Job Interviews and Criminal Accusations

Why a much-cited analogy in the Brett Kavanaugh controversy is problematic.

One constant refrain in the debate over how to handle the charges of sexual assault being levied against Brett Kavanaugh is, “It’s not a court of law, it’s a job interview!” The argument being that, unlike a trial, where there is a burden on the state or the plaintiff to prove their case, it’s up to Kavanaugh to prove that he’s worthy of being hired for a lifetime appointment to the Supreme Court.

I’ve pushed back on this several times, arguing that President Trump has already “hired” Kavanaugh and the Senate’s role is more akin to the human resources office doing a background check. That’s an imperfect analogy but that it was the historical norm until quite recently for the Senate to confirm presidential nominees who were highly qualified. But, of course, I recognize that this norm is likely obsolete in the post-Merrick Garland era and that, in the end, all that matters is whether Kavanaugh can get 51 votes.

Regardless, Patrick Chovanec, Managing Director and Chief Strategist at Silvercrest Asset Management and an Adjunct Professor at Columbia’s School of International and Public Affairs, points out that there are severe limits on how accusations of criminal conduct can be used in job interviews. He does so in a Twitter thread, that I’m reproducing with light edits here for the sake of clarity:

I keep running across people saying “it’s a job interview, not a court of law.” I’m not sure those people are familiar with how unproved criminal accusations must be handled in the course of a job interview.

The implication is that in a job interview, the slightest whiff of impropriety should be cause for hesitation, and preferring other candidates. It’s a lot trickier than that because disqualifying a job candidate on such grounds *can* get you into trouble.

Say you were going to hire someone, and already decided that on the merits they were qualified. Then someone you know warned you that this person was a known shoplifter, though they had never been convicted. On the one hand, the accusation might be very relevant to their reliability in doing the job. You don’t want a shoplifter as your store cashier, right? But even if they have been arrested for shoplifting, but never convicted, legally you really need to tread carefully in rejecting them primarily on these grounds. The law varies by state, in terms of what you are allowed to do, but it’s tricky territory.

The basic idea here is that unproven allegations alone are not an adequate basis for rejecting a job applicant. In fact, depending on how you handle it, it could be an unjust and illegal basis for making your hiring decision. That’s true, even though considering hiring someone even suspected of being a shoplifter might make you queasy, especially for a position of trust.

Of course, there might be plenty of other, more legitimate grounds for not hiring them – and that’s fine, as long as the unproven criminal accusations aren’t the real basis for changing your mind.

By the way, in some states even making inquiries may be illegal under employment law, unless you handle it right – and this is particularly true for accusations or even convictions involving people who were minors at the time.

He goes on to note that he’s not arguing one way or the other on how Kavanaugh should be treated. His point is simply that “job interview” is a poor analogy. He does believe that “some level of due process and presumption of innocence is expected when consequential accusations are made, though their exact nature depends on the situation and what is at stake.” At the same time, he acknowledges that, “Constitutionally, the Senate can reject a nominee for any reason, or no reason.”

At the end of the day, of course, it’s purely a political process. Hence my assessment earlier today that Kavanaugh is toast. He was a controversial nominee to begin with and ramming him through at this juncture simply makes no sense for a Republican Party already swimming against the tide with women voters.

FILED UNDER: *FEATURED, Crime, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael Reynolds says:

    The accusations are unproven because Republicans and Donald Trump refuse to investigate them.

    At that point it stops being an ‘unproven’ accusation and becomes a cover-up.

    I’ve asked repeatedly: why is Dr. Ford insisting on a full investigation, and Kavanaugh’s side refuses? And don’t give me that ‘everyone’s afraid of an investigation’ bullsht that might apply to a poor white man or any black man. This is a wealthy, well-connected lawyer who wants to be on the supreme court lying under oath about his beliefs, and rejecting any attempt to get at the facts.

    Presumption of innocence died when Kavanaugh rejected investigation.

    Why, James, why would Kavanaugh and the GOP and the president reject an investigation welcomed by the accuser? Can you answer that? Why?

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  2. James Joyner says:

    @Michael Reynolds:

    Why, James, why would Kavanaugh and the GOP and the president reject an investigation welcomed by the accuser? Can you answer that? Why?

    I think the simplest answer is raw politics: they want Kavanaugh on the Supreme Court at the start of the term, which begins next week. An investigation would potentially take weeks and draw this out past the November election, putting Republicans in a less advantageous position.

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  3. Gustopher says:

    @Michael Reynolds: What if Kavanaugh knew he didn’t sexually assault this woman, because it wasn’t mentioned in his amazingly thorough diary, but he didn’t want the FBI to find out about all the women he did sexually assault.

    He would be in a bit of a bind, despite the completely false accusation.

    (The hypothetical amazingly thorough diary would be entirely different from his very real day planner which he has offered as evidence. The day planner looked forward, and Kavanaugh never planned to sexually assault anyone, he just hung out with people who would take him out to spontaneously sexually assault people)

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  4. Tony W says:

    @James Joyner:

    raw politics

    I would respect them more if they’d just admit it. While the Republicans are at it, they could just decriminalize rape. It doesn’t seem to be a big deal to them.

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  5. Michael Reynolds says:

    @James Joyner:
    Raw politics? Fine. Then what’s all the baloney about presumptions of innocence? If the game is just raw politics then what’s the problem with Democrats playing that game, too? Why this elegiac tone mourning norms that have long since been invalidated?

    The truth is the Republicans have almost certainly known a lot of this for longer than we in the public have, yet they tried to bully this through, indifferent to the possibility that their nominee was a pig. And you want to talk about ‘unproven’ allegations? Unproven when one side is desperate to get at the truth and the other side refuses even to attempt?

    If it’s nothing but brute force, then it’s nothing but brute force, James, and all talk of the aptness of this analogy or that, or ‘unproven’ this or that, is trivial.

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  6. While I agree that the job interview analogy is imperfect, it is, I think, a better one than the one that many on the right want people to adopt that would essentially argue for an “innocent until proven guilty” and “proof beyond a reasonable doubt” standard of proof in these types of situations.

    Whatever a confirmation hearing is, it is most emphatically not a court of law and I don’t think that Senators should be held to the same evidentiary standard that a Judge or Jury is in a criminal case, or even a civil case where the standard of proof is the much more liberal “preponderance of the evidence.”

    As I have pointed out on Twitter, Brett Kavanaugh is asking the Senate to confirm him to one of only nine positions on the Supreme Court. This is a lifetime appointment, meaning he could be there for the next 25-30 years. As such, it strikes me that the burden is on him to convince Senators that he has the qualifications, intellect, temperament, and other qualities we’d like to see for someone holding such a position. With regard to the charges against him, the question of which party is to be believed is one that, in the end, depends on the credibility of the witnesses, which is something we can only know after seeing and hearing the witnesses, including Dr. Ford (and I’d argue that if there are other allegations out there the people who are making those accusations should be heard from as well).

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  7. JKB says:

    Scott Greenfield of Simple Justice had a good take on this:

    This is why Ford is merely a witness. She can neither win nor lose. Only Kavanaugh can, and his loss isn’t punitive but beneficial. After Ford competently raises a doubt, Kavanaugh’s burden will be to persuade the Senate that they should confirm him nonetheless.

    As for the court of public opinion, or as Wittes puts it, the “no-asterisk” standard, there is nothing Kavanaugh can do if there isn’t evidence of his innocence so conclusive that even the most hardened hater must concede that Ford’s accusations fail. It’s essentially impossible to make this showing, proving a negative, especially given the vagaries of the allegations. The extant certainty of the sides suggests that, for many, he will always be an attempted rapist no matter what he says, no matter what the evidence might show. That, too, will be his burden, but there is nothing to be done about it.

    If Kavanaugh is confirmed, is the Supreme Court de-legitimized? No more nor less than it has been up to now. Kavanaugh remains one vote on the Court. If he’s in the majority, it’s because four other justices were in agreement with him and they are equally responsible for the outcome as he is.

    The coin of the Court isn’t the teenage histories of its justices, but the strength of its reasoning. Nothing Ford says makes a rationale stronger or weaker. The question will be whether things Kavanaugh says make senators confident in their political futures.

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  8. Michael Reynolds says:

    @Gustopher:
    Indeed, he rejects investigation because he knows full well that more things are going to come up. Like the Ramirez accusation. Like the Avenatti warning of more accusations to come.

    Innocent white men of means, well-armed with elite lawyers, do not reject investigations that might clear them. They only reject accusations that would incriminate them.

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  9. KM says:

    There’s no such thing as “essentially hired”. Either you legally work for someone or you don’t – a relationship is formally established during the hiring process that has not occurred here. Kavanaugh was promised the position but he has no legal entitlement to it until he’s officially sanctioned and sworn in.

    Perhaps job interview is an imperfect analogy and we should be going with newbie-on-probation. All jobs have a period where you can be terminated if deemed not suitable for the position. This period is usually when you discover that somebody lied about a credential or skill (because they can’t do what they said they could), lied about their background, is not what you thought you hired or generally fails the shit-testing companies put new employees through. Kavanaugh, by having to go before Congress and the discoveries associated with it, is in the shit-testing phase and he’s already exhibiting problems. A company that felt deceived by an applicant they hired is within their rights to let them go during the probation period. Kavanaugh is rapidly becoming a bill of false goods the GOP is trying to rush through probation before anyone gets a chance to see just how damaged he is.

    The Constitution allows the President to appoint damn near anyone he wants for SC as there’s no specific qualifications that must be met. Therefore it is incumbent on Congress to advise and consent so that the President’s choice has some checks to it. For once, they’re actually doing their jobs. Trump could appoint a strung-out crack dealer who’s never been arrested (remember, innocent till proven guilty) to the SC and he’d have the constitutional right to do so – should we just accept that person as “essentially hired” for Congress to rubber-stamp?

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  10. tm01 says:

    Asking Kavanaugh to prove a negative….new heights of stupidity here.

    someone runs a story where the story itself discredits the accuser, and it’s OMG! ANOTHER WOMAN! Who was drunk. And had her memories massaged to reach the conclusion that it was Kavanaugh.

    nice to see that you people want to live in a world where mere accusations can ruin your life and where the presumption of innocence is gone.

    He should be confirmed today.

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  11. Michael Reynolds says:

    @JKB:
    What utter bullsht.

    She can neither win nor lose.

    Half right: she can only lose. Your Proud Boy buddies are threatening her with rape, murder, the death of her family. She, a private citizen, has had her life disrupted far more than poor, poor Brett.

    there is nothing to be done about it.

    Sure there is: have the FBI investigate.

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  12. Michael Reynolds says:

    @tm01:

    And had her memories massaged

    the presumption of innocence is gone.

    I’d explain just how hypocritical and self-contradictory that is, but you’d never get it.

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  13. Raoul says:

    Technically speaking the role of the Senate is advise and consent. Consent is the actual vote, advise is what McConnell told Trump and which he did not heed. Apparently everyone and their mother knew there were problems with BK. I guess what I’m saying is that the constitutional standard has already not been met.

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  14. Daryl and his brother Darryl says:

    @tm01:
    If he is innocent then let the FBI investigate and see what they find.
    Oh…he doesn’t want them to? Gee, I wonder why?
    BTW…you are now on record supporting the invasion of the US by Russia, child molestation, and now attempted rape.

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  15. Kathy says:

    I’ve pushed back on this several times, arguing that President Trump has already “hired” Kavanaugh and the Senate’s role is more akin to the human resources office doing a background check.

    A better analogy is that a CEO has named X to some post, and the company’s board of directos has to approve or reject the candidate. After all, it’s not as though Kavanaugh applied to the post of associate justice of the Supreme Court.

    The FBI doing a background check would fill in the role of the HR dept. doing a background check 🙂

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  16. MarkedMan says:

    Has Kavanaugh denied the second allegation yet? It seems pretty straightforward if he didn’t do it. All the Trumpers here are talking about “the unproven allegation” (I note the switch from uncorroborated, now that we know it was corroborated by more than one person). So they are taking it as a fact that he didn’t do it. So where is Kavanaugh’s denial?

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  17. OzarkHillbilly says:

    The implication is that in a job interview, the slightest whiff of impropriety should be cause for hesitation, and preferring other candidates. It’s a lot trickier than that because disqualifying a job candidate on such grounds *can* get you into trouble.

    BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHA…. This guys a regular comedian. I suppose it’s true if one is hiring a new CFO by poaching one from another company, this new CFO coming with the requisite millions of $s in a bank account and much more in assets, but in the world us regular folks live in? You know, the one where you are unemployed, about to be unemployed, or fear you are about to be unemployed AND if one is lucky has enough savings to cover 3-6 months worth of bills, and I mean STRONG on the lucky…

    Well, in this world they can withdraw a job offer for no reason at all. I mean, what’s a working stiff gonna do? Sue someone??????

    BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA….. Sometimes I just crack me up.

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  18. OzarkHillbilly says:

    I’ve pushed back on this several times, arguing that President Trump has already “hired” Kavanaugh and the Senate’s role is more akin to the human resources office doing a background check.

    While reading Doug’s reply it occurred to me that this is entirely wrong. Trump is NOT hiring Kavanaugh, not in any way shape or form. He is NOT personally ever going to Kavanaugh’s salary. The USofA is hiring Kavanaugh and the taxpaying citizens will be paying him. Trump is recommending Kavanaugh for the job.

    It is the Senate’s job to represent the citizens of the USA and either accept or reject the Presidents recommendation and they can do so based on any criteria they choose.

    ETA I see that @Kathy: beat me to it.

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  19. MarkedMan says:

    Analogies can be useful. But fundamentally appointing a Supreme Court Justice is unique. Any analogue can only go so far.

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  20. HarvardLaw92 says:

    @MarkedMan:

    There is apparently now a third accusation. Police in Montgomery County have confirmed that they’re looking into accusations lodged by another accuser.

    Realistically, this is over.

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  21. Just nutha ignint cracker says:

    @KM: ” should we just accept that person as “essentially hired” for Congress to rubber-stamp?”

    For Kavanaugh–absoforkinglutely! For the next Democratic President’s nominaton–meh… not so much.

    Democracy is at stake here, folks! We gotta do the “right” thing or the people who hate America will win. Ben Carson told us this last week. It’s either Kavanaugh or chaos and destruction.

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  22. grumpy realist says:

    @HarvardLaw92: I can’t figure out if Kavenaugh simply thinks that he and his supporters can squawk “fake news! fake news!” a la Donald Trump and all the problems will go away because the Trumpistas will support him no matter how many accusations bubble up from his history–or he really doesn’t care, because for him, it’s just “boys will be boys” and he’s positive that is the exact same mentality held by sufficient Republicans that he can get away with it.

    Yah, maybe more women SHOULD go around armed with heavy weaponry and defend their honor as soon as possible. I don’t think the “bitchez be lying” crowd would like the results…

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  23. OzarkHillbilly says:

    @Just nutha ignint cracker:

    It’s either Kavanaugh or chaos and destruction.

    Hmmmmmm…… Damn….. That is a tough choice. Decisions decisions…. Aw to hell with it. Anybody got a coin?

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  24. Timothy Watson says:

    I’ve gone through two law-enforcement background checks which included a thorough records (police, school/college, etc.) check, interviews with neighbors/friends/work references/educational references, a polygraph, and a pre-employment drug screening.

    If that background check had found out that four women had accused me of sexually assaulting them, do you think I would have passed the background check and been offered the job?

    Nominees to the federal bench are required to have FBI background check done, given the accusations from now four women which have survived, why the frak hasn’t Kavanaugh been referred back to the FBI for further investigation?

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  25. KM says:

    @Timothy Watson:
    Because you weren’t hired by Trump, that’s why.

    In all seriousness, it just hearkens back to the entitlement mentality. The President picked you!! You, out of millions of people for this important post! Surely that’s a good enough recommendation to override any sort of *cough* issues in your background? Why should you have to face the same scrutiny that say a bank teller or lowly security guard would? Surely he wouldn’t nominate anyone unworthy, troublesome, unsavory or criminal in nature and would have done the research already? He’s the President, the choice of We the People so if his judgement is bad, what does that say about us all?

    Security clearance require checks done by the FBI. Additional information that pops up in the job interview / probation period / essentially hired phase requires investigation leading to possible adjustment / denial of clearance and subsequent loss of job. This is how ordinary Americans have to live their lives and pursue their careers. But the people we hand lifetime appointments of great power seem to have different expectations of treatment……

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  26. Just nutha ignint cracker says:

    @grumpy realist: I think he’s trying a variation on Thomas’ “high tech lynching” comment back in the day. It’s too bad that he doesn’t realize that the metaphor doesn’t work for privileged white guys so well. Yet another issue disqualifying him.

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  27. @James:

    I’ve pushed back on this several times, arguing that President Trump has already “hired” Kavanaugh and the Senate’s role is more akin to the human resources office doing a background check.

    I just think this is incorrect. The president and Senate both do the hiring–it is like launching a submarine’s nuclear missile–it takes two keys.

    I can accept the notion that “job interview” isn’t quite the right analogy, but I think you give the president an undue share of the power here.

    I think you conflate executive officers and members of the courts–and even with the executive officers, the Senate still has to turn the key.

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  28. Franklin says:

    @JKB:

    The coin of the Court isn’t the teenage histories of its justices

    OK, maybe, but what if it’s lying under oath about your teenage history?

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  29. HarvardLaw92 says:

    @Steven L. Taylor:

    This is the point I made on another thread about this. Article II Section 2 mandates advice AND consent. Permission. Approval.

    The deference owed to the executive extends no further than the Senate considering executive nominees. They are under no obligation, traditional or otherwise, to approve them.

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  30. Not the IT Dept. says:

    Oh for *bleep*’s sake, how hard is it in a nation of over 330 million people to find a Republican lawyer/judge who isn’t a jerk? Even in Trump’s GOP, there must be a few. Maybe nominate a woman?

    The reason all this pother is going on is that the Federal Society – and how about a posting on them? – didn’t think that Kavanaugh’s underage frat hijinx and boozing were a big deal. They’re wrong. And now they’re paying the price. Brett (isn’t that the most preciously frat name ever?) Kavanaugh does not have any right to a seat on the SC and if he had an ounce of dignity he’d remove himself from consideration.

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  31. James Joyner says:

    @Michael Reynolds: I’m engaging in a two-track argument.

    In all of the posts and comment threads, I acknowledge that the reality of the matter is that this is about politics and that there are no longer any real rules. Garland sucked and this sucks. The difference is that, until the string of sexual assault claims, the party that controls the White House also controls the Senate this time.

    At the second level, though, I’m engaging reasonable intellectuals as to what the norms ought to be. I’m not arguing that Democrats ought to play by a different set of rules than Republicans. I’m arguing that everyone ought to play by the rules.

    I think Kavanaugh has been charged with some really awful conduct and deserves to have the presumption of innocence. I also think there’s enough credibility in the accusations that we ought to have a thorough, impartial investigation. I don’t think that’s going to happen. But I think it’s what should happen.

    So, in the first of these posts, I’m befuddled by Cass Sunstein, who’s an honest broker, arguing that a 30% suspicion of guilt ought disqualify Kavanaugh. Had he simply argued that this was the Dems’ chance to get even, I wouldn’t have bothered writing about it because I find that an uninteresting point.

    Similarly, while I’m sympathetic to the sentiment behind “job interview” argument, I don’t think it’s an intellectually useful device. Having stumbled on an honest broker pointing out that the charges against Kavanaugh couldn’t be used against him in a job interview, I thought that an interesting element to add to the discussion.

    Again, everyone here knows that we’re playing by jungle rules right now. Republican politicians who championed the Garland gambit have no moral ground to stand on here. But it’s also not the right way to run a superpower.

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  32. Just nutha ignint cracker says:

    @Not the IT Dept.: why go for dignity when you can have power (and possible fame) instead? Cemeteries are chock full of nobodies with dignity.

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  33. Modulo Myself says:

    @James Joyner:

    Did you read what Jane Mayer said? That Yale alumni were talking about this incident in July via email? That’s how the story began. People talking about the guy they went to school with exposing himself to a woman. Maybe they’re mistaken about what he did, but if they believed he did it, they believed it because of their experiences and his reputation. The GOP knew about this reputation, which was why they ushered woman and basketball teams out behind him. But it wasn’t going to work. They were absolutely crazy (and so was he) to believe that stories were not going to come out. This justice is the fifth vote against Roe and it’s the era of #metoo and they nominate a guy whose classmates gossip about how he shoved his dick in a woman’s face when he was 18. The norm is never do this in politics and don’t be stupid.

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  34. @James Joyner:

    everyone here knows that we’re playing by jungle rules right now

    If this is a smear campaign, then it is (ugly) jungle politics.

    If these allegations are true, however, then this is #MeToo biting a nominee, and doing so correctly, yes?

    No allegations and this is probably a vote tally not unlike Gorsuch’s (maybe a little closer).

    Like you, I think the allegations serious enough to warrant an investigation. As I have written, I think that the clock means withdrawal is the smart play.

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  35. James Joyner says:

    @Modulo Myself: Last evening was the first I’ve heard of the charges. I’ve read other pieces describing the culture that existed in his circles, where people got drunk and put their naked butts and penises on people. That’s not particularly shocking to me. Unlike the Ford allegations of the “grab ’em by the pussy” stuff on the Trump tape, that legitimately strikes me as frat boy behavior that we could write off if the person quickly grew up. But, at this point, Kavanaugh seems to be going on the offensive against the accuser, which would be inexcusable if he in fact did it.

    @Steven L. Taylor: I think that, if a majority of Senators legitimacy think Kavanaugh guilty of the charges, they should certainly vote against him. That’s a very different thing than using the allegations as a convenient justification for voting against him on ideological grounds. (And, of course, voting for him if they think he’s guilty because they see him as a vote on Roe is even worse.)

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  36. Michael Reynolds says:

    @James Joyner:
    The face dick thing was pursuant to a ‘get ’em drunk’ culture that multiple sources have now attested to. Let me ask you, as a father of daughters, if it had been one of yours, would your instinct be to think ‘well, frat boys. . .’ or would it be to think, ‘now, where did I leave my baseball bat?’

    Granted I never attended prep school, or much college, instead I managed restaurants and ripped off same, and yet I never stuck my dick in a drunk girl’s face. God knows I’m not putting myself up for sainthood, there’a big long list of things I regret, but somehow I managed not to sexually assault a single woman.

    As to your earlier response – and thanks for the thoughtful way you did respond – I think this falls under the category of early planning for the occupation of post-war Germany. It’s good to think about such things. It is a bit harder when the bombs are still falling.

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  37. Barry says:

    James: “I’ve pushed back on this several times, arguing that President Trump has already “hired” Kavanaugh and the Senate’s role is more akin to the human resources office doing a background check.”

    First, this is simply not true. Please read the Constitution.
    Second, I forgot where you said this about Merrick Garland. Do I have a poor memory?

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  38. Mark Ivey says:

    “They’ve become used to defending their good ole boys from allegations made by their strippers and call girls. They haven’t quite grasped that these allegations are coming from Yale grads and students.” -Greg F

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  39. Modulo Myself says:

    @James Joyner:

    That ‘and’ there is doing a lot of work. The party culture I grew up with was about drinking and trying to get laid. You had booze and weed and maybe coke and invited young women to your parties in hopes of getting them to take off their clothes. That’s where the lines were crossed: trying to get laid. You didn’t whip it out unless you were a clueless loser or a joke.

    Personally, I’ve always thought the reason guys like Kavanaugh hated Clinton so much was because he got it from women. Not because he was a sexual predator–he is–but because he was what they wanted to be.

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  40. JKB says:

    Kavanaugh interview on Martha McCallum at 7 pm. At least one response, is going to set Twitter on fire. That’s right, Kavanaugh says he was a virgin through high school and for many years after. This will release old girl “friends” to speak bluntly.

    Start your insults early.

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  41. Tlaloc says:

    @James Joyner:

    I’ve pushed back on this several times, arguing that President Trump has already “hired” Kavanaugh and the Senate’s role is more akin to the human resources office doing a background check. That’s an imperfect analogy but that it was the historical norm until quite recently for the Senate to confirm presidential nominees who were highly qualified.

    You don’t think multiple cases of rape/sexual assault allegations will raise some eyebrows at HR?

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  42. James Joyner says:

    @Michael Reynolds: Oh, I think it’s appaling behavior. But it’s in the category of things that, unlike attempted rape, I think people could overcome. If you try to rape someone when you’re 17, you’re permanently disqualified from certain offices of high public trust. You’ve lost your LA privileges. But, while it’s never been who I was, I recognize that there is a certain frat boy culture—and, certainly, one that existed in my college days, which overlap with Kavanaugh’s—where rubbing one’s naked butt, or offering one’s flaccid penis or testicles, was somehow considered hilariously funny. Yes, it’s bullying behavior and offensive. But I think it would be recoverable if Kavanaugh had done it and, when confronted with it, admitted the wrongdoing.

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  43. Modulo Myself says:

    @JKB:

    Why do you guys believe this matters? Only a man who has had sex can commit assault? Or that he can’t have taken part in a gang rape in 1984 because he didn’t have consensual sex until 2000? It’s actually very creepy that this is his defense.

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  44. Matt says:

    @tm01:

    nice to see that you people want to live in a world where mere accusations can ruin your life and where the presumption of innocence is gone.

    Who do I need to contact in order to be properly compensated for having my life ruined by not being hired as a supreme court justice?

    I mean seriously how fcking privileged are you to think that not being confirmed on the supreme court is the same as having your life ruined. Aww poor guy is going to have to find some way to get by as merely a lawyer making 7 figures a year…

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  45. OzarkHillbilly says:

    @James Joyner:

    At the second level, though, I’m engaging reasonable intellectuals as to what the norms ought to be. I’m not arguing that Democrats ought to play by a different set of rules than Republicans. I’m arguing that everyone ought to play by the rules.

    And all the while ignoring the fact that Republicans won’t. James, there are no norms anymore, and there won’t be, until your party of preference returns to them.

    End of story.

    Until they do, can I offer you a banana? (as in republic)

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  46. MBunge says:

    A question: Is this supposed FBI investigation people like Michael Reynolds are so insistent upon ALSO going to investigate Dr. Ford? You know, like investigate her dating and sexual habits during the 1980s and well as her own consumption of alcohol? Is Michael Reynolds going to demand Dr. Ford release ALL the notes from that therapist she saw back in 2012 when she supposedly first made this allegation?

    As Professor Joyner points out, if this is just jungle politics then Republicans have little room to complain. But without personally attacking the intelligence of anyone around here, a lot of people advocating that jungle are talking like Tarzan when they’re going to wind up acting like Jane.

    Mike

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  47. MarkedMan says:

    @Barry:

    Second, I forgot where you said this about Merrick Garland. Do I have a poor memory?

    As far as I can recall, James condemned the Republicans behavior wrt Garland from the beginning. And continues to do so.

    And someone else called the Republicans James’ preferred party. James has been fairly open in his multi year journey from “D*mn proud to be a Republican” to “I feel I have to support my team, even if I don’t like what they are doing”, to “I’m thinking maybe I just shouldn’t vote”, to “I no longer recognize the Republican Party and I no longer vote for them unless there is someone whose integrity I am sure of”. In fact, his journey is one of the most revealing things I’ve seen on the Internet and I am grateful that he shared it with us.

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  48. OzarkHillbilly says:

    @MBunge: She is asking to be submitted to that exact thing. Why do you think K is refusing to endure the same trial by fire? Because he is as pure and innocent as the driven snow?

    Jeebus, not even you are this stupid.

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  49. OzarkHillbilly says:

    @MarkedMan: Yes. Nobody should question James’…. quest for the truth (?). It evolves. I try to respect his conservatism even as I disagree with it, but there is no question that James has a fealty to reality.

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  50. Michael Reynolds says:

    @MBunge:

    are talking like Tarzan when they’re going to wind up acting like Jane.

    Good thing you’re not a sexist.

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  51. An Interested Party says:

    Good thing you’re not a sexist.

    Oh come now, that’s a requirement for supporting Mr. Grab’em By The Pussy…

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  52. Michael Reynolds says:

    @MBunge:
    Just a suggestion: Before you again wander in to embarrass yourself, next time read a real newspaper. Hannity’s been telling you the women don’t want to be investigated themselves, hasn’t he? And yet, surprise! He lied to you, and now you look foolish.

    Try harder.

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  53. Tyrell says:

    @KM:
    Keith Ellison – when is his “hearing”?

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  54. MBunge says:

    @OzarkHillbilly: She is asking to be submitted to that exact thing.

    Uh…no, she most definitely is NOT.

    https://twitter.com/frankthorp

    For the link averse, that’s an NBC news reporter Twitter feed where Dr. Ford’s lawyers object to the hiring of an “experience sex crimes prosecutor” in handle the questioning on Thursday. Instead, they’re insisting the Senators do the questioning themselves and we all saw how well that went the first time, didn’t we?

    Hmm. Now why would someone interested in getting out the truth and unafraid of being herself the subject of questions want it handled by a bunch of grandstanding Senate blowhards instead of someone specifically trained to get at the truth in these kind of situations?

    Oh and…TEACHER!!!!!! Someone just personally attacked me!!!!!!!

    Mike

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  55. MBunge says:

    @Michael Reynolds:

    See my response to OzarkHillbilly. Or is your argument that the ONLY PERSON in this whole affair who has shown any reluctance to testify under oath is going to embrace having the FBI rifle through her teenage sexual history? Yeah, I’m sure Dr. Ford’s lawyers wouldn’t object to that at all. And I’m even more sure on the bizarre chance they did, you’d be the first to point out how hypocritical and dubious such a thing would be.

    You’ve distinguished yourself as just SO fair-minded. And well-informed. Don’t forget about SO well-informed.

    Mike

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  56. Michael Reynolds says:

    @MBunge:
    Dude, you are so clueless as to the actual state of the story it’d take me a day just to de-program you. All the women have agreed to testify. All the women have demanded a full FBI investigation. Republicans are refusing to call Mr. Judge and assert that no amount of evidence will influence their vote.

    As usual, you don’t know what you’re talking about. But you’re gratifyingly shrill about it.

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  57. One American says:

    @Michael Reynolds: Investigate WHAT? A couple of disturbed lefty lunatics that are having some sort of an awakening after 35 plus years?

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  58. One American says:

    One more thought….ya’all can still go get your abortions after he is appointed and better yet you can vote for the creepy porn lawyer for your new president in 2020!
    The current FBI can’t even figure out why there was a mass shooting in Las Vegas.

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  59. Timothy Watson says:

    @Matt:

    I mean seriously how fcking privileged are you to think that not being confirmed on the supreme court is the same as having your life ruined. Aww poor guy is going to have to find some way to get by as merely a lawyer making 7 figures a year…

    And meanwhile there are innocent people held in jail for over a year awaiting trial on bullshit charges who are actually having their lives ruined.

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  60. Barry says:

    @MarkedMan: “As far as I can recall, James condemned the Republicans behavior wrt Garland from the beginning. And continues to do so.”

    Good point. However, the position that James is taking here is that (applied back then) Garland *was* and *is* a SCOTUS justice – that Obama had *hired* him.

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  61. OzarkHillbilly says:

    @MBunge: Kavanaugh accuser Christine Blasey Ford demands ‘full investigation’ by FBI before testifying, in letter from her lawyers

    That’s from FOX News. I could have given you CNN’s take, or the NYT, or WaPo, or USA today,
    but hey they’re all fake news, only FOX is real news.

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  62. Daryl and his brother Darryl says:

    @MBunge:
    LOL…you just keep getting dumber.

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  63. Andre Kenji de Sousa says:

    @MBunge:

    For the link averse, that’s an NBC news reporter Twitter feed where Dr. Ford’s lawyers object to the hiring of an “experience sex crimes prosecutor” in handle the questioning on Thursday.

    Nope. Ford probably does not want to be crossexamined by professional lawyers, probably because most people does not want to be crossexamined by professional lawyers. We are not talking about criminal procedures, but about whether this weirdo that was virgin during college and that hoarded calendars should be in the Supreme Court until 2055, 2060 or something like that.

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  64. Just nutha ignint cracker says:

    @James Joyner: I’ve been disinclined to add this to my already long attack on your position, but I’m going to do it now. A phrase like “I think it’s appalling behavior” when followed by the conjunction “but” almost always attaches to a statement that negates the first statement categorically and usually completely. Examples from my teaching experience include statements from parents of “he’s basically a good kid, but I can’t trust him” and “he’s basically an honest kid, but he lies to me all the time.”

    So, I’ll put you on the spot: Is it appalling behavior or is it excusable because he was a frat boy? No. More. Picking. Both.

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  65. Just nutha ignint cracker says:

    @MarkedMan:

    “I no longer recognize the Republican Party and I no longer vote for them unless there is someone whose integrity I am sure of”.

    It looks like he’s backsliding.

    Oh, I think it’s appaling behavior. But it’s in the category of things that, unlike attempted rape, I think people could overcome. If you try to rape someone when you’re 17, you’re permanently disqualified from certain offices of high public trust. You’ve lost your LA privileges. But, while it’s never been who I was, I recognize that there is a certain frat boy culture—and, certainly, one that existed in my college days…

    I cut there because the further blather about Kavanaugh admitting his behavior and apologizing seems inconsistent with “integrity I am sure of” and the the admitting and apologizing horse has already jumped the fence.

    ETA: and note in his statement, he by use of conditional “if” puts the accusation of rape at 17 in “the contrary to fact” category semantically. Is it because rejecting that charge is the only way for him to justify his position? Looks like it, at least to me.

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  66. Just nutha ignint cracker says:

    @Tyrell: Was he nominated for the Supreme Court? If not, then his hearing is on the same relative day that Trump’s was: Election Day. Feel free to accuse him of whatever misdeeds you can prove or tar him with; the voters deserve to have a full record available for their decision making process. You can find the addresses for the major papers in his state on the internet. Maybe the guys at the donut shop will help you writing the letters.

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  67. James Joyner says:

    @Just nutha ignint cracker:

    I’ll put you on the spot: Is it appalling behavior or is it excusable because he was a frat boy? No. More. Picking. Both.

    I’ve said that it’s recoverable. Exposing one’s naked body parts to humiliate and bully is awful behavior but one that’s pretty widespread in jock culture. Unlike an attempted rape, though, I think it’s possible to come back from that sort of behavior and be allowed to rise to positions of high public trust.

    @Just nutha ignint cracker:

    by use of conditional “if” puts the accusation of rape at 17 in “the contrary to fact” category semantically.

    “If” is, by its very nature, a conditional. We have an allegation. We have a denial. If the allegation is true, Kavanaugh is unfit to serve on the Supreme Court and, indeed, his current post on the federal bench. If it’s not, then he may still otherwise be unfit but not because of the allegation.

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  68. Just nutha ignint cracker says:

    @MBunge:

    Oh and…TEACHER!!!!!! Someone just personally attacked me!!!!!!!

    You really have no idea of how many times I hear that statement as a substitute teacher in middle schools, do you? In this case, it does reveal your mindset, though.

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  69. Just nutha ignint cracker says:

    @James Joyner: Okay. Excusable because he was a frat boy it is. Thank you.

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