Kavanaugh Musings

Several days after detailed sexual assault allegations against the Supreme Court nominee, I'm not fully sure what to believe.

Several days after detailed sexual assault allegations against Supreme Court nominee Brett Kavanaugh emerged, I’m not fully sure what to believe.

The charges are extremely serious. Despite allegedly happening when Kavanaugh, now 53, was a 17-year-old high schooler, they’d be disqualifying if proven. Neither being intoxicated nor being 17 excuses an attempted rape. And, certainly, drunken 17-year-olds have suffered far more serious penalties than being denied one of the nine seats on the Supreme Court for lesser crimes.

WaPo columnist Alexandra Petri‘s widely-circulated satirical column includes this passage:

If, apparently, a single alleged assault at a single party decades ago is to be frowned upon, then no man is safe, right?

What’s next? You can’t harass a colleague and serve on the Supreme Court? You can’t pick up high schoolers outside custody hearings and serve in the Senate? You can’t have a meat locker full of female femurs and expect to breeze through your confirmation as interior secretary?

How are we going to fill our offices if this is the new rule? I bet you will say I cannot shout at women as they pass on the street before dragging them to a concrete bunker and then still expect to become governor! What next? I’m supposed to make sure everyone I have sex with is willing?

Even granting that our societal mores have evolved considerably since Kavanaugh’s high school days (the notion that a wife could deny her husband sex was still controversial and “date rape” was an emerging concept), the behavior Ford accuses him of would have shocked the conscience even then. Even in what one imagines was a rather misogynistic culture of an all-boys prep school, holding down a girl and attempting to rip her bathing suit off would have been a barbaric act.

While we don’t know—and likely will never know—what happened at that party, I’m inclined to believe Christine Ford’s accusation. Or, at least, to think Ford is telling the truth as she knows it.

Former federal prosecutors Mimi Rocah, Barbara McQuade, Jill Wine-Banks, Joyce White Vance and Maya Wiley argue persuasively that this is not a simple case of “he said, she said.”

Prosecutors and investigators are confronted with these scenarios frequently and don’t just throw up their hands and say, “We can’t decide.” Instead, prosecutors look for corroborating evidence — and there are strong indications already that Ford is telling the truth about her attack. Here are some of those indicators:

First, there is corroboration. Ford’s therapist’s notes in 2012, provided to The Washington Post, generally record her account of the attack. To believe that this is a made-up tale to prevent Kavanaugh’s confirmation, Ford would have had to plant the seeds of this story in 2012. That makes no sense.

Second, while not determinative, the fact that Ford passed a polygraph administered by a former FBI agent lends credence to her claims. Polygraph exams are inadmissible in court because they are not always reliable, but the FBI and other law enforcement agencies frequently use polygraph tests to assess the credibility of witnesses and defendants.

In addition, consider the motives of Ford, who by all accounts is not a particularly politically active person, to go public with allegations of sexual assault. It appears that she did not want to speak publicly at all, but that reporters discovered her identity and pursued her. Ford knew that she would be personally attacked in front of her children, colleagues, students and friends. There is no reasonable explanation for why she would subject herself to such humiliation other than the reason she has given: that she felt she had a duty as a citizen to speak up.

Many people have pointed to Ford’s delay in going public as evidence that she is lying. As prosecutors, we have learned that victims of sexual assault do not always come forward immediately — and often never do — because they are shamed by society, fear not being believed, worry that they will be blamed for the attack or just want to move on with their lives. Delay in reporting — particularly in the area of sexual assault — does not mean a report is false. And difficult as it is to come forward now, it would likely have been even more daunting for a 15-year-old girl in the 1980s, when Ford says she had this experience.

If you are still inclined to believe that Ford is lying, ask yourself: Why would she create a defense witness by identifying Mark Judge, who was and still is indisputably a friend of Kavanaugh’s, as being present and participating in this attack? Why would she place at the scene an individual who could, because of loyalties to his friend, contradict her account if she were making this up? She wouldn’t.

Further, while false accusations of rape happen quite often (as many as 10 percent of all rape accusations), Ford doesn’t fit the profile. Sandra Newman, writing last May, well before the Kavanaugh nomination, aggregated several studies on the topic. While her piece is far too long to excerpt here, this is key:

When one looks at a series of fabricated sexual assaults, on the other hand, patterns immediately begin to emerge. The most striking of these is that, almost invariably, adult false accusers who persist in pursuing charges have a previous history of bizarre fabrications or criminal fraud. Indeed, they’re often criminals whose family and friends are also criminals; broken people trapped in chaotic lives.

Crystal Mangum, the accuser in the Duke lacrosse case, was the archetypal false accuser. She had previously reported another brutal rape/kidnapping in which no one was ever charged. She had a previous felony conviction, and she ultimately went to prison for an unrelated crime (in her case, murdering her boyfriend). She had trouble keeping her stripping job because the combination of drugs she was on—including both anti-depressants and methadone—made her keep falling asleep at work. Tragically, she seems to have genuinely suffered sexual abuse as a child—another feature that often appears in adult false accusers.

But while false accusers often have similar histories, they have various motives. These can be divided into roughly four categories: personal gain, mental illness, revenge, and the need for an alibi.

Ford is, by all accounts, a successful professional. She has no history of false accusations. The revenge motive makes no sense at all some three decades hence. Ditto the alibi. It’s virtually inconceivable that she’d subject herself to the firestorm she’s under to derail a Supreme Court nomination if she didn’t honestly believe Kavanaugh did what she’s accusing him of. Even if she successfully derails him, President Trump will simply nominate another Roe v. Wade skeptic; they’re not hard to come by.

That said, while I disagree with some of his analysis, I share Noah Rothman‘s fears here:

Given the dearth of hard evidence, it is understandable that observers have begun to look to their own experiences to evaluate the veracity of Ford’s allegations. The Atlantic contributor Caitlin Flanagan is the author of a powerful and compelling example of this kind of work. Her essay, entitled “I Believe Her,” is important for a variety of reasons. Maybe foremost among them is how she all but invalidates defenses of Kavanaugh that are based on the positive character references he’s assembled from former female acquaintances and ex-girlfriends. Flanagan was assaulted as a young woman, and her abuser—a man she says drove her to a suicidal depression similar to what Ford has described to her therapist—was not interested in a romantic relationship. CNN political commenter Symone Sanders, too, confessed that “there is no debate” in her mind as to Kavanaugh’s guilt, in part, because she was the victim of a sexual assault in college. The similarities between what she endured and what Ford says occurred are too hard for her to ignore.

These are harrowing stories, but they also reveal how little any of this has to do with Brett Kavanaugh anymore. For some, this has become a proxy battle in the broader cultural reckoning that began with the #MeToo moment. Quite unlike the many abusive men who were outed by this movement, though, the evidentiary standard being applied to Kavanaugh’s case is remarkably low. His innocence has not been presumed, and a preponderance of evidence has not been marshaled against him. It is not even clear as of this writing that Kavanaugh will be allowed to confront his accuser. At a certain point, honest observers must concede that getting to the truth has not been a defining feature of this process.

Absent other witnesses coming forward—and one would think they would have by now—we’ll never know for sure what happened in that room three-and-a-half decades ago. But the nature of the debate makes clear that it doesn’t much matter. Sexual assault is incredibly common. Far more women than we realized before the #MeToo movement have been victimized by it and almost all women are in fear of being victimized. And, because women making accusations are often subjected to horrific treatment when they come forward, most don’t.

In the wake of #MeToo, the burden has shifted. We’re expected to simply #BelieveWomen making allegations of sexual harassment or worse.

Statistically, that’s almost certainly the right thing to do. While women make false allegations, it’s exceedingly rare. And placing a high burden on legitimate accusers not only doubles down on the harm they suffer but it makes it very likely that the perpetrator will victimize others, probably a lot of others.

At the same time, due process is a core value of our society. Those accused of wrong-doing are entitled to a presumption of innocence. We simply can’t allow careers and reputations to be ruined based on mere allegation. Ironically, that’s especially true in the wake of #MeToo, since the stigma of sexual misconduct has been heightened.

The Kavanaugh case if further complicated by the public-political nature of the nomination fight and the age of the charges.

Kavanaugh’s Republican supporters have strong incentive to get him on the bench quickly and get the controversy out of the national spotlight before the November midterms. His Democratic detractors have the opposite incentives.

The fact that the alleged assault took place so long ago is highly problematic. While it by no means renders Ford’s testimony suspect, given what we know of how women tend to deal with that sort of trauma, it makes investigating the incident much more difficult. Any physical evidence of the alleged crime is long since gone and eyewitness testimony, always suspect, is next to worthless this long after the fact.

Indeed, contra Flanagan and Sanders, our memories of even “flashbulb” events is unreliable. And that’s especially true for extremely stressful events like the one in question here. We constantly reconstruct events in our minds over time and wind up “remembering” the reconstruction.

In many if not most of the #MeToo cases involving famous men, the women made near-simultaneous accusations to friends and colleagues. As far as we can tell from the public record, Ford told some version of the story to her husband decades after her fact and a more detailed account to her therapist only recently, in 2012. That makes it clear she didn’t make up the accusation to derail Kavanaugh’s nomination. But it doesn’t corroborate her story, either. And, for what it’s worth, the men in Ford’s accounting of the story, including one alleged witness, deny it.

Additionally, in almost every case, including relatively mild examples like that of former Senator Al Franken, the initial allegation was followed by several additional women coming forward and saying, well, “Me, too.” One would think the sort of person who would attempt to rape a 15-year-old girl at a party and get away with it would have committed a pattern of heinous behavior since then. It’s wouldn’t seem the sort of thing one would mature out of. Thus far, however, no one else have come forward.

Presuming Kavanaugh doesn’t withdraw his nomination, which would permanently stain his reputation by creating a presumption of guilt, we’re likely to have a farce of a hearing. Both Ford and Kavanaugh’s public images will be forever changed. And we still won’t know what happened at that party when they were teenagers.

FILED UNDER: Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies 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. Eric Florack says:

    James ;

    I’m not fully sure what to believe.

    I’m am.

    You’ve done a fairly good job here going in-depth on both sides of the equation. However there’s one aspect of this that you apparently haven’t considered. The Democrats and their track record on this kind of thing. Consider just these three examples…

    Bork.
    Thomas.
    And now Kavanaugh.

    The tactics employed by the Democrats get (pardon the pun) progressively worse with each non- Democrat nominee.

    And one additional point. If this was all about #metoo, shouldn’t we be seeing the Democrats currently trying to derail Kavanaugh expending similar amounts of sweat and spittle on Keith Ellison? I guess we shouldn’t expect that out of the party of Bill Clinton… Really at the end of the day that’s the point here. All the screaming and carrying are simply being used as a tool to derail anything to the right of Fidel Castro. It is the only logical explanation for the deadly silence that occurs when credible allegations get tossed at any given Democrat.

    5
  2. Forest says:

    What of the benefit to Ford from making the accusation? An incentive to make the allegation, even if it is not true?

    Anita Hill profited enormously from accusing Clarence Thomas of sexual harassment in 1991, transforming her life for the better. She had been teaching at an obscure school, but after accusing Thomas of harassment, she became a secular saint to progressives. She received hundreds of thousands of dollars in speaking fees, and received a well-paid, tenured sinecure at a prestigious institution. She was also lionized by the press, and was falsely depicted as a conservative, even though her speeches and writings by 1990 leaned liberal. Hill is very biased in favor of liberal harassers and against accused conservatives. She is constantly cited by the press in arguing that GOP figures are guilty of sexual harassment — she has said that Kavanaugh should have to prove himself innocent — even as she defended Bill Clinton against Juanita Broadrick’s rape claim, and Paula Jones’ sexual harassment claim, which Bill Clinton settled for $850,000. Hill claims that liberals are entitled to the benefit of doubt, and conservatives to a presumption of guilt. But Clinton was credibly accused of harassment and assault, as the Paula Jones settlement illustrated.

    3
  3. John430 says:

    As Joyner says: “…our memories of even “flashbulb” events is unreliable.” Well said, because even a mild “pass” at a girl by a 17 year old boy can become something larger. All 17 year old boys are jerks at one time or another during their teen years. Its required.

    2
  4. Eric Florack says:

    @Forest: what’s the motivation? Political, of course.

    2
  5. CSK says:

    OT, but this morning Trump gave a deranged interview to http://www.thehill.com in which he took a chainsaw to Jeff Sessions, saying that he doesn’t have an attorney general, and also that he wished he’d fired Comey after he (Trump) won the primaries, or the convention.

    Apparently he fails to understand that he didn’t have the power to do that.

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  6. MarkedMan says:

    I think there are three factors in this:
    1) If he was an attempted rapist, then I agree with you in that it disqualifies him from a seat on the Supreme Court.
    2) If something ugly happened at the party, but he does not recall it that way and he showed signs of remorse that he had caused her distress, then I am inclined to say that absent any other incidents, I would not let it be a deciding factor if I had to vote on his appointment. But he has ruled this out as a possibility. Others continue to make this case for him, but he has ruled it out. He has said nothing happened at any party, ever, and that Ford is lying. Or crazy. So this shouldn’t even be brought up anymore by either side. Which brings us to #3
    3) Kavanaugh has explicitly made the issue into “which one of us are you going to believe?”. And that can be investigated. He has staked everything on proving that he is more credible than her. So we may not be able to gain much by investigating this one incident in and of itself, but we can certainly find out more about their respective veracity.

    Does she have a history of making unprovable claims? Did she ever tell anyone this story before the Supreme Court nomination came up? Has she in any other way demonstrated significant dishonesty?

    Does he have a history of drunken and reckless behavior in high school? Was he ever involved with harrassment or assault on women? Does he associate with or make excuses for people who did?

    I could go on, but the important thing is that by making it explicitly about his veracity and honor over hers, Kavanaugh has opened himself up into an investigation beyond what can be proven about those five minutes so many years ago.

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  7. JKB says:

    “…and attempting to rip her bathing suit off …”

    You really need to inoculate yourself against the sensationalist framing that pervades most print and broadcast media these days. That detail was not in Ford’s original letter but comes from sensationalist phrasing in the WaPo, either via an interview or the “journalists” desired framing. But the yellow journalism of the WaPo did include only say pull off her bathing suit that was beneath her other clothing. It’s clever phrasing but obvious yellow journalism, i.e., sensationalism, when more normal phrasing would be he attempted to pull off her clothes including the one-piece bathing suit she wore.

    The yellow journalism phrasing used by the Washington Post was

    While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it.

    3
  8. Eric Florack says:

    It’s amazing what you can find when you look for it.

    The silence off this one ought to be deafening… Which furthers my point

    1
  9. Mister Bluster says:

    @John430:..All 17 year old boys are jerks at one time or another during their teen years. Its required.

    Speak for yourself cretin.

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  10. James Pearce says:

    At the same time, due process is a core value of our society.

    Which is why it’s so frustrating that our society’s partisans –left and right– don’t give a shit about due process.

    5
  11. Gustopher says:

    I have no idea whether the version of events Ms. Ford is recounting has anything to do with what happened at a party somewhere in Maryland in 1982.

    I do know that a bunch of ancient Senators with distinct political agendas questioning her for ten minutes each or so, trying to create a “gotcha” moment is not going to find any truth. And I also know that she is a reluctant witness.

    I also know that we don’t want attempted rapists on the Supreme Court.

    Trained investigators, i.e., the FBI, are going to do a better job of turning up corroborating evidence, or exploring weak corroborating evidence, than the Senate is. And the FBI is routinely tasked with carrying out in depth background checks, including investigating serious allegations, for presidential appointees.

    There may be people who are unwilling to be named publicly, like Ms. Ford herself was, who would be more willing to talk to investigators. There is a backlash against those who speak out, as we are seeing now.

    Ms. Ford has not been treated kindly, and I have heard reports that she has been forced to leave her home (I was dozing off, and don’t remember details like whether this was a reputable source, or whether it was because of threats or just a desire to be left alone).

    The investigation may turn up nothing. It may turn up that Ms. Ford is insane.

    The allegations are serious, and plausible. They should be investigated before proceeding. It’s a lifetime appointment, we should take our time to be deliberate about it.

    If there is a grave concern about the Supreme Court starting their term down a member, they can delay the term for a few weeks.

    17
  12. An Interested Party says:

    Some of the comments above are a prime example of why there is the Me Too Movement…for far too long, far too many men have dismissed and enabled the sexual harassment (or worse) of women…is it any wonder that Republicans are facing a huge gender gap for the November elections? But go ahead, fellas, keep dismissing all of this, see what it does for your political fortunes…

    15
  13. MarkedMan says:

    @JKB:

    when more normal phrasing would be he attempted to pull off her clothes including the one-piece bathing suit she wore

    I’m not sure I see the distinction you are trying to make here. A 17 year old drunken lout tried to forcibly strip a 15 year old girl’s clothes off, with another 17 year old drunken lout watching. Do you honestly think the way you describe it is less horrifying than the way the Post describes it? I don’t see it. FWIW, I though the Post was trying to anticipate the question of “why couldn’t this drunken lout get this puny girl’s clothes off?”. Answer: “She was wearing a one piece bathing suit under her clothes.” (Thank god)

    14
  14. Todd says:

    If we were just talking about something that may have happened 35 years ago, it would be one thing. But to me anyway, the fact that Kavanaugh came out and called Dr. Blasey Ford a liar presents a bigger problem for him if she continues to appear at all credible.

    Which brings us to the question of due process …

    Yes, in a criminal proceeding, we should all be afforded the presumption of innocence (although for too many in our society that is not the case). But this isn’t a criminal case. It’s about a life-time appointment to the Supreme Court. If anything the standard (and the burden) should be flipped. If someone wants to be one of the 9 most powerful people in the country, their character and background should be above reproach. There were already suspicions that Judge Kavanaugh may have been less than truthful in some of his earlier testimony during his confirmation hearings. If there’s a reasonable belief that he may also be lying now too, that alone should be enough to disqualify him.

    32
  15. Franklin says:

    @Eric Florack:

    The tactics employed by the Democrats get (pardon the pun) progressively worse with each non- Democrat nominee.

    Again, anybody who supported the blockade of Garland doesn’t get to complain when somebody else plays politics. Go cry somewhere else.

    29
  16. Liberal Capitalist says:

    As a sidebar, I love Wonkette’s take on it:

    https://www.wonkette.com/christine-blasey-ford-not-as-dumb-as-yall-republicans-wish-she-was

    Of course, I do like Wonkette, so there may be a personal bias in sharing this. It’s the best “dick joke warblog/mommyblog about recipes and sex that talks about politics sometimes” website.

    7
  17. grumpy realist says:

    If anyone wants to know why women “don’t tell people” about sexual abuse, just take a look at some of the comments above.

    27
  18. grumpy realist says:

    Totally OT, but LA has voted to ban the sale of fur within the city limits.

    If they tried that here in Chicago their next location would be the middle of the large body of water right next to us. Actually, we’d probably wait until we get another sub-zero day, chop a hole in the ice, then dump them in. -14 degrees Fahrenheit, bitchez!

    1
  19. Not the IT Dept. says:

    McConnell and crew need to do a better job at vetting their judicial nominees. Even without the Ford testimony, I’d have a very hard time accepting a guy with a drinking problem on the Supreme Court. We’ve probably had them in the past, I realize that, but surely in a nation of 330 million people they can find better candidates than this.

    7
  20. Monala says:

    @Eric Florack: Cory Booker groped a girl at 15, and by the time he was in college, realized how wrong his behavior was, as well as many of the sexist concepts among young men that encourage such behavior, and vowed to not repeat it. This is shocking, why, exactly?

    16
  21. MBunge says:

    So…she accuses him of sexual assault and people are upset when he says “it didn’t happen” because that’s implicitly calling her a liar? That’s insane and when supposedly sensibly people mouth crazy things because they’re afraid to stand up say “That’s crazy,” it never ends well.

    Mike

    3
  22. James Pearce says:

    Some of the comments above are a prime example of why there is the Me Too Movement

    If anyone wants to know why women “don’t tell people” about sexual abuse, just take a look at some of the comments above.

    Bah. We have a #metoo movement because powerful men sexually abusing women suddenly got intolerable after Trump’s election, and we continue to have one because allegations of sexual abuse is pretty much the only thing that lights up the eyes of the progressive left.

    1
  23. CSK says:

    @TM01:

    What in hell are you talking about?

    8
  24. KM says:

    Jesus, look at all the trolls out in force. Is that what it takes to drag y’all out from under the rocks, point out that this Administration has a serious problem with gropers and rapists?

    Seriously, there’s dozens of other Republican judges you can nominate that aren’t nearly as problematic as this asshat. So why is it in this day and age, you will accept a candidate with this kind of taint when you have choices? Are you telling me there’s not a single conservative out there that isn’t skeevy, grabbing p*ssies, stalking young girls or trying to have their way with them that you can’t nominate?

    20
  25. MarkedMan says:

    @James Pearce: I see. So your arguments are:
    1) I am a liberal who detests Donald Trump
    2) We are all wasting our time pursuing this whole “Kavanaugh accused of attempting to rape someone” thing.
    3) Bitchez be lyin’

    16
  26. Just nutha ignint cracker says:

    @Eric Florack: Indeed, Sen. Booker admitting that he groped a high school acquaintance certainly proves your point about lefties being hypocrites. I’ve been put in my place, fur shur! And talking about it back in his college days before there was political hay to make. What a hypocrite!

    I really liked your blogs back in the day about being on the road as a truck driver. You had intelligent and insightful things to say back then, even when I disagreed with you.

    9
  27. Just nutha ignint cracker says:

    @Gustopher:

    Trained investigators, i.e., the FBI, are going to do a better job of turning up corroborating evidence, or exploring weak corroborating evidence, than the Senate is. And the FBI is routinely tasked with carrying out in depth background checks, including investigating serious allegations, for presidential appointees.

    Well, yeah. But isn’t that the point of keeping the FBI out of this. The GOP has a railroad to run; they don’t have time for all this investigation stuff.

    And those of you who are saying Boxer should have raised this question in July should stop kidding yourselves. While I agree that she should have, it would not have changed the proposed solution. Grassley would have said “well let’s get ‘er in here so we can get ‘er done” just the same as now. Or, he simply would have said “not germane to the issues here” and moved on.

    8
  28. MarkedMan says:

    I think it is worth re-linking to this twitter feed which shows some of the things that Mark Judge, the alleged second guy in the room and still Kavanaugh’s friend, recently took down from his Facebook and his Twitter feed. Make sure you scroll down. This is a 55 year old man. It’s not a good association that this is the guy vouching for Kavanaugh’s unsullied character. The skeevy perv pictures he took surreptitiously on the metro of buxom young women minding their own business are especially creepy.

    9
  29. JKB says:

    @MarkedMan:

    The Post was doing yellow journalism, i.e., writing in a sensationalism, melodramatic, emotionalism manner. It is the way the staid publications sell papers these days, but it is still sensationalist journalism, which is the definition of yellow journalism.

    2
  30. Andre Kenji de Sousa says:

    No SCOTUS Justice has ever been removed from office because of impeachment. There was one Justice appointed by George Washington that was impeached but not removed from office and Abe Fortas that was forced to resign, but that’s it.

    There is no space for doubt here. Any Supreme Court Justice should have impeccable credentials. That’s a job interview, not a criminal trial.

    8
  31. Just nutha ignint cracker says:

    “their character and background should be above reproach.”

    Since the day’s of Ike reminiscence that the biggest mistake of his administration was nominating Earl Warren–and probably even before–the goal has never been appointing people whose “character and background” are above reproach (remember, Warren was part of a backroom deal that got Eisenhower the nom in the first place). That was certainly a desirable quality and we certainly as a nation looked for such people in the past, but for as long as I’ve been around, it seems that SCOTUS is simply another part of the game that is American politics. That the game has turned uglier over the past 2 or 3 decades is truly sad, but that’s what comes of electing the people we choose and who yearn for the power.

    4
  32. James Pearce says:

    @MarkedMan: When opposition to Kavanaugh was rooted in what he may or may not rule viz-a-viz Roe, he was sailing to confirmation, so good thing he was gross when he was a kid, huh?

    Forget principle. Just go superficial. There’s never any downside.

    2
  33. Leonard says:

    What’s the FBI supposed to investigate? A party that took place somewhere unspecified during the early 1980’s? And there’s no federal crime.

    2
  34. Just nutha ignint cracker says:

    @TM01: Okay. Fine by me.

    1
  35. Thomas Hilton says:

    Quite unlike the many abusive men who were outed by this movement, though, the evidentiary standard being applied to Kavanaugh’s case is remarkably low.

    Rothman has it backwards here: for a lifetime appointment to the Supreme Court, it should be up to the nominee to demonstrate affirmatively that they are fit for the post–and the threshold there should be extremely high. Doubts in this case have to be resolved against the nominee.

    16
  36. Todd says:

    @Leonard:

    What’s the FBI supposed to investigate? A party that took place somewhere unspecified during the early 1980’s? And there’s no federal crime.

    They are asking for the background investigation to be reopened, and that is something the FBI is tasked with. This is just supposition on my part, but I’d be willing to bet that part of the push against reopening the investigation is that Judge Kavanaugh was likely asked at least a few questions in his initial interview that could possibly be contradicted if the investigation is reopened … and as we are all aware, lying to the FBI is a federal crime.

    19
  37. Leonard says:

    @Todd: “at least a few questions in his initial interview that could possibly be contradicted if the investigation is reopened”

    Such as? Did they ask him if he pawed a girl in the 1980’s? And if the did and he said no, they don’t have evidenc that he was lying. The FBI has done six background checks on him so far.

  38. Gustopher says:

    @Leonard: clearly, you make make a terrible investigator.

    The FBI does background checks for presidential nominations all the time, and is skilled at sniffing around scurrilous accusations to see if they not so scurrilous.

    9
  39. Todd says:

    @Leonard:

    Such as?

    I’m going to assume you’ve never been through a background investigation. There are an awful lot of open ended yes or no questions about past conduct, both on the questionnaire and in the actual interviews. While it is very unlikely anybody has ever asked him specific questions about sexual assault at a party in high school, it is just as likely that he was asked about his conduct during that period of time … and in a background investigation, omission is nearly as bad as outright lying.

    7
  40. KM says:

    @James Pearce”

    good thing he was gross when he was a kid, huh?

    “Gross”? He’s accused of molestation at best and attempted rape at worst and you go with “gross”?!

    Even if you thought it was a partisan attempt at character assassination or flat out lie, that is an incredibly callous choice of words to frame a horrible action as something “icky” instead of what it is. The biased Senators who are dismissing her as utterly false didn’t even go that far. What’s that say about you that you did?

    12
  41. James Pearce says:

    @KM:

    He’s accused of molestation at best and attempted rape at worst and you go with “gross”?!

    Two questions:

    Are those behaviors not gross?

    Must I be hyperbolic?

    2
  42. Mark Ivey says:

    “Who cares if he grabbed some Democrat harlot by the pu**y back in the 1980s? Kavanaugh will vote to stop baby killing AND protect Trump from Muller, that’s enough for us.”

    –MAGA voters

    6
  43. Eric Florack says:

    @Franklin: the problem with your (and I use the word advisedly,) analysis is that there’s this thing called an election which you have to win if you want to choose US Supreme Court nominees.

    The Democrats lost. Your argument has no legs to stand on

    2
  44. Eric Florack says:

    @Just nutha ignint cracker: nothing’s changed in that regard.

    1
  45. Eric Florack says:

    Frankly, I can’t think of any reason for us to trust anything the Democrats are saying about any of this. For that matter with the display they put on in this hearing and in the Clarence Thomas hearing, and in the Robert Bork hearing, I’m down to the point now where I think Chuck Grassley, at the next USSC opening, ought to think seriously about putting a nominee forward without a hearing on two or three days notice, since there is nothing in the Constitution, (you remember …the Constitution? ) that demands anything more than that.

    Sadly I doubt he has the testicular Mass.

    1
  46. Eric Florack says:

    Frankly, I can’t think of any reason for us to trust anything the Democrats are saying about any of this. For that matter with the display they put on in this hearing and in the Clarence Thomas hearing, and in the Robert Bork hearing, I’m down to the point now where I think Chuck Grassley, at the next USSC opening, ought to think seriously about putting a nominee forward without a hearing on two or three days notice, since there is nothing in the Constitution, (you remember …the Constitution? ) that demands anything more than that.

    Sadly I doubt he has the testicular Mass.

    @JKB:
    Fake news, in short. But notice how it gets gobbled up by the Trump derangement syndrome sufferers in the room

    1
  47. Eric Florack says:

    @KM: well, you could always call it a bimbo eruption. You could always suggest amazement at what you can find by dragging a $20 bill through a trailer park.

    2
  48. Eric Florack says:

    @Just nutha ignint cracker: are the Democrats suggesting that pie office should not be attainable for those guilty of such Acts, or are they not?

    Double standard

    2
  49. Just nutha ignint cracker says:

    @Eric Florack: I know nothing at all about pie offices. I’ve never even heard of them, but I do like pie–peach or berry especially.

    Having no experience of seeing a Democratic President nominating a known molester for the SCOTUS, I can’t find the double standard here. If, as I assume, you are going for Clinton–a low hanging fruit at best–the office of President has often had holders of questionable sexual mores from both parties, but as for me, I would have liked the Democratic voters to select someone not named Clinton all both times they did just as I would have preferred the Republican voters not to select a recovering alcoholic and cokehead in the intervening elections. Alas, I did not get my wish.

    And again, I’m not seeing any particular double standard. Both sides really do make ill-conceived choices at times.

    4
  50. An Interested Party says:

    Must I be hyperbolic?

    No, but treating this seriously would be nice, rather than seemingly dismissing it out of hand…

    …and in the Robert Bork hearing…

    Trolls really need to stop whining about Bork…at least he actually got a hearing and a vote, a lot more than Merrick Garland got…

    3
  51. Eric Florack says:

    Again, if you want to appoint Supreme Court Justices, you have to win the elections.

    2
  52. Eric Florack says:

    @Just nutha ignint cracker: how about a known rapist being president?

    Better put some ice on that

    1
  53. Leonard says:

    @Todd: I’m very familiar with the process. The DOJ has already said that there’s nothing for the FBI to investigate.

    1
  54. James Pearce says:

    @An Interested Party:

    No, but treating this seriously would be nice, rather than seemingly dismissing it out of hand…

    I called Kavanaugh’s behavior gross. What more do you want?

    You want me to pretend there’s some new principle being formed here? Nah. It’s just partisan politics as usual. I can’t get too “serious” about that.

    I’m unaffiliated.

    2
  55. EddieinCA says:

    Merrick.
    Garland.

    4
  56. Liberal Capitalist says:

    You know, rather than a “She Said, He Said” type of thing… It would be great if someone could look at these allegations and look for the actual truth. Interview others, look for data, corroborating information.

    An investigation, if you will, done by an organization that has extensive experience in investigations. Not a generalist organization, but specific in investigations… a special bureau, if you will.

    Of course, since this potentially affects all of us Americans with future Supreme Court decisions we just can’t have a local investigation, or one that is limited to state resources… no, it would have to be a federal-in-scope organization. Possibly organized under the Attorney General of the United States.

    Too bad we don’t have a bureau of investigators that could deal with concerns that affected us federally.

    Maybe someday.

    Today, I guess we will just have to guess, and base our opinions on bias acquired from websites and the random opinions of others.

    Sigh.

    3
  57. Franklin says:

    @Eric Florack:

    the problem with your (and I use the word advisedly,) analysis is that there’s this thing called an election which you have to win if you want to choose US Supreme Court nominees.

    Exactly. The people voted for Barack Hussein Obama to be President for the period of 2008-2016. During that period, there were three openings on the Supreme Court. Despite being elected President, he was prevented from filling one of those openings, purely due to partisan politics.

    Personally I think it would have been most fair if Feinstein brought her information forward earlier, just like I think McConnell should have held hearings for a Supreme Court nominee. That is certainly what his job entails. Compare that with Feinstein whose job description doesn’t include anything about passing on anonymous letters, so she actually went above and beyond. I’ll await your further “analysis”.

    4
  58. Guarneri says:

    @Eric Florack:

    Exactly.

  59. Scott O says:

    @Eric Florack: In my opinion the term “Trump derangement syndrome” applies to folks like you.

    2
  60. Eric Florack says:

    @Franklin: let’s remember that Obama also said, elections have consequences. The election was obviously going away from the Democrats. The voice of the people had already been heard rather loudly.

    The Democrats in their push to the left would have had us ignore that.

    the reason Feinstein didn’t bring it earlier as I suggested is because she wasn’t buying the story, either. She knew it would fall apart if it was given enough time.

    The sexual innuendo is a Hackneyed play of the Democrats when it comes to Supreme Court nominees, particularly originalists. Precisely why I say that when Ruth Buzzi Ginsburg finally kicks, Grassley Rams the appointment through on three days notice with no hearing.

    it’ll be worth the admission price just to watch the liberal heads explode. Welcome to the world you’ve made, Democrats.

    1
  61. Eric Florack says:

    And speaking of Ginsburg, I noticed that nobody has mentioned the idea that even she has voiced her disapproval in the way the Democrats are acting over this business. Given her lack of comments in just about every other matter, you got to figure that she’s coming out very strongly against the Democrats on the way they’re handling this process.

    1
  62. Eric Florack says:

    @Scott O: yeah that makes a lot of sense.

    okay, I have to be fair about this. You obviously don’t know the Trump was never my guy.

    Here’s a quick reminder.

    http://bitsblog.theconservativereader.com/2016/07/trump-supporters-its-time-to-start-looking-in-the-mirror/

    1
  63. Liberal Capitalist says:

    @Eric Florack:

    the reason Feinstein didn’t bring it earlier as I suggested is because she wasn’t buying the story, either. She knew it would fall apart if it was given enough time.

    Please site quote where Feinstein states this, as it assumes facts not in evidence.

    What she ACTUALLY said was:

    “I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court,” Feinstein said. “That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.”

    And the reason when she said it was that it was at the hearing to review the potential appointee, which would be the time to do so.

    1
  64. Leonard says:

    @MarkedMan: Let’s say you groped a female who was wearing a winter coat. Maybe you even tried to remove her coat. If I wanted to make it sound as bad as possible, I’d say that you tried to remove her undergarments and the rest of her clothing. By saying it that way, I mke it sound like it went a lot farther than it actually did.

  65. An Interested Party says:

    I called Kavanaugh’s behavior gross. What more do you want?

    To treat it as a serious matter rather than some partisan game…perhaps that is too much to ask of you…

    let’s remember that Obama also said, elections have consequences.

    Indeed..so when the Dems retake the presidency and Congress, they can expand the number of seats on the SCOTUS…problem solved…

  66. george says:

    Actually I find it pretty easy to know what I believe:

    I believe the vote on Kavanaugh should be suspended until its been properly investigated. If there is proof Kavanaugh did it he should be put in jail for perjury. If not they can go ahead and vote on it. Wanting to rush it through without investigation is so clearly wrong I can’t believe anyone is seriously suggesting it. Spend a month seriously investigating, see if there’s either corroboration of the accusation, or if other accusers come forth (as in Cosby, Weinstein, Crystal, Moore). If not then they’ve only lost a month, if so then they’ve saved themselves and the country from putting him on the supreme court.

    My guess is that Ford has evidence, or they know of other accusers, otherwise why would they rush it?

    2
  67. george says:

    @An Interested Party:

    Indeed..so when the Dems retake the presidency and Congress, they can expand the number of seats on the SCOTUS…problem solved…

    My guess is that’s exactly what will happen – basically the GOP started that process with Garland. And then when the GOP inevitably retakes the presidency and Congress they’ll in turn expand the number of seats. My prediction is that within a couple of decades supreme court seats will become a standard reward to party faithful, like Senate seats in Canada (Canada’s senate is appointed).

    Or maybe we’ll short-circuit all that and have an elected SCOTUS, with limited duration (say 12 years).

  68. MarkedMan says:

    @Leonard: I’m not sure why you think you are helping yourself here.

    1
  69. Matt says:

    @Just nutha ignint cracker:

    the office of President has often had holders of questionable sexual mores from both parties,

    When I last dug into that at least 50% of all US Presidents had some kind of affair while in office.