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Brett Kavanaugh, Christine Blasey Ford, Deborah Ramirez, Democrats, FBI, Im-Politic, Jeff Flake, Julie Swetnick, Mark Judge, Republicans, Senate Judiciary Committee, sexual assault, Supreme Court, Trump
Thanks to Jeff Flake, I get to write about the Kavanaugh firestorm again well before I wanted to. On Friday, for readers leading hermitic lives, the retiring Arizona Senator and Republican member of the Judiciary Committee announced his conditional decision to support the nomination of Brett Kavanaugh to the Supreme Court. The result was Committee approval, but only pending the findings of a week-long FBI probe of one and possibly two of the sexual misconduct charges leveled against the federal judge.
This compromise leaves me more convinced than ever that, as I first posted on September 19, the only solution to the Kavanaugh uproar consistent with American democratic values and procedures is a political solution. In other words, because it will not be possible to determine Kavanaugh’s guilt or innocence with a degree of confidence that would satisfy any (remaining!) open-minded observers, a decision needs to be made by Senators with the information they already have at hand – and thereby forcing them to face whatever political consequences result.
At the same time, the weight of the evidence now tells me that, for the good of the country, the least worst of a series of remaining alternatives that are absolutely terrible is that someone other than Kavanaugh fill the Court seat that’s currently open.
Regarding the FBI probe, I have no objection to the kind of short investigation by the Bureau of the Kavanaugh allegations successfully demanded by Senate Democrats. But the the chances of conclusively establishing the decisive facts seem slim at best. For example, it’s not possible to demonstrate Kavanaugh’s innocence versus Christine Blasey Ford’s charges without hard evidence (e.g., a photograph, some contemporaneous restaurant or store receipt) showing Kavanaugh’s location the night of the assault because Ford does not remember which night it was. That’s not a criticism of her; it’s simply a fact that unavoidably complicates such matters.
In principle, Mark Judge, the Kavanaugh friend that Ford claims was the third person in the room during the assault, could change his story and attest to her claims about the judge’s behavior. But simply since such an about-face would expose Judge to legal jeopardy, how plausible is that scenario? Similar problems could face the other party attendees identified by Ford if they changed their varying claims of ignorance of the alleged incident. And even in the absence of prosecution, how credible would such actions leave them in the court of public opinion?
There are two other big potential problems with an FBI investigation – long or short. First, it wouldn’t take place in a vacuum. Interviewees of both Kavanaugh and Ford would have plenty of context – and therefore plenty of incentive to offer claims of all kinds expressly intended to support or discredit either one. And although lying to the FBI is often a criminal act, it doesn’t take an especially active imagination – especially in the current, politically charged atmosphere – to think of many statements that would be impossible to prove or disprove. Nor is it remotely difficult to believe that all manner of Kavanaugh accusers would suddenly emerge, especially since the Bureau accepts anonymous information.
Second, how out of character would it be for Kavanaugh opponents to complain, despite agreeing with the time frame, that it was inadequate after all? That all possible and even likely leads hadn’t been run down? That new witnesses need to appear in public before the full Committee after all? (P.S. – even though Judge has given a sworn statement, since he is the only eyewitness identified by Ford other than Kavanaugh, and as a result is in a class by himself when it comes to her accusations, I believe he should have been subpoenaed last week).
Many Kavanaugh opponents contend that the charges leveled by Deborah Ramirez and Julie Swetnick merit an investigation, too. The former’s lawyer has confirmed that the FBI has contacted his client about her allegation that Kavanaugh shoved his genitals into her face at an alcohol-drenched gathering both attended as Yale University freshmen. I explained on Wednesday why I regard Ramirez’ case as significantly weaker than Ford’s.
As for Swetnick, even disregarding new evidence of serious challenges her own credibility would face (see, notably, here and here), the more I think about her story, the less plausible it seems – even though her statement is sworn as well, and exposes her to prosecution if challenged. Principally, it appears profoundly improbable that the kind of regular mass rape activity she depicts could have been kept so secret for so long, especially among the families of affluent DC-area private school students who, as I know from first-hand observation, genuinely do comprise a series of very close-knit communities. Therefore, it’s at least as improbable that Kavanaugh’s involvement would have escaped the FBI’s notice during the background checks it’s conducted in connection with his several government appointments. (By contrast, it is entirely plausible that the type of incident Ford has described could be kept secret. After all, she’s not claiming any repeats, and the number of attendees at that single gathering was much smaller.)
In fact, partly for that reason, Ford’s case is looking stronger to me all the time. It’s clear to me, anyway, that the Democrats (including her lawyers) are shamefully exploiting her situation. It’s equally clear that they’re playing for time, in hopes that they’ll win back control of the Senate and thus gain the ability to block any Trump judicial nominees of any kind. In particular, it’s clear that the Democrats only decided to leak Ford’s name to the press – and thereby enhance the credibility of her story – only after they became convinced that Kavanaugh was headed for Committee and then Senate approval.
But, as I explained last Saturday, none of those considerations invalidate her claims. Nor, in this vein, can I identify any realistic motive for her to be lying. Even if she’s a fanatic Democrat or progressive, her actions have unmistakably subjected her and her family to the ugliest and most fearful kinds of hounding and harassment – harassment that nowadays could easily turn violent. It’s admittedly possible that she was happy to help an anti-Kavanaugh conspiracy, and “take one for the cause,” by fabricating her tale. ” But I’m glad I don’t have to make that argument.
Moreover, unlike Ramirez, Ford can point to a sworn statement from her husband maintaining that she mentioned Kavanaugh as her assailant back in 2012. One other statement, from a friend, says that this past June, nine days before the announcement of Kavanaugh’s nomination, in response to the friend’s question, she specified Kavanaugh as the federal judge she had initially told him in 2016 had assaulted her in high school. A third friend has stated (also under oath) that Ford told her in 2013 of a high school assault on her by a federal judge, though the judge was not named. (See here for a summary of these statements.)
If strong evidence refuting or strongly challenging any of this comes out in the next week, or whenever, then clearly I’ll need to rethink my conclusion.
Nonetheless, the actions of many Democrats in this Kavanaugh stink hardly persuade me that justice will have been done if his nomination is defeated – much less that the good of the nation will have been served. Quite the contrary. Their readiness to label him a sexual criminal based simply on Ford’s then-anonymous accusation shows that the bar for such charges has now sunk appallingly low, and that the chances of their success have now become appallingly high. (That’s why I completely sympathize with South Carolina Republican Senator and Judiciary Committee member Lindsey Graham’s diatribe against his Democratic colleagues.)
Consequently, there is reason for concern that the kinds of individuals that everyone should want in public service will refuse to take the risk of being Kavanaugh-ed. In other words the party has paved the way for successfully weaponizing slander in connection with sexual misconduct. At least as bad, in the process, for the reasons stated above, participating in FBI background checks might be successfully weaponized, too. The ease of libeling the subject has become too great, and the odds of paying the price too meager.
Yesterday, in an effort to balance some of the various competing considerations, I suggested on Twitter that, following the FBI probe (and assuming its failure to shed much more light on the allegations), that the Judiciary Committee and full Senate proceed promptly to votes. Then, and assuming that Kavanaugh won, that he withdraw his name from consideration. This outcome, I hope, might prevent the Supreme Court’s legitimacy from becoming fatally weakened – both because a critical mass of the public will never trust him no matter what; because he’s sadly tarnished his own credibility with too many sworn statements that raise too many consistency questions and might even be perjurious; and because his latest testimony has exposed too much evidence of excessive partisanship.
Yet a Kavanaugh withdrawal will still enable President Trump to exercise his entirely valid Constitutional right to nominate another conservative who shares his judicial philosophy. Indeed, this act of selflessness might bolster a follow-on nominee’s chances of success by shielding him or her in the public eye from especially scurrilous tactics, and possibly curbing some of the Democrats’ mud-slinging instincts. It might also go far toward repairing Kavanaugh’s image.
But whether this idea is picked up or not, the American political system designates Senators the ultimate arbiters of nominations like Kavanaugh’s. At this point, I see no acceptable way forward other than permitting them to do their jobs – and then trying to figure out how to replace a Supreme Court nomination process that has become irreparably broken.
P.S. I think individuals who purposefully lied to the FBI, or tried to get people to change their testimony, should face charges.
Well-known liberal professor and attorney Alan Dershowitz believes attorney Michael Avenatti should be under scrutiny. Given his client’s wild accusations (Accuser #3), he argues the accuser and Avenatti should waive attorney-client privilege. He has written a whole article on the topic.
Second, the individuals who tried to get Ms. Monica McLean to change her testimony should also face consequences.
Just like the young Democrat staffer who doxxed Senators, and committed other crimes.
For the record, I completely agree that Julie Swetnick could well deservedly face legal jeopardy. I’m less sure whether Avenatti falls into the same (legal) category, but if Dershowtiz says so, that needs to be taken very seriously. Avenatti has certainly behaved unethically. The Senate Republicans will also be investigating the Feinstein staff, which I support as well. And since it’s almost unheard of for staff to take steps that it’s been accused of without a Senator’s approval, Feinstein could deservedly be in hot water, too, at least in terms of censure by her colleagues.
For the record, I completely agree that Julie Swetnick could well deservedly face legal jeopardy. I’m less sure whether Avenatti falls into the same (legal) category, but if Dershowtiz says so, that needs to be taken very seriously. Avenatti has certainly behaved unethically. The Senate Republicans will also be investigating the Feinstein staff, which I support as well. And since it’s almost unheard of for staff to take steps that it’s been accused of without a Senator’s approval, Feinstein could deservedly be in hot water, too, at least in terms of censure by her colleagues.
A wholly political situation devoid of evidence. All four of the alleged witnesses to the alleged fondling have no recollection of her claims. Zero. Zippo. Nada.
And we’re not talking about alleged rape. Is it alleged teenage fondling?
The woman who was allegedly fearful of flying has flown all over the world. She promotes herself as a psychologist, but isn’t licensed in California. She claims she installed a second front door due to her latent fears; in actuality, internet sleuths claim local building permits reveal she added a second door to provide access to an addition they added for rental income. Even with weak questioning and no questions concerning relationship or sexual issues, her story doesn’t make sense.
The only evidence we have is a calendar proving Judge Kavanaugh out of town all summer!
It’s quite possible something happened to her. Two men have stated they could have been the alleged fondler. One man lived on a house which exactly matches her description, and he is a dead ringer for a Kavanaugh look alike!
Once the allegations came forward, the Judge immediately offered to testify, no delays. But his accuser huddled with ideological progressive lawyers for 2 weeks. Her allegations and assertions have changed.
Clarence Thomas 2.0.
Thanks as always for the comment; sorry I can’t share your certitude – especially concerning the “fondling” vs rape attempt issue. Which could well seem pretty academic to a scared 15=year old girl.
It seems the pattern we have here is emotion versus fact; emotional manipulation versus logic.
We’ve seen this before, Tawana Brawley, the Duke lacrosse team, and more.
I’d be more open minded if Democrats had even half the vigor regarding Minnesota politician Keith Ellison, accused by a recent girlfriend of domestic and verbal abuse. Crickets. No investigation, little coverage. Another one of the political interrogators admitted a sexual attack of some kind when he was younger, and now (tries) to take the moral high ground! Hypocrisy?
BTW, the accuser has a lot to gain coming forward. She has become a national figure. She is now famous ala Anita Hill. There are plenty of people in America, especially Northern California, willing to play victim or marytr. And some on the far Left have intense hatred for President Trump, and / or obsession with Roe v Wade.
I agree with you completely about Keith Ellison, and the Democrats (as my post must have made clear) about Tamara Brawley, and about the Duke lacrosse team. And you can add frat row at UVa. But IMO it’s quite a stretch to think that anyone would seek this kind of fame. And re Anita Hill, had she been so high profile once her “15 minutes” were up until the #MeToo movement took off recently? Not as far as I could ever tell.