be closed in less than 10 years.

  • wreckinball||

    Is this the mythical "both sides" argument? LOL only one side does this.

    No the next D nominee will be treated with respect. The next R nominee will be a S-show. Not sure how much worse this could get but this week will give us a clue.

  • Sarcastr0||

    Hypothetical future double standards always seem to damn the political opposition!

  • wreckinball||

    The eleventh hour stuff started with Moore. And it was OK because you know Moore is kind of creepy. That was just a test. I predicted it would be standard part of the D playbook from now on. And here we are.

  • barb l||

    I agree that underage drinking should not be disqualifying, but lying about it should be.

  • swood1000||

    I agree that underage drinking should not be disqualifying, but lying about it should be.

    Did Kavanaugh lie about underage drinking? Do you have a quote?

  • Naaman Brown||

    Maryland law 1982.

    Maryland has home rule. Each county has their own alcohol laws as they see fit.

    Generally, the age limits on alcohol apply to purchase, and to possession and drinking in public.

    At private parties in private residences, the rules on when underage drinking was legal and when not legal are pretty darned murky. Especially when the only person who claims memory of that party is not sure of the address.

  • Naaman Brown||

    Mitchell Memo uploaded to scribd.com by heavy.com

  • ||

    Now if we were starting with the full list of 25 or so candidates, the job-application standard would be fine. Most of these people must be rejected anyway. But the Senate must confirm or reject one[1] candidate, who also is heavily likely to be approved. So we can't use the job application standard that any flaw is enough to reject. Instead, we are back to innocent until proved [or maybe highly suspected] guilty.

  • Lester224||

    Yes, it's a job interview. Yes people who interview for highly prestigious public jobs may get their reputations trashed publicly. If you want such a high prestige job, you better be clean, even for actions as a teenager. The people who insist on "beyond a reasonable doubt" standards for accusations made during a job interview are fooling themselves or partisans.

  • apedad||

    Isn't this fun!?!

    Errybody saying what should/should not happen; what should be/should not be reviewed, etc.

    Guess what---it's the Republican Senators who are in charge of the process.

    They can make any rules they want, review (or not review) any information they want.

    They can look at it as a job interview, criminal trial, or a mere formality, ask for an investigation, conduct their own investigation (or not!).

    The Republican Senators control everything.

    Let's sit back and watch the show!

  • CrispyBacon||

    "Sexual assault is a very serious crime. A person who committed such an offense should not be barred from all employment for life - especially if the crime was committed in his youth, and he has shown repentance since then. But they can and probably should be barred from being a Supreme Court justice, because the position has such vast power, and so little accountability."

    That appears to be a non sequitur.

    There is weight to wanting moral individuals for important positions but the power/accountability issue is divorced from whether a person once did something really bad. Note the distinction I am making between moral people and previous bad acts. If Kavanaugh admitted to what he is accused but shows sincere remorse in addition to the reformation of a moral life in the intervening years, I would equally fail to see why he should be shut out. Where there is credible evidence of a bad act, nominees should face greater scrutiny but I see no cause for an absolute bar. There are crimes for which no amount of remorse would suffice (for most of us) and overwhelm any care for evaluating the likelihood, long as it was possible.

    You suggest excluding a nominee if we conclude that he probably didn't do it (75% certainty). Again, wanting moral individuals is persuasive but I don't see the logic of your standard. Kavanaugh sits on a powerful and almost-as-unaccountable court. Do you think he should be impeached?

  • John Cuyle||

    I'm not sure how workable the standard suggested is in practice. Preponderance of evidence is pretty straightforward -- which is more likely the truth given available evidence. Something less sure than that gets hard to quantify fast. Especially when you're trying to select the appropriate degree of surety based on job. I'm also not sure the babysitter example works.

    The problem with the babysitter example is obvious: You hire a babysitter to keep the child safe. Tolerance for the possibility of a babysitter harming a child is low in part because it is horrible, and in part because they are seeking a job which gives them access to a child to harm. In this case, what Kavanaugh is accused of isn't the thing he is seeking to do, professionally. A more direct comparison would be someone willing to change a verdict for compensation or personal gain or something along those lines. Sexual assault is largely orthogonal to what a judge does. If he were accused of serial molestation of female clerks, that would be a little closer to the babysitter example, at least in the sense that it would be someone seeking a position in which they will have authority over younger people that they intend to do harm to.

  • dchang0||

    Re: "But there are dozens of lawyers and judges with comparable skills, including many who are conservatives who share his general jurisprudential philosophy."

    This fool assumes that the Democrats won't try the same Borking tactics on ALL of these other conservative candidates.

    I'll bet that if Trump nominates a conservative WOMAN for SCOTUS, there will still be some sexual allegation dredged up from her past. Maybe it'll be that she was a slut in college (sluts are only good if they're on the left). Maybe it'll be that she tried lesbian sex for a night.

  • ||

    The committee brought in a prosecutor to question Ford before the committee, and that prosecutor treated Ford like a hostile witness -- as if she were on trial. When the prosecutor was then used to conduct Kavanaugh's 'interview', a recess was called and the prosecutor sent away on the grounds that it showed too much hostility for a job interview.

    Since when does a character reference deserve to get treated that way in a job interview, but the person actually being interviewed does not?

  • John Cuyle||

    Splitting hairs on "how sure" is complicated. Say that we need 20% surety he's guilty to deny him a seat on the SCOTUS. What amount we would need to deny him a seat on the DC Circuit? 30%? What if we're 35% sure he's guilty? Does it make sense to have a different standard for granting an office than removing someone from office? If not, he's already there, so we should impeach him. Can he be removed based on being 35% sure? If so, this would imply that if the standard for seating SCOTUS is lower than DC Circuit, the impeachment standard should also be lower. Should the standard for denial for lower offices be higher? If a county appoints dog catcher for life, would it make sense to require a conviction to remove him from office since the office isn't terribly important or powerful? But to only require, say, 20% surety for removing a justice from the Supreme Court?

    The point of lifetime appointments to the court is stability. Making them easy to impeach seems to be counterproductive, but making the standard for letting them onto the court in the first place different from the standard for removing them, when the damage for having someone who has committed a crime on the court isn't any less from leaving a seated justice in place versus adding one, doesn't make much sense. I think that's why your original assertion gut feeling (preponderance of evidence) was probably right, and why a lot of people keep coming back to that as the appropriate standard.

  • tgiordan||

    It's true that advise and consent by the Senate is a job interview. However, accusations of criminal activities, are a different matter altogether. There is a balance between keeping a felon off the Supreme Court and making sure that the accusation meets a standard for validity, especially in Kavanagh's case because he could be the dreaded (by the left) fifth conservative justice. Democrats have proposed a standard of "credibility" which has no legal meaning and is ill defined. That is the same problem with Somin's "substantial likelihood". At least "preponderance of evidence" has legal significance.

  • Vesparado||

    The writer appears to be laboring under some severe misconceptions about employment law and practice. And, the standards brought to these hearing (in the past).

    I propose conducting job interviews in a manner analogous to the way these hearings have been conducted. The interviewee and judging panel will sit on the playing field in a stadium filled with partisans who are either for or against the interviewee before a single question is asked (an alternative will be to broadcast the proceedings over the airwaves). These "spectators" will not actually hear the interview but will be informed about it by an intermediary group of partisans who are against the interviewee without knowing much at all about him/her. Job qualifications, examples of work (as applicable), education, etc. are irrelevant (unless they can be used against the interviewee or to inflame the spectators) but are trumped by the interviewee's race and sex (but not religion, unless his or her religion is Islam). You get the picture ...

  • drisco304||

    A job interview should be about qualifications for a job. Fortunately my job interviews, being non-political, never included last-minute non-verifiable accusations about something that supposedly happened decades ago. But maybe that will become the new standard under Democrat rule. Whenever a Republican applies for a job, just lob a false accusation his way and keep him from earning a living. After all, it worked for Stalin.

  • Sarcastr0||

    Democrat rule

    Bit of a tell there.

  • AD-RtR/OS!||

    And they should be private, as they once were.
    Let the Senators interview the nominee in their offices, read their CV's, and then vote on the floor Yea or Nay.

  • JasonPen||

    I think it's very likely that Ford came forward to stop Kavanaugh's nomination. She's had one or more traumatic events like the one she described in her testimony, but not with Kavanaugh, or Judge. She changed her story and inserted Kavanaugh to purposely derail the nomination. The left will do anything to stop Trump, it's pretty obvious.
    1. The therapy notes supposedly mention four boys assaulted her. Conveniently changed to just two, so she could include Judge (wrote a book about high school drunkenness). They did not release the notes to investigators.
    2. The lie detector test only asked two total questions refering to her "statement". Who knows which statement she was referring to? They did not release video to investigators.
    3. There are no witnesses that will go on record to vouch for her. If these social groups from her school and Kavanaugh's school overlapped as she claims (and Kavanaugh refutes) there would likely be common acquaintances.
    4. If the night did happen, how did she get home? It was more than 7 miles away to her house, and no cell phones. She claims she "escaped" and ran out of the house, but where did she go? Who did she call, and from where? Did she walk home? Did she go home right away?

  • Ellis Wyatt||

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims he was legally allowed to drink beer, but his drinking was illegal. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)

    Check my sources. If recent history on this topic is a guide, this will now be followed by the typical raging hatred and personal attacks by Trump's loyal cyber-bullies NEVER any SUPPORTED challenge to the known facts.

    Because: Left - Right = Zero
    Both authoritarian, less than 40% of Americans, and still shrinking..

    It's over Trumpsters. Deal with it. 1/2

  • Ellis Wyatt||

    2/2

    Ar BIG demand that Kavanaugh be withdrawn,,,

    This from a leading Jesuit publication, America Magazine. (Kavanaugh's high school was Jesuit)
    To this, add this the Dean of the prestigious Yale Law School, Judge Kavanaugh's own alma mater, demanding an investifgation

    The list is growing of supposedly dishonest answers from Kavanaugh on Thursday, now expanded to include diversions, evasions and refusals to key question. Personally, his refusal to deny that he is the total drunk in Mark Judge;s book, a classmate named "Bart O'Kavanaugh" This one is becoming a bandwagon. He claims innocence everywhere EXCEPT this published incident. With all his other claims that he was never a heavy drinker, why would he refuse to say it was not him who puked into a car and passed out?

    It's quite reasonable to assume he was avoiding perjury. He refused twice. The first one, he set his jaw and went totally silent, defiantly. New "witnesses" are popping up on his heavy drinking, including an ex-girlfriend of Mark Judge, who says Mark described an event similar to Dr. Ford.s.

    P.S. Kavanaugh just withdrew from the course he teaches at Harvard Law, when over 800 graduates signed petitions calling for his withdrawal

  • JasonPen||

    Cont...
    5. The airplane fear really is my biggest red flag to prove it's a political hit. The democrats know they needed to delay until Thursday to prevent Kavanaugh from being sworn in on this term. And they needed time to convinct Kavanaugh in the court of public opinion before the hearing. Kavanaugh wanted to clear his name immediately, but they couldn't let that happen. They also needed her to cry and use her scared little girl voice on national tv to create sympathy. To make all of this possible they needed to create a reason why she couldn't get there in time. Insert fear of flying. But she travels all over, frequently. She goes to Hawaii, and South America. Frequently goes back to the east coast. It's clearly made up, and if she's lying there for political reasons, it's not a stretch to think this whole thing could be a lie for political reasons.
    6. Why did Feinstein help her with a lawyer in July if she was planning on not releasing her identity? Why take a lie detector test if that wasn't the plan? They knew they were going to release her info and they knew they'd wait until after the hearing to do it.
    7. Yes Kavanaugh was probably a partier in high school. But it appears that Ford was too. But weirdly, before she became known to the public, her high school removed the online yearbook records from her years in high school... Are they hiding something? Was she also a partier, maybe even after the alleged incident that she claims destroyed her life?

  • Ellis Wyatt||

    The airplane fear really is my biggest red flag to prove it's a political hit.

    BY YOU.

    It's not a fear of flying, per se, it's claustrophobia, which is confirmed by the second front door added to her house. The door confirms claustrophobia, which she says traces to being trapped again, with no escape.

  • rtiq||

    I don't care much for Kavanaugh one way or the other but I find some of the author's comments interesting. He believes that if Kavanaugh might have done something as a teenager then thirty some years later he should not serve on the high court. Apparently the author does not believe in rehabilitation. So, anyone worthy of being sent to prison should just stay there for life as, well, "once a criminal, always a criminal". Also strange that drinking and carousing as a student disqualifies for Supreme Court but Clinton taking advantage of an intern while in office was not enough to get them tossed out?

    I also wonder about imbalance of this situation. If Kavanaugh is not believed his reputation is gone. But, if his accuser(s) are not believed, what is the downside for them? I suspect their jobs are still there and their status goes up because they are now victims.

  • misthiocracy||

    I've never had a job interview where people I barely knew in high school were invited to make accusations against me.

  • TxJack 112||

    I have been reading attacks on Kavanagh from progressives for a couple weeks and all of them readily accept the allegation against him although no evidence exists as 100% true and factual. The left screams about how we must all "believe the survivor" and to question any woman who says she has been assaulted is an attack on all women. However, yesterday the findings of the Minnesota AG ( a Democrat woman) were released in regard to Keith Ellison and the allegation of domestic abuse. The AG said that since the alleged victim refused to provide the video she claimed to have, the allegation alone was not enough to conclude the event ever occurred. However, the AG was provided photos of injuries as well as medical records documenting the injuries. Where is the believing the survivor here? Why is the mere allegation not enough when the accused is the the #2 of the DNC and candidate for Minnesota AG? The hypocrisy is astounding because it shows all the claims by Democrats and the left are 100% garbage.

  • Ellis Wyatt||

    The left screams about how we must all "believe the survivor"

    PATHETIC bullshit. And ..

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims he was legally allowed to drink beer, but his drinking was illegal. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)

    Check the sources. If recent history on this topic is a guide, this will now be followed by the typical raging hatred and personal attacks by Trump's loyal cyber-bullies NEVER any SUPPORTED challenge to the known facts.

    Because: Left - Right = Zero
    Both authoritarian, less than 40% of Americans, and still shrinking..

  • Lasciata||

    A job interview? That's rich. How about we get the HR department in on this and see what kinds of questions they're going to allow you to ask of your prospective employee.

  • rajpe||

    The kindest thing to say about this piece is that it is naive.

    The Gorsuch hearings were merely to replace one conservative with another. Conversely, Kavanaugh would be replacing a "swing vote" with a conservative. As such, the Left moved to a total war footing.

    The Left found a perjurer (Ford) to attack Kavanaugh. We know that she lies: She claimed she couldn't fly to the hearings, because of the trauma of the "assault." This was a lie, since she had flown many times, some for fun.

    I do believe in giving people the benefit of the doubt, but there is no doubt that Ford is a lier.

  • Incredulous||

    So... a completely unsubstantiated accusation should make somebody unemployable for life?

    I disagree.

    Innocent until proven guilty.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online