Im-Politic: What Democracy Supporters Should Think About the Virginia Scandals

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Brett Kavanaugh, Im-Politic, impeachment, Justin Fairfax, Mark Herring, racism, Ralph Northam, recall, sexual assault, Virginia

Although the Virginia political scandals are such a fast-moving, and changing, train, it’s still possible to think about conclusions that validly can be drawn. It’s also necessary, since in this age of the internet and social media, along with a non-stop news cycle, evidence of past misdeeds and misstatements by public figures  inevitably will keep surfacing.

For now, of course, the spotlight is on Virginia Governor Ralph Northam, the state’s Lieutenant Governor Justin Fairfax, and its Attorney General Mark Herring. But it’s clear that it shouldn’t shine equally on each one, and that the responses most consistent with democracy and the rule of law shouldn’t be uniform, either.

The main reason: As repugnant as their adventures in blackface were, neither Northam nor Herring has committed a crime. Consequently, despite the many calls for their resignations by Virginians and non-Virginians alike, I don’t believe they should accede – unless they genuinely conclude their consciences or the public good demand it. This is especially true for Northam, who to date clearly wants to keep his job.

Both his fate and that of Herring should be up in the air – that’s sure. But the decision to keep them in office ultimately should be made by Virginia voters through one of two established procedures. Either they can act on their own, and start gathering the signatures needed to make possible a court-approved recall, or they can urge their elected representatives in the state’s House of Delegates or Senate to approve impeachment and removal.

It’s entirely understandable for Virginians to fear that their state’s government will grind to a standstill as long as Northam remains in the governor’s mansion in particular. (This problem of course exists separately from the complications that would arise from his replacement by the legally troubled Fairfax, or by Herring – though they are major complications indeed.) But if the state’s residents are sufficiently worried about this prospect, they can make their concerns clear and move to assuage them in lawful manners.

None of this argument is intended to belittle other, more ethically, grounded points made to support Northam’s resignation. It indeed is reasonable to contend that he has lost the moral authority Virginians (and other voters) are entitled to expect from their elected leaders. It’s also reasonable to insist that Northam was elected fraudulently – since he never owned up to the blackface incident during the gubernatorial campaign. (And incidentally, I personally find much more troubling the presence of a Ku Kux Klan-hooded figure in the photo in question. For this group is nothing less than a violent domestic terrorist organization with a long record of racist and other bigoted violence.) Ditto for the position that Northam’s apology has turned out to be clumsy at best – and raised new questions about his racial attitudes and sincerity.

From the opposite perspective, I find some merit in the view that Northam’s record in public life on race has been admirable, and that either for that reason, or out of a broader general principle, or some combination of the two, neither he nor his career should be defined solely by a single, non-criminal episode, however odious.

But when a democracy confronts issues like this, neither my individual, nor yours (unless you live in Virginia), is especially important. What needs to count first and foremost are the collective reactions of Northam’s constituents in the state, who entrusted him with specific, major responsibilities, and who first and foremost will be impacted by the various outcomes. Denying a Virginia majority the ultimate say would in effect allot this decision to the loudest (not most numerous) voices in the state – and the nation. And therefore, it would represent a triumph not only of many with no real skin in this game, but of mob rule (albeit a non-violent form).

By contrast, Fairfax has been accused (so far) of two major crimes. Initially, let’s leave aside the comparisons naturally drawn between these sexual assault charges and those leveled at new Supreme Court Justice Brett Kavanaugh during his confirmation hearings. Like Northam, Fairfax is an elected official. Unlike them, however, his alleged offenses could be criminal – which means they raise sets of questions both that are similar to those surrounding Northam (and Herring) and  that are different.

The similar questions entail who should determine Fairfax’s political fate. And the answers resemble those for Northam and Herring: Virginia voters, acting on their own, or through their elected representatives. It’s true that major political and policy problems in the state could result from Northam’s replacement as governor by a second-in-line official whose tenure could be among the briefest on record. But Virginians should have the right to wrestle with these matters and figure out the pros and cons of all the likely scenarios themselves.

Fairfax’ status as an elected official also distinguishes him in an important respect from Kavanaugh – who held a judgeship during his Supreme Court nomination hearings, but was seeking a higher post. What Virginians must decide is whether he should continue in his current office, not whether he deserves a new one. (Interestingly, despite some talk of removing Kavanaugh from the federal bench because of his own sexual assault problems, and even other issues such as character flaws allegedly revealed because he supposedly lied about his experiences with alcohol, no removal procedures were ever initiated. Nor has anything yet come from efforts to impeach and remove Kavanaugh from the Supreme Court.)

The more interesting Fairfax questions are those concerning his own exposure to criminal prosecution. Reportedly, his first accuser, Vanessa Tyson, has decided not to press charges. His second accuser, Meredith Watson, seems to have chosen a similar course of action. 

But Fairfax is hardly out of the legal woods, because the statute of limitations for such crimes in neither of the states in which they allegedly occurred (Massachusetts for Tyson, North Carolina for Watson) has yet run out. And state officials can decide to move ahead on either case themselves. Conviction would definitely warrant impeachment and removal. Moreover, such steps could be defensible even if Fairfax was acquitted – but only if Virginians decided they were repelled enough by information that came out in court, of if they decided that the verdict was unjust.     

Similarly, during such a Fairfax trial, I know that if I lived in Virginia, I wouldn’t want my state government (if Fairfax succeeded Northam), or my lieutenant governor to face the possibility of defending himself against criminal charges – surely a full-time job in and of itself. And as with the Northam and Herring messes, all non-Virginians should feel perfectly free to voice their opinions – and even urge resignations (or hanging on). In fact, as with all free-wheeling debate, non-Virginians may well come up with some insights and ideas that haven’t occurred to Virginians. But I don’t live in Virginia, and for all of us out-of-staters,  our personal stakes in the course of this drama are nil.

One contingency that might change all of these calculations, especially for Virginians: If non-Virginians become so outraged by the prospect of some combination of Northam, Fairfax, or Herring staying in office that they try to organize tourism and other boycotts of the state. I’m generally against such campaigns, although there do seem to be reasons to believe that they’re constitutionally protected when waged by individuals. But what strikes me as dispositive is that, as with the possible consequences discussed above, these are possible costs that Virginians should decided to risk.

So again, Fairfax’ future, like that of Northam and Herring should be for Virginians to decide as they see fit. If we really have faith in democracy, the rest of us will be confident they’ll make the right decision – and recognize that we have no legitimate choice but to leave it in their hands.

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Im-Politic: Why Senate Dems Should be Ashamed…& Kavanaugh Should Go

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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.   

Im-Politic: Judging Kavanaugh’s Latest Accusers

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alcohol, Brett Kavanaugh, Christine Blasey Ford, CNN, Deborah Ramirez, Democrats, Im-Politic, Jane Mayer, Mark Judge, Michael Avenatti, prep schools, Ronan Farrow, sexual assault, Supreme Court, The New York Times, The New Yorker, U.S. Senate, Yale University

Once more, I started a day determined to blog about something other than the Kavanaugh Supreme Court nomination mess, and once more, I realize that there’s no point (until the hard economic data flow resumes – which will be soon – unless some globalist and/or free trade extremist writes something beyond even the pale of their increasingly loopy standard; or until something equally nutty happens with the Rod Rosenstein Justice Department mess).

Here, therefore, is a scorecard approach to where we stand in terms of Kavanaugh’s accusers, their credibility, and the related subject of his credibility – and why some points matter to varying degrees, and some points don’t matter at all, or hardly at all.

The first group of developments is pretty easily disposed of, and concern attorney Michael Avenatti’s claim that a client of his is a third Kavanaugh accuser (in addition to Christine Blasey Ford and Deborah Ramirez) who is “100% credible.”

That she may be. But having initially promised that she would come forward by tomorrow night, the outspoken lawyer, who initially burst into the spotlight by representing porn star Stormy Daniels in her lawsuit against President Trump, may be backtracking. Yesterday morning, he tweeted that the accuser would reveal her identity and her allegations “only when SHE is ready and we have adequate security measures in place.” He added, “it is her choice and hers alone as to when to surface bc it is her life. We expect it within the next 36 hrs.” So keep clock-watching.

At the same time, it looks as if the accuser is not a victim. In a email to the Senate Judiciary Committee (which is considering Kavanaugh’s suitability for a Supreme Court seat), Avenatti certainly never described her as such. Instead, he insisted that she was

“aware of significant evidence of multiple house parties in the Washington, D.C. area during the early 1980s during which Brett Kavanaugh, Mark Judge [the Kavanaugh friend who has denied Ford’s charge that he was present during the sexual assault she’s charged the federal judge committed against her as a high school senior] and others would participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them.”

Avenatti also contended that multiple witnesses could corroborate these facts.

Examined closely, however, it’s not clear at all how conclusive her revelations will be, and whether they are even facts. After all, Avenatti isn’t saying that his client saw Kavanaugh and Judge participate in these rape gangs. He isn’t even saying that his client saw any such activity herself. Apparently she’s simply “aware of” some evidence. And aware how? Is there any documentation? Will it really be “significant” – whatever Avenatti thinks that means. At this point, who knows?

Further, although it’s true that many women have attested to the frequency of abusive behavior by Kavanaugh’s peer generation in this particular Washington, D.C.-area prep school scene, that’s not to say that this behavior amounted to gang rapes, or – as I noted last Saturday – that Kavanaugh himself was personally involved in any of it. These rebuttals also need to be kept in mind whenever the “multiple witnesses” testify in support of Avenatti’s client.

Comparable problems – and then some – plague Deborah Ramirez’ allegations of sexually abusive Kavanaugh behavior during their freshman year at Yale, the year after Ford claims the judge assaulted her. These charges appeared in a New Yorker article on Sunday, and Ramirez, like Ford, has put her name behind them. But you can believe (as I do) that it’s as difficult as it is courageous for any victim to make a sex crime accusation public; that because of the cruel reactions often generated by these charges, even victims who go public often understandably do so only after many years; that for similar reasons, victims often don’t confide even in close family or friends; and that memories of even such traumatic events can age badly, and still be legitimately troubled by Ramirez’ story – and The New Yorker‘s decision to publish it and role in developing it.

First, as widely noted, New Yorker reporters Ronan Farrow and Jane Mayer acknowledge that they could not confirm

“with other eyewitnesses that Kavanaugh was present at the party [where the incident allegedly took place]. The magazine contacted several dozen classmates of Ramirez and Kavanaugh regarding the incident. Many did not respond to interview requests; others declined to comment, or said they did not attend or remember the party.”

Two other major news organizations made the same kind of effort – The New York Times and CNN. Both failed. And neither has been accused of shilling for Republicans or for the Trump administration.

As a result, it’s legitimate to wonder why Farrow and Mayer, and their editors, at the least didn’t decide to wrap the article up at that point – excepting some basic background information about the Kavanaugh battle, and the story of how Ramirez’ experience came into the public domain (which might be crucial, as will be explained below). After all, every other piece of evidence they serve up is either hearsay or opinion that rarely even qualifies as plain gossip.

The most convincing support for Ramirez comes from the first Yalie presented by Farrow and Mayer:

?A classmate of Ramirez’s…said that another student told him about the incident either on the night of the party or in the next day or two. The classmate said that he is ‘one-hundred-per-cent sure’ that he was told at the time that Kavanaugh was the student who exposed himself to Ramirez. He independently recalled many of the same details offered by Ramirez….”

The big problem – this person insisted on anonymity.

Not quite as strong, but deserving to be taken seriously: “Ramirez told her mother and sister about an upsetting incident at the time, but did not describe the details to either due to her embarrassment.” So that looks like contemporaneous corroboration. But it’s disturbingly vague.

Falling into the literal hearsay category – the account of another classmate. Richard Oh did agree to be identified. But he simply “recalled overhearing, soon after the party, a female student tearfully recounting to another student an incident at a party involving a gag with a fake penis, followed by a male student exposing himself. Oh is not certain of the identity of the female student.”

Classmate Mark Krasberg told Farrow and Mayer that “Kavanaugh’s college behavior had become a topic of discussion among former Yale students soon after Kavanaugh’s nomination.: In addition, “In one e-mail that Krasberg received in September, the classmate who recalled hearing about the incident with Ramirez alluded to the allegation and wrote that it ‘would qualify as a sexual assault,’ he speculated, ‘if it’s true.’” In other words, he sounded much less sure about the charges’ veracity in the email than he did when speaking with the New Yorker reporters – quite some time later.

And if you closely examine the rest of the Yale student statements presented in the article, you see that whether they’re anonymous or not, they amount to nothing more than general endorsement’s of Ramirez’ (or Kavanaugh’s) candor and/or character, or lack thereof (in Kavanaugh’s case); expressions of confidence that Ramirez would have told them of the incident had it happened; and various descriptions of some of the Yale undergraduate social scene at the time as an alcohol-drenched zoo where women were often “sexually tormented” (according to then-roommate James Roche), and “victimized and taunted” – including by “male students in [Kavanaugh’s] social scene” (the reporters’ words).

Also fishy: How Ramirez decided to tell her story on a for-attribution basis. To begin at the beginning, Ramirez didn’t initiate the process at all. At one point, Farrow and Mayer write:

“As Kavanaugh’s confirmation hearings became a national story, the discussions among Ramirez and Kavanaugh’s classmates took on heightened urgency, eventually spreading to news organizations and to the Senate. Senate aides from Ramirez’s home state of Colorado alerted a lawyer, Stanley Garnett, a former Democratic district attorney in Boulder, who currently represents her. Ramirez ultimately decided to begin telling her story publicly, before others did so for her. ‘I didn’t want any of this,’ she said. ‘But now I have to speak.’”

The role of the classmates is at least an orange flag. Remember: None of them professes to have been present when Ramirez says she was abused. Some of them have been just fine with conveying hearsay and evidence-free speculation to the media. But once the confirmation hearings “became a national story” (not, apparently, once Kavanaugh was first appointed, but possibly once his confirmation looked certain?) they were engaged in urgent discussions among themselves. And then, their discussions “spread” (like an oil slick?) to “news organizations and to the Senate.”

At that point, moreover, the fingerprints of Democratic operatives are everywhere to be seen. As Farrow and Mayer tell readers at the start of their article, “The allegation was conveyed to Democratic senators by a civil-rights lawyer” (presumably Garnett, a prominent Colorado Democrat). The reporters go on to write that Ramirez “was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking at the time of the alleged incident.”

To me, as suggested above, that’s perfectly understandable on all counts. As Ramirez has confessed, she was “embarrassed” – even though there is no reason to believe she did anything wrong, unless you count getting sloshed.

But contrary to the Farrow-Mayer description above, Ramirez didn’t simply decide to go public merely because some time had passed (“ultimately”) or even (mainly?) because she knew it would leak and wanted – again, understandably – to prevent her story to be distorted, at least according to her recollections. And she didn’t make the decision autonomously.

Instead, as the reporters themselves say, “The New Yorker contacted Ramirez after learning of her possible involvement” in the incident in question. Can anyone doubt that the aforementioned Democratic Senators gave her name to Farrow, whose dogged reporting was central to unmasking serial predator Harvey Weinstein, the former King of Hollywood (and major funder of Democrats) and Mayer? Not that there’s anything wrong with that. But it was this move, not anything that Ramirez initially said, that guaranteed she would lose her anonymity.

Further, her decision to go public-for-attribution evidently wasn’t made autonomously, either. As Farrow and Mayer put it:

“In her initial conversations with The New Yorker, she was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty. After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.”

It’s difficult to finish these sentences and avoid the conclusion that Ramirez was prompted – including by a former Democratic public official.

Yet Ramirez may have been more than an entirely moldable piece of clay. In its own aforementioned investigation of the story, The New York Times also reported, “Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.” So Ramirez’ confidence in her recollections may be anything but confident.

Not that Kavanaugh is home free on the merits (as opposed to the politics) by any means – mainly for two reasons. First, although he has categorically denied all allegations, the judge’s efforts to portray himself as a near choirboy in private school who may have occasionally had a few too many beers don’t square well with some compelling counter-evidence. And it’s not just that the early-1980s social landscape surrounding Kavanaugh’s alma mater and similar Washington, D.C. area institutions of learning sounds like a coed Lord of the Flies-type scene on steroids. It’s that several Kavanaugh peers have depicted him for attribution as a problem drinker in college, and that according to his close high school buddy Mark Judge (the alleged first-hand observer of the attack Ford claims) called their circle of friends “Alcoholics Anonymous.”  

The point is not how much of a boozer Kavanaugh was or wasn’t, particularly since an alcohol problem wouldn’t by itself prove that he committed any sexual assaults or engaged in harassment in high school or in college. It’s that if his credibility is convincingly challenged on this score, his blanket denial of the sex crimes looks a lot dicier.

Second, the charges of Kavanaugh’s first accuser, Christine Blasey Ford, have been called into question because aside from the judge, three of the five total individuals (including herself) that she’s stated attended the party where the alleged attack took place deny any memory of the evening. (One, a close friend, added, however, that she believed Ford.) Nonetheless, Ford is not completely lacking for corroborating witnesses.

As mentioned in my post last Saturday, Ford told a therapist of the incident in 2012. The therapist has no record of Kavanaugh’s name being mentioned. But Ford’s husband says that it was. (They were in couples therapy.) In addition, just this morning, her attorneys submitted to the Senate Judiciary Committee four sworn affidavits supporting her charges. They included one in which her husband restated his claim that Kavanaugh’s name was mentioned at the therapy session, and one in which self-described “close friend” Keith Koegler professed that Ford identified Kavanaugh as her assailant in an email in June, 2016 – right after the judge was listed as a likely Supreme Court nominee.      

As a result, it seems clear that a cloud is going to remain over Kavanaugh’s head no matter what happens at the upcoming hearing – a cloud much like that which the uproar and its fiendish complexity has formed over the nation’s entire politics.  

Im-Politic: The Kavanaugh Battle Needs Much Clearer Thinking on Both Sides

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2018 elections, Brett Kavanaugh, Christine Blasey Ford, Democrats, Im-Politic, midterms 2018, Republicans, Senate Judiciary Committee, sexual assault, Supreme Court

I’m not crazy about recycling the gist of a recent series of Facebook exchanges here at RealityChek. But the debate over the Brett Kavanaugh Supreme Court nomination has become so heated as well as so important, and most thinking on both sides so sloppy, that it’s worth laying out comprehensively here the absolutely crucial distinctions that both Kavanaugh supporters and opponents generally keep ignoring or confusing.

>The clear trauma and even shame that Christine Blasey Ford felt during and following her alleged encounter with Kavanaugh at that party during their high school years does not necessarily mean that he committed sexual assault (assuming that she has IDd him accurately). Since she was only 15, it’s entirely possible that she experienced this reaction to an advance that, however clumsy and/or drunken, doesn’t qualify as any type of sex crime.

>The failure of Kavanaugh’s alleged actions to rise to the level of criminality does not necessarily mean that Ford was not psychologically and emotionally devastated, and that this reaction did not last for decades – and even continued to this day.

>As stated in my first Kavanaugh post, Ford’s apparent failure to report the incident to anyone, including the authorities, until 2012 (to a therapist) does not necessarily mean either that nothing like the incident ever happened and that she’s fabricating a story. Sex crimes and – by extension – perceived sex crimes are among the most under-reported of criminal offenses, precisely because of considerations like the above feelings of shock, shame, and humiliation victims so often experience, and their understandable reluctance to keep these wounds open, or to reopen them. Nor should we forget the still all-too-common tendency to blame the victim.

>Even if one of Ford’s motivations, or her main motivation, is to stop Kavanaugh, such partisanship does not necessarily mean that the incident she describes, or something like it, didn’t happen.

>Similarly, Democrats’ clear determination to use Ford’s charges as late-emerging weapons in a campaign to defeat the Kavanaugh nomination that long predates the allegations does not necessarily mean that the incident, or something like it, didn’t happen.

>The same goes for the claims that Democrats have ignored or downplayed similar sexual assault or abuse allegations against figures like former President Bill Clinton or U.S. Congressman and Democratic National Committee Deputy Chair Keith Ellison, who is currently running for Minnesota Attorney General.

>Claims that Kavanaugh has led an exemplary adult life, and even that he was an exemplary teenager, don’t necessarily mean that he didn’t commit the acts claimed by Ford, or something like them.

>Claims that such abusive behavior was commonplace among Kavanaugh’s peers, as made by many graduates of the private girls’ school Ford attended, along with many other colleagues and friends, do not necessarily mean that Kavanaugh himself committed any such actions either on that evening or at any time.

>Claims that Republicans’ opposition to a lengthy investigation of the alleged incident, along with Kavanaugh’s failure to call for one, do not necessarily mean that the former fear that Kavanaugh is guilty, or that he himself knows he is guilty. Both his supporter and the nominee can legitimately wonder how Kavanaugh’s innocence could be proved conclusively to Democrats and other died-in-the-wool Kavanaugh opponents, no matter how long such a probe lasted.

>The lifetime nature of a Supreme Court appointment does not necessarily mean that the current (political, not legal) process of confirmation should deny Kavanaugh some significant presumption of innocence (if not the “beyond a reasonable doubt” standard typically used in criminal trials).

As for me, I’m still undecided on whether Kavanaugh committed the acts alleged, and still deeply skeptical that a lengthy inquiry will shed any meaningful light on the question. That’s why I still believe that the only fair and legitimate way to decide his fate is via politics – with a vote on his nomination by the elected politicians Constitutionally authorized to make such decisions, and who know that, before too long, they may well be held accountable at the ballot box.

The only valid reason I can come up with to block a Senate vote indefinitely would entail a charge that Kavanaugh lied to the Senate Judiciary Committee on other matters during his confirmation hearings. But it’s surely revealing that none of his die-hard Senate opponents has yet brought a formal accusation along these lines.

Interestingly, my brother yesterday advanced an intriguing alternative political path out of the Kavanaugh conundrum: Postpone the vote until after the midterms, on the assumption that the outcome will represent a referendum on the nomination. In other words, if the Republicans retain control of the Senate, the public will have in effect endorsed Kavanaugh (and ensured his accession to the Supreme Court), and if Democrats take over the upper chamber, the public will have acted to ensure Kavanaugh’s defeat.

I’m agnostic on this matter, too, since in both scenarios, the public’s votes for the Senate will surely be influenced by many issues other than the Kavanaugh nomination. In other words, there’s no perfect or perhaps even good way out of the Kavanaugh predicament. And even if there were, everyone should continue feeling free to weigh in. But it would sure help if the thinking surrounding the controversy becomes a lot clearer than what the nation has been reading and hearing so far.

Im-Politic: Why the Kavanaugh Solution – at This Point – Needs to be Political

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Brett Kavanaugh, Christine Blasey Ford, Constitution, Im-Politic, Republicans, Senate, sexual assault, Supreme Court, Trump

If you’re not completely depressed by the Brett Kavanaugh mess, you must be a hopeless partisan – either Democratic, because you’re exhilirated by the improved odds of derailing a Supreme Court nomination you opposed from the start, or Republican, because your main reaction is rage that Kavanaugh’s confirmation is now endangered by a shameful smear. Yet here’s a surprise: Despite the torrent of strident partisanship that’s still gushing, the often (rightly) besmirched process of “politics” looks like by far the best solution available, at least at this point in the story.

What’s most depressing, of course, is the likelihood that now each likely outcome of this nomination battle could result in a major injustice – either rewarding a sexual criminal with a lifetime post on the highest court in the land, with all the power that entails, or trashing the reputation of an innocent and possibly destroying his current family life.

Moreover, it’s entirely possible to be legitimately depressed about this situation even if you believe, as I do, that victims of sex crimes often fail to report them right away, or even for many years, for reasons that anyone with any sense of compassion should understand and accept; that for equally valid reasons, their memories of the these incidents can be flawed; that denial is a standard initial response even of the guilty; that the trauma induced by such actions is so powerful that even offenses by the relatively young can’t be soft-pedaled, much less excused; that even one-time assaulters need to be punished; and that in the court of public opinion (as opposed to the legal system), a blanket assumption of innocence shouldn’t always be made.

It’s entirely possible to be legitimately depressed despite these observations because, however compelling they are in general, it’s always less certain whether they apply to an individual case.

As a result, perhaps most frustrating and dispiriting of all, it’s entirely possible that the truth may never be known. There’s a view out there that, given enough time, resources, and energy by journalist or law enforcement officials, the full story will eventually come out. This is what we’ve just been told, for example, by former New York Times Executive Editor Jill Abramson. But with only one other person in the room at the time, according to alleged victim Christine Blasey Ford, and her apparent failure to share her story contemporaneously (and No, that’s not a criticism), this optimism seems excessive.

At the same time, the case for confirming Kavanaugh has merit as well. For example, there’s some evidence that a large percentage of sex offenders are repeat offenders, but no evidence has yet surfaced of a pattern of abusive behavior toward women by Kavanaugh at any stage of his life. (Some researchers, however, have found that most sex offenders are not repeaters.)

Less convincing, but not entirely out of bounds, is the “horseplay” argument – i.e., that the force of Kavanaugh’s alleged advances was not nearly as strong as Ford has indicated. On the one hand, I strongly agree that whenever anyone signals reluctance, an immediate stop in the activity in question is mandatory – even when teens are involved. On the other hand, as observed by Washington Post columnist David von Drehle (who wants Kavanaugh to withdraw his nomination), “adolescent boys and girls often address their awkwardness with alcohol, and sexual inexperience plus inebriation is a time-tested recipe for regrets and misunderstandings.”

So there’s plenty of powerful ammunition available to both sides in the Kavanaugh fight, and possibly towering stakes. What to do? Here’s where politics comes in. The Constitution vests the Senate with the authority to approve or disapprove a President’s Supreme Court (and many other) nominees. Although the Founders were looking for a check on presidential power from a body that they wanted largely shielded from popular pressures (by stipulating Senators’ election by state legislatures), since the advent of direct elections in 1913 (via the 17^th Amendment) these pressures (i.e., standard politics) are now the paramount standard. Here’s the essential background.

As a result, with this set of circumstances, the most legitimate way for the nation to solve this problem is to hold a Senate vote on Kavanaugh (unless he withdraws or President Trump pulls the nomination), and therefore discover what the popular will is. This vote could certainly be preceded by a new investigation that would add to what is already known about Kavanaugh from the several background checks he has gone through during his career in public life. But I would hope that the investigation is short – because of my aforementioned doubt that new evidence can be found.

Senate approval of Kavanaugh would be a clear sign that at least a plurality of Americans is comfortable with him serving on the Court – for whatever reason they choose – and vice versa. Moreover, there’s a useful recent precedent in this regard: President Trump’s election.

As many no doubt remember, shortly before the November, 2016 vote came the surfacing of the “Access Hollywood” tape, which contained a boast from candidate Trump about behavior that could well qualify as sexual assault. In addition, throughout the campaign, numerous women accused Mr. Trump of just such behavior. These charges, along with the tape, were widely reported. The public had ample opportunity to consider them. Voters ultimately deemed him fit for the highest office in the land nonetheless.

Voters have a chance to tell their Senators what they think of the Kavanaugh nomination, too, and lawmakers can also consult the polls. Is it reasonable to contend that, because Ford’s charges became public so recently, voters need more time to contact their Senators, or that Senators need more time to seek their opinions? Sure. But the resulting delay in the vote, again, should be short.

Skeptics could argue that, since Republicans hold the Senate, this exercise would be a sham. But the GOP members might run significant risk for blowing off their constituents’ opinions, especially given that the party’s ratings from women have been pretty dodgy lately. Moreover, if after any confirmation, important evidence against Kavanaugh came out, he could be impeached.

A reasonably prompt Kavanaugh vote certainly wouldn’t disburse all the clouds currently hanging over his nomination. But it would stamp it with a democratic (small “D”!) seal of approval. What more could the nation reasonably hope for?

Im-Politic: The Biggest Media Clinton Cover-Up?

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2016 election, Bill Clinton, chattering class, democracy, Donald Trump, Establishment Media, Gennifer Flowers, George Stephanopoulos, Hillary Clinton, Im-Politic, journalism, Juanita Broaddrick, Kathleen Willey, Mainstream Media, Monica Lewinsky, Paula Jones, sexual assault, videotape, women

What does George Stephanopoulos know and why isn’t he talking? Those to me are two of the most important and clearly the most inexcusably neglected, questions that have been raised in the last 36 hours of the Donald Trump video firestorm. I say inexcusable because the answers could produce major evidence that the establishment media are becoming ever less capable of playing their historic and indispensable role of American democracy’s watchdog.

As must be obvious to anyone following this latest twist of the 2016 American election cycle, one of the leading issues being raised is whether the Republican presidential nominee is being held to a standard fundamentally different from that applied to his Democratic rival’s husband, Bill Clinton, both throughout his presidential years and, reportedly, for decades before.

“Reportedly” is of course the key here. The most disturbing parts of the Trump video clearly are those passages in which he suggests he committed sexual assault. If true, that would of course eliminate the “locker room banter” defense put up by his surrogates and other backers. Indeed, it’s entirely conceivable and understandable that a critical mass of American voters will view even that possibility as a disqualification for any public office. 

I wrote yesterday, there’s no shortage of hypocrisy over the Trump-Clinton comparison on either side. But so far, the Clinton supporters would seem to have the advantage because, as I understand their position, the only Bill Clinton offense that’s been proven has been the former president’s affair during his administration with then White House intern Monica Lewinsky – and that this affair was consensual.

That’s true enough. But for many years, serious charges of far worse behavior by Bill Clinton have been circulating. In connection with one of those instances, a sexual harassment lawsuit filed by former Arkansas state employee Paula Jones was settled, with Clinton paying her $850,000. (He admitted no wrongdoing.) At least one other woman, Juanita Broaddrick, has accused the former president of raping her. At least one other woman, Kathleen Willey, has charged him with sexual assault. Neither woman took her claims to legal authorities at the time – which is a common feature of such episodes.

My purpose here isn’t to litigate or even debate the merits of these real and alleged scandals. Instead, it’s to point out that one of America’s most prominent journalists is and has been throughout the campaign in a position to shed considerable light both on Bill Clinton’s behavior and on Hillary Clinton’s treatment of the women claiming to be his victims. That’s George Stephanopoulos. He was a top adviser to the former president’s first election campaign, and then served as his White House press secretary for Clinton’s entire first term.

As a result, it’s inconceivable that Stephanopoulos didn’t participate in high-level meetings with both Bill and Hillary Clinton on handling these controversies both during the campaign and during the first term. (Jones filed her complaint in 1994, and an imbroglio involving an alleged Clinton affair with Gennifer Flowers roiled the 1992 White House race.) That is, he surely has first-hand knowledge that bears directly on the most sensational issue before the nation today – about the veracity of the various sexual misconduct-related charges against both Clintons.

But on Stephanopoulos’ own Sunday morning talk show, on the very day of a potentially monumental presidential debate in which these questions are sure to come up, the host said nothing even hinting at his former employment by the Clintons. None of the other journalists or political figures on the show’s panel of commentators did either. Nor can I find any instance of an establishment journalist asking Stephanopoulos about his nearly unmatched access to the Clintons in those years.

Could the reason be that Stephanopoulos is thinking about passing through an increasingly busy revolving door yet again and returning to government from his media perch? Or is he still simply a Clinton partisan? And what of the rest of the Mainstream Media and political chattering class members that owe so much of their public profile, and therefore incomes, to shows like Stephanopoulos’? Are some of them having the same thoughts, or holding the same views? Are they worried about getting blackballed from “This Week” – and possibly from the rest of the broadcast and cable networks if they put one the industry’s leading lights on the hot seat? Or are they above all concerned that they’ll be informally ostracized from one of America’s most glamorous social sets for displaying bad form?

Until these questions start getting asked, Americans will have more and more reason to suspect that their country’s news industry can’t be trusted to hold their public figures accountable not simply because of political bias, but because the industry keeps steadily merging with those it’s supposed to be covering. How a democracy can retain its fundamental health under those circumstances isn’t easy to see at all.