My Case Against Brett Kavanaugh

While I was originally content to let Brett Kavanaugh sail through to confirmation, I now feel compelled to oppose his nomination to be a Supreme Court Justice.

Benjamin Wittes of Lawfare explains in a post at The Atlantic why he opposes Brett Kavanaugh’s nomination to the Supreme Court and his reasons are fairly close to my own:

A few days before the hearing, I detailed on this site the advice I would give to Kavanaugh if he asked me. He should, I argued, withdraw from consideration for elevation unless able to defend himself to a high degree of factual certainty without attacking Ford. He should remain a nominee, I argued, only if his defense would be sufficiently convincing that it would meet what we might term the “no asterisks” standard—that is, that it would plausibly convince even people who vociferously disagree with his jurisprudential views that he could serve credibly as a justice. His defense needed to make it possible for a reasonable pro-choice woman to find it a legitimate and acceptable prospect, if not an attractive or appealing one, that he might sit on a case reconsidering Roe v. Wade.

Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.’

Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a “good judge [as] an umpire—a neutral and impartial arbiter who favors no litigant or policy.” That Brett Kavanaugh reminded us that “the Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.”

A very different Brett Kavanaugh showed up to Thursday’s hearing. This one accused the Democratic members of the committee of a “grotesque and coordinated character assassination,” saying that they had “replaced advice and consent with search and destroy.” After rightly criticizing “the behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,” this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in.

(…)

As Charlie Sykes, a thoughtful conservative commentator sympathetic to Kavanaugh, put it on The Weekly Standard’s podcast Friday, “Even if you support Brett Kavanaugh … that was breathtaking as an abandonment of any pretense of having a judicial temperament.” Sykes went on: “It’s possible, I think, to have been angry, emotional, and passionate without crossing the lines that he crossed—assuming that there are any lines anymore.”

Kavanaugh blew across lines that I believe a justice still needs to hold.

The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for the Washington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations and post-September 11 legal matte,rs. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.

My cognitive dissonance at Kavanaugh’s performance Thursday is not important. What is important is the dissonance between the Kavanaugh of Thursday’s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would after that performance consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence? Quite apart from the merits of Ford’s allegations against him, Kavanaugh’s display on Thursday—if I were a senator voting on confirmation—would preclude my support.

Wittes’s reasons for opposing Kavanaugh come fairly close to my own.

Prior to the time when we started hearing about the allegations regarding Judge Kavanaugh’s behavior at Georgetown Prep and Yale and, of course, the serious allegations that he had engaged in activity that clearly seems to meet the definition of sexual assault that was in place both in the early 1980s and today, I was essentially willing to let Kavanaugh slide into confirmation. Although I didn’t fully lay them out here at OTB, I did have concerns about Kavanaugh’s judicial record in specific areas such as the 4th Amendment, the PATRIOT Act, the right to privacy, specifically including the precedents set forth in Roe v. Wade and Planned Parenthood v. Casey, and the limitations on Presidential powers. Brittany Hunter touches on many of these concerns in an article posted at the blog of the Foundation for Economic Education, and I largely agree with the conclusions she reaches regarding the problems with the way Judge Kavanaugh has approached these issues in the past, and how he might approach them in the future should he become a Supreme Court Justice. Additionally, his previous writings on issues such as whether or not a sitting President can be indicted or even subpoenaed are concerning. However, as problematic as they are. Kavanaugh’s views on these subject are, for better or worse, fairly conventional conservative judicial positions that we would have gotten from any of the other names on President Trump’s short list. Indeed, there were some who suggested when he was named that, from an ideological point of view, Kavanaugh may be among the best that can be hoped for out of what we’re likely to get from President Trump and, if you’re on the liberal side of the aisle certainly, better than people further to the right such as Judges William Pryor and Amy Comey Barrett.

After Kavanaugh had testified before the Senate Judiciary Committee for three days, which I covered here, here and here, it seemed fairly clear that other than Kavanaugh’s fairly standard conservative positions there really wasn’t a reason for rejecting his nomination and that he was likely to sail through to confirmation. That, of course, came before the allegations against Kavanaugh started becoming public and eventually led us to the hearing that took place last Thursday. The first to come forward, of course, was Dr. Christine Blasey Ford, who alleged that a 17-year-old Kavanaugh and his friend Mark Judge had attempted to rape her at a party in the summer of 1982. Blasey Ford’s allegations were quickly followed by similar allegations by Kavanaugh’s Yale classmate Debbie Ramirez and by Julie Swetnick, a woman who says she traveled in the same social circles as Brett Kavanaugh and witnessed drunkenness and sexually aggressive behavior on the part of Kavanaugh and other men. Of all three, though, it was Blasey Ford’s allegations that received the most attention and which are simultaneously the most serious and the most credible when it comes to judging the suitability of Brett Kavanaugh for elevation to a lifetime position on the highest court in the land.

It was, of course, the charges by Dr. Blasey Ford that brought us to the hearing that took place last Thursday, and it was ultimately that hearing that led me the position I’m setting forth here. As I said in my post the morning after the hearing, I found Dr. Blasey Ford’s testimony, and her responses to questions from the Republican’s hired gun Rachel Mitchell, to be largely credible. There were gaps in that testimony, of course, such as the fact that she could not recall how she got to the party or how she got home and the lack of any contemporaneous corroborating evidence or testimony from others who she said were at the gathering where her assault took place. There were also some gaps in her memory regarding more recent events indirectly related to her charges against Judge Kavanaugh such as the negotiations regarding her testimony before the committee and the polygraph that she took prior to going public, but for the most part I found these gaps to be inconsequential and her testimony regarding what happened to her and the fact that she was sure it was Judge Kavanaugh who had assaulted her seemed largely unassailable to me.

Judge Kavanaugh, on the other hand, did himself no favors in my eyes when he sat down at the witness table later Thursday afternoon, and it’s largely based on his testimony on that day that it became clear to me that he should not be elevated to the Supreme Court. Kavanaugh began with a 45-minute opening statement in which, in a voice that was often just a few decibels below a yell, he decried the charges against him, forcefully denying the accusations and turning his ire on Democrats and “the left” for what he contended was a conspiracy to deny him a Supreme Court seat. At one point he claimed that the charges against him were part of a vendetta launched by supporters of former Secretary of State Hillary Clinton as “revenge” for the outcome of the election. At the time, many observers suggested that Kavanaugh was playing to an audience of one, Donald Trump, in response to reports that the President was not pleased with what he saw as a rather muted Kavanaugh during an interview with Fox News earlier last week.  It was also the kind of partisan attack that seemed more appropriate for conservative talk radio or Fox News Channel than a man who has spent the last 12 years as a Judge on the most important Circuit Court of Appeals in the country and who is seeking elevation to the Supreme Court, where he could serve for the next thirty years. As Wittes notes, and as others such as James Joyner (see here and here) have also argued, Kavanaugh’s rhetoric and demeanor on Thursday made it apparent that he does not belong on the Court and that his tenure there, if he is confirmed, will forever be marked by the impressions that his decisions are based not on a sober analysis of the law but on partisanship.

As I said at the end of the day last Thursday, my opinion of Judge Kavanaugh after the hearing was over, and most especially after his Trumpidian opening statement was diminished from where it had been when his initial confirmation hearing ended earlier this month. The sober-minded Judge who appeared then was gone and he was replaced by someone who seemed more appropriate for a political rally, or a stint in talk radio or on Fox News Channel. While this might have played well with the right wing and, most certainly did with the President, it reinforced the impression of him that many critics had of a self-entitled jerk who behaved in much the same way while he was in High School and college that many of his peers did, including a stint of heavy drinking that very well may have led him to do things that he might not clearly remember today. While I found his denials during his interview with Fox News Channel at least somewhat believable, the extent to which he seemingly switched personalities before the committee and implied that all of these charges were part of some left-wing conspiracy that involved “revenge seeking” Clinton supporters made the rest of what he said substantially less believable, made him less credible as a witness, and made it clear that it would be inappropriate to elevate him to the Supreme Court. In other words, his testimony left me with the impression that, whether because of the way this confirmation has proceeded or because it is how he has been all along, Kavanaugh is likely to be a far more partisan Justice than he portrayed himself as during the three days of confirmation hearings early last month.

In addition to the inappropriate partisanship, the charges against Judge Kavanaugh, especially those made by Dr. Blasey Ford raise serious concerns about his fitness to be a Supreme Court Justice. Were this a court of law and I was sitting on a jury where Kavanaugh was facing charges related to the attack that Dr. Blasey Ford related in her testimony, I would feel obligated to acquit him or any Defendant facing the same situation. This is because, notwithstanding Blasey Ford’s testimony, there simply isn’t sufficient evidence to justify convicting him or any Defendant beyond a reasonable doubt. These proceedings, though, are not a criminal trial, and we are not in a court of law. This is at the same time both a political process playing itself out in the court of public opinion and a high-stakes job interview for a lifetime position on the most important court in the nation. If confirmed, Judge Kavanaugh is likely to serve for the majority of the next three decades during which he will be just one vote out of nine on a whole host of issues that will impact Americans in all aspects of their lives. Additionally, one cannot discount the fact that Kavanaugh would be taking the place of a Justice who has played a pivotal role in some of the most important cases of the past thirty years on a wide range of issues, not the least of them including a woman’s right to an abortion, the rights of LGBT Americans, and the First Amendment. Because of that, it is essential that whoever is confirmed for this position have the intellect, experience, and temperament that is called for in a Supreme Court Justice. While I have no doubt that Kavanaugh possesses both the intellect and the experience needed for a Supreme Court Justice I cannot say the same thing about his temperament or his recognition of the duty of a Justice to remain as apolitical as possible. This partisanship, taken together with the fact that I have serious questions about Kavanaugh’s judicial record and his views on some of the most important Constitutional issues the Supreme Court will be dealing with in the future and the outstanding questions that I have regarding the charges that have been made against him and what they say about Kavanaugh’s fitness to be a Supreme Court Justice, I have no choice but to oppose his nomination and to urge those Senators who remain undecided about him to vote against him

Update: A group consisting of more than 650 law professors has signed an Op-Ed opposing Kavanaugh for much the same reasons as those I expressed:

Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”
We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.

All of this is unlikely to make a difference with a Republican Senate committed to confirming this man, but there comes a time when taking a stand is necessary. This is one of those times.

FILED UNDER: Congress, Law and the Courts, Supreme Court, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. grumpy realist says:

    Bravo, Doug. You have coalesced all the skepticism and hesitations I have over putting Kavenaugh on the Supreme Court.

    Whether he realizes it or not, he comes off as a partisan, over-privileged hack.

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  2. Jake says:

    She lied about a fear of flying, lied about renovations to her house being driven by the memory of the attack starting 2012, quite likely lied about knowing she could testify in CA (otherwise her attorneys should be disbarred), does not know how she go to or back from the party and all four witnesses that she named deny her story completely.

    She is not a licensed psychologist and thus cannot call herself a “psychology” doctor – Stanford and the local JuCo had to revamp her work webpages.

    She denied having knowledge of polygraph tests while having apparently coached people on how to pass them!

    But we need to believe her because she is a woman and women never lie. Well we have apparently discovered the world’s very first female liar. Amazing. Someone is going to have to write this up as an amazing psychological phenomenon!

    Oh, and her daddy works for the CIA at a black ops bank…..

    So let us start the perjury charges already.

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  3. MBunge says:

    What if Dr. Ford was accusing Brett Kavanaugh of killing a hobo instead of groping her at a party? Everything else is the same. She can’t say where or when it happened. She has no evidence to support her claim. She says she never spoke about it with anyone for 30 years. She and her lawyers played the same games with the Judiciary Committee. Same apparent conviction and sincerity when she testified. Everything else is the same, except instead of alleging a teenage Kavanaugh sexually assaulted her, Dr. Ford says that she saw a teenage Kavanaugh kill a hobo.

    Would you believe that?

    And by the way, what’s the policy around here if some woman accuses Doug Mataconis of sexual assault? How much evidence would she need to get Mataconis suspended or fired?

    Mike

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  4. reid says:

    He came unglued in such an ugly fashion, as someone would if there were large kernels of truth to the accusations. The fact that he wasn’t surprised on-camera with this and had time to get his composure but failed to just makes it all the more likely. Sorry, Brett, I like beer too, but it’s a very high bar you failed to meet.

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  5. the Q says:

    The only question is if the GOP believes that perjury is just for Democrats (Bill C.) to be charged with and not those running for the Supreme Court.

    To me, its not the sex charges, its the lying under oath about putative teenage hijinks which requires his rejection. If he’s lying about kegger parties, what else is being hidden?

    And there is no doubt that he is adamant about concealing this period of heavy drinking by sloughing it off as “common high school/college partying that everyone does”.

    The FBI “investigation” will be a farce. Collins and Murkowski will vote yes citing the sham FBI probe as cover and hopefully, without the shrew Hillary to drive away female votes, the Dems will destroy the wingnut party in November.

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  6. Jc says:

    100% Agree. Accusations were just accusations, everyone knew this – all he had to do was give testimony symbolic of that of a person who is fit to be a judge on the highest court in the land. In hindsight, that was not hard to do, yet he screwed up and went off the rails. If he does not get confirmed, he really only has himself to blame – Had he handled it better he likely would have already been confirmed. If you can’t own up to who you were (all the drinking, not a big deal IMO, or most everyone else’s as well) it says a lot about who you are. He couldn’t even do that and lied about it. Kinda sad.

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  7. Daryl and his brother Darryl says:

    @MBunge:

    What if Dr. Ford was accusing Brett Kavanaugh of killing a hobo instead of groping her at a party?

    Wait…Kavanaugh was into threesomes (the Devil’s Triangle) with his buddy, Judge, and a Hobo? Did you mean to type, Homo? I’m confused….

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  8. the Q says:

    Jake, weren’t you on the OJ jury? I mean, focusing on who drove her to the party and not on the charge itself.

    You wingnuts are like the OJ jury, focusing on whether or not Dennis Fung corrupted the crime scene and not on the 8 eight years OJ beat his wife to a pulp. You focus on a memory lapse of “what make and model year was the car that drove you there” instead of the Bart O’Kavanaugh portrait made by his best friend Mark Judge who wrote about the debauched high school reverie of Georgetown Prep. That is corroborated evidence written personally by a guy who was in the room during the attempted assault. And he wrote that decades after the rape in question. So it seems the portrait Dr. Ford gives of “Bart” is much closer to the truth than his whitewashing of his teenage binge drinking.

    Amazing that you goofballs on the right can with zero evidence believe that Obama was born in Kenya (I will bet my year’s social security check that you STILL are a birther) yet totally deny “Bart’s” obvious lies about his past.

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  9. Scott F. says:

    Alas, the deplorable Lindsay Graham gets a vote, while Doug does not.

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  10. Kathy says:

    All three accusations are from the 1980s, as are all stories about Kavanaugh’s heavy drinking. It may be he was a jerk and a half back then, but is merely a jerk now, and probably doesn’t get drunk every weekend. I know people who drank a lot in high school and college, but do so in moderation now.

    I can’t say for sure he attacked Dr. Ford. I can say for sure he drank to excess, bragged of sexual “conquests” in his yearbook, and lied about all that in his testimony. The logical inference, is that he’s lying about Dr. Ford as well.

    Besides all this, I agree with Doug: the man’s a partisan hack, and that disqualifies him from serving in the Supreme Court.

    John Marshall, the first Chief Justice, rendering an opinion in one of the earliest cases, Marbury v Madison, in defining the principle of judicial review, stated that “It is emphatically the province and duty of the judicial department to say what the law is.”

    In the hands of a partisan hack, particularly one with a grudge, this principle is ripe for abuse. The US Constitution is vague on some issues. Some, perhaps, purposefully so, and others because they were not as important in the 1780s as they are now. A Justice Kavanaugh looking for revenge against political enemies, or just to fight political enemies, can twist these vague areas into whatever suits him. Supreme Court cases are not merely about the votes for or against, but also about the opinions published along with the vote tallies.

    Even if I were a Republican looking to hurt the Democrats, I wouldn’t want a Kavanaugh on the Court. it sets a precedent the other party will undoubtedly make use of sooner or later.

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  11. Ray says:

    You have covered the exact way I felt as Kavanaugh unloaded his salvo of anger and unsubstantiated conspiracy theories at Democratic Senators. There is no way that he came off as an impartial Judicial candidate that belongs upon the highest court in America.
    Those that supporting him now are putting political power above the Rule of Law that this country was founded upon and should be ashamed.

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  12. MBunge says:

    And here’s where you have to ask yourself “Am I accomplishing anything other than virtue-signaling and soothing my own butt hurt?”

    https://www.npr.org/2018/10/03/654015874/poll-amid-kavanaugh-confirmation-battle-democratic-enthusiasm-edge-evaporates?utm_source=twitter.com&utm_medium=social&utm_campaign=npr&utm_term=nprnews&utm_content=202803

    Mike

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  13. Scott F. says:

    @MBunge:

    And by the way, what’s the policy around here if some woman accuses Doug Mataconis of sexual assault? How much evidence would she need to get Mataconis suspended or fired?

    Hey, Bunge. I know you were just being dickish, but if you can produce an accuser, who has nothing to gain and vitriolic personal attacks to lose from coming forward, and that person would be willing to risk felony perjury charges by testifying before a Senate committee that Doug had done something like that, I’d be willing to listen. And if Doug had demonstrably perjured himself in front of Congress, I’d even call for his firing.

    The problem with your innocent man position, as well as Trump’s threat to all decent young men crapola, is that it doesn’t hold up with consideration of incentives, statistics on false allegations or the accused’s obvious willingness to lie.

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  14. Daryl and his brother Darryl says:

    @MBunge:

    And here’s where you have to ask yourself

    Here’s what you have to ask yourself; why are you constantly defending the indefensible?
    You support child molesters.
    You support admitted sexual assaulters.
    You support attacks upon your own country by it’s adversary.
    Now you are supporting a perjurer, a conspiracy theorist, and a partisan hack seeking revenge – forget the credible charges of assault – for the SCOTUS.
    Why Bunge?
    Maybe I’m not accomplishing anything…but I’m fighting for what’s right…for what’s best for this nation.
    When Dennison says he can kill someone on 5th Avenue and you will still support him…he is ridiculing you. That’s who you are supporting…a con man who is laughing at you.

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  15. OzarkHillbilly says:

    To be sure, I drank too much in High School and the years immediately after. And yes, I engaged in behavior that I am not today particularly proud of, but I never tried to rape a girl. I never “groped” a woman beyond the point where she said, “No.” And I feel no need to lie about any of it. Strange that Judge Kavanaugh does.

    I would really like to be a fly on the wall of Chief Justice Roberts’ study right now. The man is very concerned with people’s perception of the Supreme Court, even to the point of voting against his desired ends simply because he knew a thing was absolutely constitutional and cited a clause of the constitution that was never brought up in filings or arguments.

    He can’t be happy right now.

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  16. Gustopher says:

    @the Q:

    You wingnuts are like the OJ jury, focusing on whether or not Dennis Fung corrupted the crime scene and not on the 8 eight years OJ beat his wife to a pulp.

    A corrupted crime scene — really, any police misconduct — is a good reason to acquit.

    I have no doubt that OJ killed his wife, but whether or not he killed his wife isn’t the standard for conviction. It’s whether the police can prove — beyond a reasonable doubt, with clean evidence — that he is guilty.

    I’ll defer to the jury on that one, even though I think they let a murderer walk free.

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  17. OzarkHillbilly says:

    @MBunge: By the way, you never responded to my post here @OzarkHillbilly:

    Here, I’ll quote it for you:

    @MBunge: Just for you: Rachel Mitchell’s Former Colleague Slams Her Kavanaugh Memo as “Absolutely Disingenuous”

    A former colleague of Rachel Mitchell, the sex crimes prosecutor hired by Senate Republicans to question Christine Blasey Ford, blasted Mitchell for writing a memo casting doubt on Ford’s allegations against Supreme Court nominee Brett Kavanaugh. Matthew Long, a former sex crimes prosecutor who was trained by Mitchell in the Maricopa County, Arizona, attorney’s office, told Mother Jones the memo was “disingenuous” and inconsistent with Mitchell’s own practices as a prosecutor. “I’m very disappointed in my former boss and mentor,” Long said.

    ………………….

    Long next attacked a section of the memo in which Mitchell focused on Ford’s inability to recall certain details about the circumstances of the assault, including whose house she was at, who invited her, how she got there, and how she got home. “The spotty memory Ms. Mitchell talks about, as if that’s an indication it didn’t happen, is just absurd,” he said. “Again, I was trained by Ms. Mitchell about how trauma explicitly does prevent memory from happening.” Trauma causes the body to go into “fight, flight, freeze,” a survival mode that creates tunnel vision and prevents certain memories from forming that might otherwise have been retained. “I was trained explicitly by Ms. Mitchell to identify that as corroborative, as corroborating that someone has been victimized and experienced trauma,” he stressed. “Ms. Mitchell knows better than that.”

    ETA bad linky, sorry, you’ll just have to work a little and click on the previous thread to find the appropriate links and follow…. Who in the F am I kidding? You, challenge your settled mind by seeking out facts? HA!

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  18. Gustopher says:

    Doug, you don’t mention his lack of candor, which appears to cross the line into perjury.

    Do you not find that troubling? Do you think it doesn’t cross that line? Did I miss a paragraph?

    It’s the thing that strikes me as the most disqualifying, because it is easiest to quantify.

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  19. Jake says:

    @the Q: @the Q:

    No evidence. This case wouldn’t make it to court.

    You really need to take a step back and look what you’ve become.

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  20. OzarkHillbilly says:

    @Jake:

    This case wouldn’t make it to court.

    And by most any measure, neither should this judge.

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  21. Jake says:

    @OzarkHillbilly:

    You don’t see your bias. It’s actually funny.

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  22. Michael Reynolds says:

    He’s a nasty drunk, a liar, a perjurer in fact, a political hack and a mediocre intellect. He probably committed a sexual assault on a 15 year-old girl. He lost control of himself on nationwide TV, snorted like a coke freak, ranted, disrespected, evaded and again, lied.

    Why is this even a discussion. I wouldn’t hire this guy for any job. Would any of you hire Brett Kavanaugh?

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  23. Michael Reynolds says:

    Oh, and excellent work Mr. Mataconis. I often forget to say that but I know how hard this is to do, day in and day out. In the good old days newspaper columnists whined about banging out two 800 columns per week.

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  24. rick says:

    @Michael Reynolds:

    Hope you don’t have kids. You’re unstable

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  25. Blue Galangal says:

    @Michael Reynolds: Having worked my share of low-pay, high-stress jobs, I can safely say no one would hire him as a busser or a bank teller, and he wouldn’t last a day as a front-desk clerk in a hotel. Starbucks would never hire him. He wouldn’t make it onto Target’s team. He wouldn’t last a hot minute in any given restaurant even at 2 pm on a Tuesday after the lunch rush. No one in their right minds hires “crazy.” Furthermore, “entitled” is only a short distance from “crazy” when the chips are down, your rooms are sold out, and one of your biggest regulars is expecting you to find rooms for the band who came in a day early.

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  26. the Q says:

    Jake, this ain’t about a court case. Its about lying under oath to Senators about drinking issues as a teenager. Its amazing that this will not be the real issue to reject Bart as the FBI is not interviewing the numerous witnesses to his alcoholic binging. There is some doubt as to Dr. Ford’s account. There is zero doubt he perjured himself about his teen drinking. Your willful denial of the obvious is so typical of the Trump supporter.

    It reminds me of a story that I would like to paraphrase, “When they came for the communists, I didn’t say anything…When they came for the gypsies, I didn’t say anything….When they came for the Trump supporters, I said, “Hey, make sure you go to Jake’s house at the northwest corner of the block. Look under the rock in the backyard, pretty sure you will find him there.”

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  27. george says:

    A full month’s investigation should do the trick for guilt or innocence – anything that can’t be determined by that time, given how much press this is getting, is simply going to be unknown. A week’s too short, and barely better than nothing. If after a month there’s no more solid evidence then there is now, he’s innocent until proven guilty.

    However, that’s the legal situation and whether or not he should be convicted of a crime. As far as Kavanaugh and the supreme court, he proved in his testimony he doesn’t have the character for it. However, he can’t pull himself out at this point without seeming to admit guilt (not a problem if he is guilty, but clearly something he can’t do if he’s innocent). It reminds me of a boxer who is taking a beating, but can’t quit without forever having it held against him. In boxing its either the ring doctor, the ref, or the boxer’s corner who is supposed to protect the fighter by throwing in the towel for him. In this case its the GOP that should throw in the towel for Kavanaugh, who can continue to proclaim his innocence (perhaps falsely, perhaps truthfully – I suspect we’ll never know for certain).

    Basically, if he’s guilty he should pull himself out, if he’s innocent he should be pulled by his party. Politics is basically a sporting event, and this time Kavanaugh lost. Possibly because of what he did, possibly because the Dem’s outplayed the GOP, but it doesn’t really matter – in sport and politics sometimes you lose. Don’t do sport or politics if you can’t stand losing.

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  28. gVOR08 says:

    This is because, notwithstanding Blasey Ford’s testimony, there simply isn’t sufficient evidence to justify convicting him or any Defendant beyond a reasonable doubt.

    Certainly not sufficient to convict. Perhaps sufficient to investigate, really investigate? By producing a memo saying she wouldn’t indict on this, the hired prosecutor is answering a question no one (except the Rs on the committee) asked, but she did prove she’s acting as a partisan hired gun. Have we really arrived at the point the bar for SCOTUS Justice is not currently indictable for attempted rape?

    However, after Kavanaugh’s performance last week, I regard the Ford et al allegations as immaterial. Kavanaugh may have been acting, playing to the base and Trump, but that would only prove he’s a partisan hack, instead of, or as well as, another privileged GOP snowflake.

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  29. MBunge says:

    Yup, Doug Mataconis should definitely be proud of his position and the folks with whom he stands.

    https://www.thedailybeast.com/senate-staffer-charged-in-gop-senator-doxxing-incident

    There’s no way this could possibly get out of hand because people who know better are scared to say something. It’s INCONCEIVABLE!!!

    Mike

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  30. OzarkHillbilly says:

    @Jake: The funny thing is that I do account for my bias. Try doing the same.

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  31. James Pearce says:

    Doug, this whole thing is good. But I especially liked this part:

    This partisanship, taken together with the fact that I have serious questions about Kavanaugh’s judicial record and his views on some of the most important Constitutional issues the Supreme Court will be dealing with in the future and the outstanding questions that I have regarding the charges that have been made against him and what they say about Kavanaugh’s fitness to be a Supreme Court Justice, I have no choice but to oppose his nomination and to urge those Senators who remain undecided about him to vote against him

    It’s that simple. Vote no.

    America is big. The nefarious Federalist Society has a list and we need the next person on it.

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  32. OzarkHillbilly says:

    the funniest thing for me is that nobody has called for him to be incarcerated, and yet his supporters act as tho he is being drawn and quartered.

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  33. OzarkHillbilly says:

    @James Pearce:

    The nefarious Federalist Society has a list and we need the next person on it.

    Exactly. So why is this a hill Republicans are willing to die on?

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  34. Barry says:

    @MBunge: “And here’s where you have to ask yourself “Am I accomplishing anything other than virtue-signaling and soothing my own butt hurt?””

    Ah, ‘virtue-signalling’. A phrase used by those without it.

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  35. An Interested Party says:

    @MBunge:You should approve of this person as your hero traffics in similar crimes…

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  36. Gustopher says:

    @MBunge: from the article:

    The U.S. Capitol Police arrested a staffer who most recently worked for Sen. Maggie Hassan (D-NH), in connection with the doxxing of “one or more” U.S. senators on their respective Wikipedia pages last week. According to a Capitol Police press release, 27-year-old Jackson Cosko was charged with making public restricted personal information, witness tampering, threats in interstate communications, unauthorized access of a government computer, identity theft, second degree burglary, and unlawful entry.

    This seems like the staffer is being overcharged — dramatically overcharged. An abuse of power.

    I was not aware that the home addresses of Senators was secret information — I’m pretty sure you and I don’t have those privacy protections, and I don’t think that Senators should have more protections than normal people (or even you).

    We know where the President lives. Why not where Congress Critters live?

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  37. Jake says:

    Finally!

    The FBI report on Judge Kavanaugh is being reported as delivered tonight. Senate Majority Leader Mitch McConnell has filed cloture tonight for the supreme court nomination of Judge Brett Kavanaugh. The cloture vote will likely take place Friday ending debate on the nomination.

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  38. Jake says:
  39. Just nutha ignint cracker says:

    @the Q: Not normally a fan–the “get of my lawn you hoodlum kids!” act gets old fast for me–but this comment was clever and had a nice twist that I wasn’t expecting. Kudos!

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  40. Lit3Bolt says:

    Lawyers, Guns, and Money has pointed out that if Kavanaugh is confirmed, every conservative justice will be an asterisk and tainted by corrupt process.

    Justices should be more than partisan meatpuppets mindlessly trained to simply search and destroy domestic enemies.

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  41. One American says:

    @Michael Reynolds: there you go deflecting again. SAD!

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  42. HarvardLaw92 says:

    The man is a perjurer. A potential felon if charged (and he should be).

    Nothing else matters now. This alone renders him unfit for office.

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  43. max says:

    @Jake:

    it’s not just that there was a ‘lack’ of support from witnesses, but specifically that the witnesses SHE identified, including her best friend (!), actively denied being able to support them.

    I agree with the memo – this is not just he said/she said, but less than that, as a result.

    I also do not find her omissions and edits to ‘inconsequential.’

    Plus, see Phelps for flashbulb memories. Emotional memories according to the scientific lit, are prone to increasing confidence with repetition of the story, but not with a corresponding increase in accuracy.

    No, Rob’s got it wrong. She wasn’t credible enough for the allegations to stick. Too much is at stake to ignore her own factual errors/mistakes and the scientific research on flashbulb (emotional) memories.

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  44. James Pearce says:

    @OzarkHillbilly:

    So why is this a hill Republicans are willing to die on?

    A couple reasons. Poor leadership, massive distrust of the other side, and no safe exit.

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  45. Andre Kenji de Sousa says:

    @OzarkHillbilly: S

    o why is this a hill Republicans are willing to die on?

    They risk having Dianne Feinstein sitting on the next dude/gal of The Federalist Society list. They also risk having the Federalist Society being seem as a bunch of hacks because basically everyone connected to them defended Kavanaugh, that at best proved to be a mediocre jurist with horrible temper.

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  46. Michael Reynolds says:

    @James Pearce:
    No, one reason: executive authority over the judiciary. Kavanaugh is being hired to protect Trump. Period.

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  47. James Pearce says:

    @Michael Reynolds: But Kennedy picked him.

    (Point being, Kavanaugh is Trump giving the dog a bone.)

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  48. An Interested Party says:

    Kavanaugh is being hired to protect Trump.

    …Kavanaugh is Trump giving the dog a bone.

    These do not have to be mutually exclusive…

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  49. John430 says:

    “But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith…”

    I agree. The Democrats have been despicable in these hearings.

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  50. george says:

    @Michael Reynolds:

    No, one reason: executive authority over the judiciary. Kavanaugh is being hired to protect Trump. Period.

    My take on this is that Trump doesn’t find it likely any of the current conservatives on SCOTUS are going to protect him beyond the letter of the law, nor will most potential conservative judges he might appoint. That makes Kavanaugh both rare and vital (he needs five protecting judges, but even one protector would make a big difference).

    If Trump thought that he already had protection from all four existing conservative members of SCOTUS, then it’d be trivial to find another conservative judge who shared such a common conservative sentiment, in which case the only reason for Trump not to dump Kavanaugh would be Trump’s personal loyalty, something which is probably best described as infinitesimal.

    Basically, Trump sticking with Kavanaugh at this point suggests that Trump feels he will get no protection from the four existing conservative judges, and has few options among potential conservative candidates.

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