Revised Thoughts on the Kavanaugh Hearings

I've changed my mind on a couple of things and hardened my opinion on others.

I’ve spent much of the day working on an unrelated writing project but have also intermittently engaged in discussions in the comments on my early morning first-reaction post and my Twitter feed, as well as watching the Judiciary Committee vote and its aftermath. I’ve changed my mind on a couple of things and hardened my opinion on others.

  1. First and foremost, I think Brett Kavanaugh simply can’t be seated on the Supreme Court absent some shocking development that exonerates him. My impression this morning, that he’ll simply be viewed as illegitimate by a huge swath of the country who see him as a symbol of sexual assault, has been reinforced. The histrionic confrontation of Jeff Flake this morning, which is the sort of thing I could generally speaking do with less of in our politics, simply demonstrates how heartfelt this issue is. And, as Lindsey Graham observed while making the case for getting the vote over with, neither “the FBI, the CIA, or the French Foreign Legion” are likely going to be able to change anyone’s mind about what happened that night back in 1982.
  2. My own rapid evolution also reinforced my sense that we need time to let an investigation run. Yes, that’s contradictory to the first point. But the outcome’s likely inevitability doesn’t make process unimportant. Democrats will be angry at losing on a party-line vote but will at least see the process as more fair if there is time for an investigation. And, if more information is found that damages Kavanaugh, Republicans will be less furious if he loses if due process is followed. (As I write this, it seems clear that we’re going to get at least a one-week delay. That’s better than nothing.) And this will give the voters more time to reflect on what’s unfolded and contact their Senators.
  3. I now think that Kavanaugh’s obvious lies yesterday were disqualifying. As they were happening, I was prepared to cut him some slack because of the gravity of the charges and the sheer indignity of having to answer embarrassing questions about inscriptions in his high school yearbook in front of a national television audience as well as his wife and children. But, as Kavanaugh himself noted about unsavory questions being asked of Bill Clinton, they were necessary given the nature of the inquiry. While I don’t know that being a drunken douchnozzle in high school makes it more likely that you were also a rapist, it’s not an unreasonable thing to want to understand. As an officer of the court under oath, he had an obligation to be truthful and forthcoming. He was transparently the opposite.
  4. Similarly, while in real time I considered Kavanaugh’s belligerence towards Senate Democrats part and parcel of an ugly, political game, upon reflection they’re simply unacceptable for a nominee for the highest court in the land facing what even President Trump has now acknowledged was credible testimony that he was an attempted rapist. I fully understand why that would make him angry and humiliated. But it was hardly a surprise. He’d had two weeks to reconcile himself to the situation and opted for a strategy of obnoxious partisanship. That’s disqualifying.
  5. I remain skeptical of Ford’s account of what happened that night, including her newfound certainty as to what year it happened and her being “100 percent sure” Kavanaugh was her assailant. I’m old enough to remember the fiascos of the 1990s, when a lot of reputations were ruined and people actually went to jail based on testimony colored by memories supposedly “recovered’ in psychotherapy. I don’t think we’re at anywhere near the “reasonable doubt” standard required to punish Kavanaugh under our criminal laws. But his willingness to brazenly lie about his drinking habits and the various teenage peccadillos documented in his yearbook—and my inability to tell the difference in his demeanor from his denials of more serious charges—moves the needle pretty close to the “preponderance of the evidence” standard used in civil court.
  6. At the same time, I retain some sympathy for his claims that his life has been permanently damaged by these allegations. If he’s in fact innocent of the worst of them, that’s a shame. He had, as best I can tell, a rather sterling professional reputation with some people whose views I very much respect vouching for him before this all unfolded. He’ll never recover that. And he’s likely right that he’ll be less welcomed in the halls of elite academic institutions or even coaching his daughters’ sports teams now that he’s widely suspected of being a serial sex offender.  As much as I despise “bro culture,” that’s an awfully high price to pay if he indeed matured into an upstanding citizen and lived his life that way for the last three decades or more. Then again, he had a golden opportunity to reflect on how far he’s come and own up to and express remorse for who he’d been. His failure to do that—instead lashing out at the injustice of it all—is on him.
FILED UNDER: *FEATURED, 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. Not the IT Dept. says:

    For the first time in his privileged life, he’s actually in danger of being held accountable for his actions. Instead of just sailing through his spoiled-brat, private-academy existence doing whatever he wanted to whoever he wanted, now he’s going to be judged by people who might have – gasp! – gone to public schools, didn’t have daddies who could pay off their gambling debts or buy him a house and weren’t coddled by the Republican Party so he could be their tool on the highest court in the land.

    Free advice to McConnell: cut this POS loose and tell the Federalist Society to do a better vetting job in the future.

    In fact, how about a post on the Federalist Society and their increasingly not-secret plan to stack the courts nationwide?

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  2. Lynn says:

    “I’m old enough to remember the fiascos of the 1990s, when a lot of reputations were ruined and people actually went to jail based on testimony colored by memories supposedly “recovered’ in psychotherapy”

    This is not a memory “recovered” through bogus psychotherapy. Ford is enough of a scientist that she would, most probably, reject the whole concept of “recovered memory” out of hand.

    In contrast, this is something that she never forgot, that she has lived with since it happened. There may be details that she remembered more clearly as she talked about it more, in and out of therapy, but there is no indication that she had ever lost the main facts.

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  3. TM01 says:

    @Lynn:
    You’re right.
    Memories aren’t recovered so much as created or planted.

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  4. TM01 says:

    If you think Democrats will ever accept Kavanaugh on the court you truly are a fool.

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  5. Kari Q says:

    I respect your willingness to change your mind. I agree that even if the charges of sexual assault could be definitively proven false (and I don’t see how that would be possible), the partisan vitriol would be unacceptable in a Supreme Court Justice. Imagine how Republicans would feel if Sonya Sotomayor had sat in front of the judiciary committee and called Republicans a bunch of racist and vowed revenge against them for questioning her credentials, and Democrats had said “Great! That’s what we want in a Supreme Court Justice!”

    I’m old enough to remember the fiascos of the 1990s, when a lot of reputations were ruined and people actually went to jail based on testimony colored by memories supposedly “recovered’ in psychotherapy.

    I remember this as well, but it doesn’t apply here.She is not sharing “recovered” memories nor did she ever “repress” them. She always remembered. She never forgot.

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  6. Steve V says:

    As much as I despise “bro culture,” that’s an awfully high price to pay if he indeed matured into an upstanding citizen and lived his life that way for the last three decades or more. Then again, he had a golden opportunity to reflect on how far he’s come and own up to and express remorse for who he’d been.

    That’s the rub right there. I would go further and say that the path he chose to take yesterday constitutes evidence that he hasn’t come nearly far enough.

    I’m a lawyer and from law school and afterwards, I more than most people venerated Supreme Court justices as unusually gifted and exceptional people. I actually still feel that way about the current eight justices on the court even though there’s a lot of partisan sniping and belittling of the court these days. Kavanaugh just isn’t that. He’s a partisan operative.

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  7. James Pearce says:

    Democrats will be angry at losing on a party-line vote but will at least see the process as more fair if there is time for an investigation.

    Yeah, but they’re doing that old thing where “If it’s fair to them, it’s unfair to me.” The investigation is a political tactic, not an “investigation.”

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  8. Daryl and his brother Darryl says:

    Well stated, James.
    I think you can set aside the sexual assault charges. His belligerence, his rank partisanship, his conspiracy theorizing, and the numerous outright lies he told, during his testimony yesterday were disqualifying enough on their own.

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  9. Daryl and his brother Darryl says:

    @James Pearce:

    The investigation is a political tactic, not an “investigation”.

    I’m sure the FBI will be glad to hear that, and will simply assign their political tactical squad instead of their actual investigators.

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  10. EddieInCA says:

    @DrJoyner

    Thank you for the reasoned, nuanced comment.

    I watched every minute of the proceesed, and came away with these thoughts:

    1. Dr Ford was credible. Speaking with my sister (53), my niece (23) and my Mother (81), gave me startling insight. All THREE of them described incidents in their own lives similar to what Dr. Ford experienced. (Teenaged men, or men in their early 20’s, too drunk to know what they’re doing, trying to force themselves on women while drunk.) Here’s the kicker… All three of them couldn’t tell you the exact year, or complete circumstances because of their own cloudy memories, but every one of them was absolutely certain of the MAN who did it. That part of the memory is crystal clear. I don’t doubt that some women make up claims, but most do not. Overwhelming majority of victims don’t make it up. The real time corroboration of Kavanaugh’s behavior in High School and Yale (his yearbook, recollection of his former roommate, the ex- of Mark Judge) lends credence to the fact that he COULD HAVE done it.

    2 I actually didn’t touch alcohol until I was 24. Most of my friends back in the day liked to drink to the point of blacking out. This was a regular thing. At parties, they would try to get women drunk to the point of not being able to consent. To me, Dr. Ford’s recollections match more closely to reality than that of Kavanaugh.

    3. Kavanaugh’s denials in regards to his drinking aren’t credible. The evidence that exists of the culture at his prep school undermines his denials.

    4. Kavanaugh, to me, came across as an angry partisian. I understand his anger, as he feels he’s being unjustly accused, but his demeanor was the exact opposite of what you expect or want from a Judge, much less a Supreme Court Justice.

    5. The fact that his college classmates are now coming out and calling him out on his lying yesterday is illuminating.

    6. Sadly, he will probably be confirmed.

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  11. Lynn says:

    @TM01: “Memories aren’t recovered so much as created or planted.”

    Not applicable, in this case. It’s quite clear that she has remembered the salient details since it happened.

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  12. gVOR08 says:

    Can’t disagree with any of this. Kavanaugh certainly was’t displaying a judicial temperament yesterday. And, as you note, he was telling obvious lies. Then he went off into the RW conspiracy about this all being a Clintonista plot. Whatever the truth of Ford’s and others’ allegations, Kavanaugh made it obvious yesterday by his own actions that he does not belong on our highest court.

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  13. Liberal Capitalist says:

    @James Pearce:

    Yeah, but they’re doing that old thing where “If it’s fair to them, it’s unfair to me.” The investigation is a political tactic, not an “investigation.”

    1) There will not be an FBI investigateion, as that investigation would be at the request of President Trump, and THAT just ain’t gonna happen. As Wonkette says: “…because he thinks the FBI is full of Democrats who are out to get him and steal his strawberries.”

    2) Your comment makes it obvious: You are neither liberal or independent. I have given you the benefit of the doubt in the past, but if you look at all that has gone on over the last week and all you see is that it would be a democrat “tactic”… well, that’s just done with you.

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  14. MikeSJ says:

    Nope. No sympathy. Or how about as much sympathy as he gave to Vince Fosters family?

    Just for that alone I hope his life is destroyed. He is scum and deserves it.

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  15. grumpy realist says:

    Kavenaugh’s defense of himself was pretty putrid. It seems that the denizens over at TAC are frothing at the mouth about “poor, poor, unjustly accused Judge Kavenaugh!” and how nasty as those horrible liberals are for bringing up these stories.

    …..makes me wonder what they have in THEIR backgrounds….

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  16. dennis says:

    James, I think you’re pretty much on point with the majority of people. It’s all good when the rules of the game work in your favor (Merrick Garland). When the other side plays the game in its favor (Brett Kavanaugh), you have to hate the game, not the player. Mitch McConnell has been a gangsta at the game, and Republicans have reveled in that, up to now. As much as I despised him for the Garland nomination, I had to give grudging respect for how he gamed the system for Republicans.

    The shoe will be on the other foot one day, and Republicans are not going to like what comes down. As is said in the ‘hood, though: don’t hate the playa, hate the game.

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  17. James Pearce says:

    @Daryl and his brother Darryl:

    I’m sure the FBI will be glad to hear that, and will simply assign their political tactical squad instead of their actual investigators.

    Oh, I have no doubt the investigators will do their due diligence. Not sure what you think they’re going to find, though. Thanks to Jeff Flake, it’s now become cover for Republicans to confirm Kavanaugh.

    Don’t confront me with a consistent losing record and then claim a winning strategy.

    @Liberal Capitalist:

    Your comment makes it obvious: You are neither liberal or independent.

    Not a partisan for sure but definitely a liberal independent. I’d prefer someone else on the SC, but elections have consequences. They are not aspirational expressions of identity.

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  18. grumpy realist says:

    For the guys here–go and ask the women in your life about their own experiences. You’ll be surprised–and dismayed. 80% of women have been sexually assaulted. I was myself–twice.

    And we keep quiet. Because what is the use complaining? We get called sluts, accused of making things up (as TM01 does above) asked “what were you wearing?”, told it was our fault for getting drunk (even if we weren’t.) That the behavior was just “boys being boys.”

    Go look at the outpouring of stories that are coming out now. Sen. Flake was confronted by two women today:

    “I was sexually assaulted and nobody believed me,” the other woman, Maria Gallagher, told Flake. “I didn’t tell anyone and you’re telling all women that they don’t matter, that they should just stay quiet because if they tell you what happened to them you are going to ignore them. That’s what happened to me, and that’s what you are telling all women in America, that they don’t matter. They should just keep it to themselves because if they have told the truth you’re just going to help that man to power anyway.”
    Flake was visibly uncomfortable. He quietly listened to the women and alternated between making eye contact with them and looking down at the ground.
    Gallagher continued through tears, “Don’t look away from me. Look at me and tell me that it doesn’t matter what happened to me. That you will let people like that go into the highest court of the land and tell everyone what they can do with their bodies.”

    I don’t think men realize exactly how devastating this all is.

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  19. Rick Zhang says:

    It’s quite obvious the conclusions that one can draw from this, much of which Doug and James have already said.

    1. We will never be able to prove innocence or guilt in this case, which is why statue of limitations apply to criminal charges. I doubt an FBI investigation will change anything.
    2. However, the position of Supreme Court justice is one that requires a higher level of virtue/ethics and we are entirely justified in rejecting someone either insufficiently qualified or who is of suspicious character. The position is a privilege, not an entitlement. Harriet Miers withdrew for less.
    3. The alternative nominees are just as qualified in background with less behavioural baggage. Why does it have to be this guy when you can have someone just as conservative be approved much easier?
    4. The type of alleged behaviour for sure does happen to some level in the elite boarding/prep school culture. Harvard’s “Final Clubs” are notorious for this for example. Any generic state school fraternity has the same.
    5. In weighing the risk/benefit from a societal perspective, it’s far better to send a stern warning message by denying Kavanaugh the seat. His fallback position is a cush Circuit Court Justice job. The seat will be filled by someone just as qualified and conservative. Republican officeholders gain at least some semblance of moral credibility with women voters. Most importantly, we send a rebuke to aspiring young men to have better moral conduct in their 20s lest photos of their conduct surface later in life to limit their ability to rise to high office.
    6. By virtue of his stern partisan defense, a Supreme Court with him on it will lose public standing and will be less effective at enforcing its rulings. I’m sure Roberts is quaking at how the court’s image may be irrevocably damaged.
    7. Disagree with those who say this is all a partisan plot. There are too many reports of actions and patterns of behavior to make this allegation implausible. Gorsach is just as conservative and no similar allegations ever surfaced.

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  20. Lounsbury says:

    Similarly, while in real time I considered Kavanaugh’s belligerence towards Senate Democrats part and parcel of an ugly, political game, upon reflection they’re simply unacceptable for a nominee for the highest court in the land facing what even President Trump has now acknowledged was credible testimony that he was an attempted rapist. I fully understand why that would make him angry and humiliated. But it was hardly a surprise. He’d had two weeks to reconcile himself to the situation and opted for a strategy of obnoxious partisanship. That’s disqualifying.

    I think this is the key….

    It is entirely reasonable to have rather serious doubts about the certainty of Ms Ford or the parameters of the encounter, or the disqualifying nature of a drunken teenage incident.

    However, the manner in which the pressure and this was handled, that does indeed speak to qualification to be a justice on the highest court of a country. If the rage was real, it is disqualifying – it is not the temperment of a proper high court justice. If it was faked – the same, it is not the proper behaviour of a high court justice.

    This should have been the opportunity for him to show himself of a high character, a cool and steely temperment. It did not happen.

    There are better candidates to put forward – just putting forward to Win is a fine way to destroy a country’s justice system’s credibility.

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  21. Michael Reynolds says:

    @james joyner, I’m on-board with all of that. I stopped buying Kavanaugh’s act once I recalled my own reaction to being caught. I was furious. I was paranoid. I blamed everyone and everything except of course the one person responsible, myself. I’d have been quite convincing. The emotion would have been real. The only difference would be that I’d have much better lies, more nuanced. Seriously, the devil’s triangle is three drinks of what, lemonade? Lawyers should stick to lying about law, they shouldn’t venture into creative.

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  22. Franklin says:

    @TM01:

    If you think Democrats will ever accept Kavanaugh on the court you truly are a fool.

    Not sure who you’re talking to, but anybody who lies that much about trivial stuff like drinking in high school probably shouldn’t be on the Supreme Court. Those lies are in the present day. This is who Kavanaugh is.

    I’m personally not convinced he’s guilty or innocent of attempted rape, but I know he’s a liar.

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  23. Michael Reynolds says:

    @Lounsbury:
    So many guys think they’re tough because they’re boardroom tough. He cracked like an egg. And under pressure he went hot not cold. Men who translate stress into visible rage are a problem. It means this is something already bottled up inside. If he were a bit more clever he’d have gone icy rage, that always reads as self-controlled, even dignified.

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  24. Daryl and his brother Darryl says:

    I gather Kavanaugh has become a big hero to the sexually frustrated, misogynist “incel” community (TMzero? Bunge? J-enos?) after he claimed that he was a virgin for many years…even after graduating from HS.

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  25. Teve says:

    I agree with 99% of James Joyner’s OP here.

    And I want to add something a friend just said:

    “Devil’s Triangle” as another name for the game of Quarters is another completely stupid, unmotivated lie. It was called Quarters! There’s no other name for it. Everybody called it Quarters; NOBODY called it Devil’s Triangle. Why lie so transparently and badly?

    Trumpers of course won’t care that Kavanaugh is a liar, but people with ethics do.

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  26. Teve says:

    @Liberal Capitalist:

    As Wonkette says: “…because he thinks the FBI is full of Democrats who are out to get him and steal his strawberries.”

    I love Wonkette. 😛

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  27. grumpy realist says:

    Quoting from a thread over at Balloon Juice:

    Jackson Katz, a prominent social researcher, illustrates why. He’s done it with hundreds of audiences:

    “I draw a line down the middle of a chalkboard, sketching a male symbol on one side and a female symbol on the other.

    Then I ask just the men: What steps do you guys take, on a daily basis, to prevent yourselves from being sexually assaulted? At first there is a kind of awkward silence as the men try to figure out if they’ve been asked a trick question. The silence gives way to a smattering of nervous laughter. Occasionally, a young a guy will raise his hand and say, ‘I stay out of prison.’ This is typically followed by another moment of laughter, before someone finally raises his hand and soberly states, ‘Nothing. I don’t think about it.’

    Then I ask the women the same question. What steps do you take on a daily basis to prevent yourselves from being sexually assaulted? Women throughout the audience immediately start raising their hands. As the men sit in stunned silence, the women recount safety precautions they take as part of their daily routine.

    Hold my keys as a potential weapon.
    Look in the back seat of the car before getting in.
    Carry a cell phone.
    Don’t go jogging at night.
    Lock all the windows when I sleep, even on hot summer nights.
    Be careful not to drink too much.
    Don’t put my drink down and come back to it; make sure I see it being poured.
    Own a big dog.
    Carry Mace or pepper spray.
    Have an unlisted phone number.
    Have a man’s voice on my answering machine.
    Park in well-lit areas.
    Don’t use parking garages.
    Don’t get on elevators with only one man, or with a group of men.
    Vary my route home from work.
    Watch what I wear.
    Don’t use highway rest areas.
    Use a home alarm system.
    Don’t wear headphones when jogging.
    Avoid forests or wooded areas, even in the daytime.
    Don’t take a first-floor apartment.
    Go out in groups.
    Own a firearm.
    Meet men on first dates in public places.
    Make sure to have a car or cab fare.
    Don’t make eye contact with men on the street.
    Make assertive eye contact with men on the street.”

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  28. Teve says:

    @grumpy realist: Indeed I agree with some liberal commenter discussed at Kevin Drum’s place that this might be a Pearl Harbor level event with #MeToo where shit gets different Real Fast.

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  29. Kari Q says:

    you’re telling all women that they don’t matter, that they should just stay quiet because if they tell you what happened to them you are going to ignore them. That’s what happened to me, and that’s what you are telling all women in America, that they don’t matter.

    Repeating the quote from @grumpy realist: because it can’t be said enough. This is why I kept repeating “they don’t care.” By refusing to even investigate, the GOP showed that they do not care about sexual assault. They do not care about women’s lives being ruined. They do not care about the damage done to them. They really don’t think it matters. They really don’t think that the women matter. And they are angry and resentful that they are being forced to act as if they do care.

    To me, this also points to the most likely explanation of what actually happened. Kavanaugh did it and doesn’t remember because to him, it was no big deal. To him, it was just fun. A man shouldn’t suffer for having a little fun when he was a teenager, what’s the big deal.

    Dr. Ford cannot forget. It was devastating. She thought she was going to be raped. She thought she was going to die. That’s not something you forget.

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  30. James Pearce says:

    @grumpy realist:

    I don’t think men realize exactly how devastating this all is.

    You should probably talk to some non-deplorable conservatives…

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  31. Steve V says:

    @Rick Zhang:

    Why does it have to be this guy when you can have someone just as conservative be approved much easier?

    It’s part of the deal, the satisfaction they get from forcing this guy on us. Liberal tears motivate these people more than conservative ideology these days.

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  32. Ray says:

    I am married and have a 14 yr old daughter. Putting a short time limit upon an investigation of this type is nothing more then a show. It will take time to prove these accusations are valid or not. Remember this is a LIFETIME position.
    Dr. Ford passed a polygraph, any investigation should include a polygraph of Kavanaugh as well.
    Also both the American Bar Association and Yale Law have demanded an investigation and they are not talking about a (Limited) one.

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  33. al Ameda says:

    Extracted from The Hill: a part of Kavanaugh’s breakdown.

    “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups,” a seething Kavanaugh said.

    There is something more going on here.
    When Kavanaugh was on Ken Starr’s investigation team, he had strong desire to humiliate Bill Clinton by suggesting that Clinton be posed with questions that were graphic in details of the sex acts Clinton had with Monica Lewinsky. I think this is part of the reason why Kavanaugh spewed forth his vitriol toward the Clintons. He’s been part of the long term effort to bring the Clintons down for a long time. This is not the only reason, but it’s an important one.

    Let’s be clear, Trump Republicans are thrilled that Kavanaugh lashed out and revealed himself to be a rank partisan. We know that every person has ideological preferences, that’s normal, but usually a person in Kavanaugh’s position, a prominent Judge, has the common sense to maintain composure and avoid directly partisan statements like this.

    Frankly, on the basis of the above extracted statement alone, let alone much of the rest of his presentation, the quality of his judicial temperament should be called into serious question.

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  34. Lounsbury says:

    @Michael Reynolds: Yes, I agree – he went hot, it showed a poor moderation, a poor control. Icey anger, coolness under the pressure with perhaps a choking up.

    In any case, the performance shows a temperment that is not the right temperment for a high court. Conservative politics has nothing to do with it. A poor choice by temperment.

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  35. Lounsbury says:

    @Ray: Polygraphs say f**k all about anything except ability to control anxiety.

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  36. Scott says:

    It may have been discussed elsewhere but it is clear that Dr Ford was reasoned, calm, and collected. Was this part of her normal demeanor? Maybe, probably. But just imagined the reaction if she went into hysterical rage like Kavanagh and Graham. The question is why men can get away with that but the woman can’t.

    And Graham called Ford troubled and clearly has a problem. Lindsay, keep your projections for the theater.

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  37. Fiona64 says:

    @Kari Q: “To me, this also points to the most likely explanation of what actually happened. Kavanaugh did it and doesn’t remember because to him, it was no big deal. To him, it was just fun. A man shouldn’t suffer for having a little fun when he was a teenager, what’s the big deal.”

    That’s it, in a nutshell. Predators like this consider their behavior business as usual … because they get away with it. They never think about the devastation they leave in their wakes, because it was all for the LULZ.

    Schoolyard bullies who are never checked grow up to be predators. Kavanaugh is proof of it.

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  38. An Interested Party says:

    But just imagined the reaction if she went into hysterical rage like Kavanagh and Graham. The question is why men can get away with that but the woman can’t.

    Indeed…imagine the reaction if Kamala Harris threw the same kind of hissy fit that Lindsey Graham did…

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  39. Donald Sensing says:

    I have some familiarity with such investigations. I was investigated a number of times during my military career regarding security clearances (the checks for top secret were extremely thorough) and regarding my clearances for nuclear-weapons operations. The FBI did not do them because DOD had the assets to do them itself. But the procedures are are same.

    I checked my information here with special agents of US Army Criminal Investigation Command (CID), where I served as my final assignment in the Army. I was not an investigator, however, which is why I ran this through agents who actually performed such investigations.

    Key points: These investigations are a service to the office or agency requesting them. The FBI does not initiate them except by request. They are not criminal investigations. The FBI receives and reports information relative to the subject’s fitness for office or clearance or whatever reason it was requested. That is all it does.

    Hence, the FBI collects information and provides a report with statements and summaries and provides it to the requester, in Kavanaugh’s case, the White House. An retired special agent who conducted such investigations told me,

    An FBI BI [background investigation] is conducted by fully qualified [active] and retired criminal investigators who have many years experience conducting investigations. It is the investigator’s job to identify disqualifying information and immediately report that information to BICS, the FBI unit responsible for BIs. They then make the determination on what action takes place next.

    This agent went on to explain that the vast majority of BI investigations are conducted by retired special agents, although, “BIs of people holding or nominated for certain very high positions are conducted by active FBI agents.” Also, the BI is not a rubber-stamp operation; it is substantive and inquiring. Having endured three TS/SCI investigations myself, I can attest they are not casual or “by the numbers” at all. In fact, they can be quite uncomfortable. However, the final decision of qualification or disqualification does not rest with the FBI. It is the responsibility of the requesting agency.

    In this case, Senator Diane Feinstein sent a copy of Christine Ford’s letter to the FBI. The FBI took the proper step of turning it over to the White House for their consideration regarding Kavanaugh’s nomination. Job done, as far as the FBI is concerned.

    That is why this renewed FBI “investigation” is (at best) misguided. There is no investigation left for the FBI to do, and people who think there is do not understand how such investigations are conducted and what happens at the end.

    In background investigations, all the FBI does is take statements. It does not grill witnesses, it does not pick statements apart and try to find “the truth.” It simply takes statements and passes them on to the requesting agency for their review and assessment. As Joe Biden said in 1991, the FBI does not draw conclusions in these investigations. They will not come back in a week and say, “Ford is lying” or “Kavanaugh is lying.” They will not come back next week and say either, “Kavanaugh did what Ford alleges” or “Kavanaugh did not do what Ford alleges.”

    They will present the White House yet again with a sheaf of papers of statements and walk away. Only is there is a truly serious allegation related to the FBI does it get further review inside the FBI, as one the special agents explained to me. But the “serious allegation” is already out there, so what’s left?

    I will leave the last word on the investigation to retired Special Agent Johnny T., who wrote me,

    I did FBI Backgrounds for FBI/BICS for 16-17 yrs and you’re absolutely correct…. FBI would have nothing to investigate plus no Federal Crime….

    Again: This is not a criminal investigation. Ford has never made any criminal complaint to any law enforcement agency. If she really does want an investigation, all she has to do is contact the police department of the Maryland municipality concerned and swear the complaint.

    As a matter of criminal law, the FBI has no jurisdiction anyway because the allegations do not fall under federal purview. If there is a statutory violation, it is of the laws of law of Maryland. The FBI investigates only offenses against federal laws and does not itself decide whether to prosecute. That is the decision of the US Attorney’s office. As one agent told me, with no statutory federal violation at hand, the chance of a US attorney directing a criminal investigation is extremely remote for this or any other incident. No one from the Maryland attorney general’s office has even identified what Maryland law(s) might have been violated, but then, they wouldn’t do so because Ford has not made a criminal complaint to them.

    Bottom line: There is literally nothing else for the FBI to do here. This week-long renewed investigation is starting now because the US Senate is so dysfunctional that it hopes the FBI will pull it out of a hole that it dug itself.

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  40. Lynn says:

    @Michael Reynolds: “I stopped buying Kavanaugh’s act once I recalled my own reaction to being caught. ”

    In contrast, I remember a client telling me about how her brother reacted when she mistakenly accused him of having participated in sexually abusing her.

    He apologized profusely, but said he simply didn’t remember having done that. And then he apologized for not remembering, and asked if she could ever forgive him. When, later, she figured out that she had been mistaken (a long story, and tied in with the recovered memory crap), they were able to put their relationship back together again.

    I was impressed by both of them

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  41. Kari Q says:

    @Donald Sensing:

    In this case, Senator Diane Feinstein sent a copy of Christine Ford’s letter to the FBI. The FBI took the proper step of turning it over to the White House for their consideration regarding Kavanaugh’s nomination. Job done, as far as the FBI is concerned.

    This is not an investigation. This is handing the matter to the White House for them to determine if it is worth investigating; the FBI can’t make that call on its own. The White House did not request an investigation until today, so no investigation has yet occurred.

    The initial background check that is done for all nominees that require Senate confirmation would not have covered these incidents. The FBI would have focused on the last 7-10 years, not his entire life.

    These claims have never been investigated.

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  42. george says:

    @Daryl and his brother Darryl:

    Well stated, James.
    I think you can set aside the sexual assault charges. His belligerence, his rank partisanship, his conspiracy theorizing, and the numerous outright lies he told, during his testimony yesterday were disqualifying enough on their own.

    My thoughts as well. Go ahead with a proper investigation (a full month at least), but its irrelevant. Even if it turns out he was innocent of the charges (unlikely but possible, as the Innocence Project has shown many times people who are 100% certain are sometimes wrong – its part of being human), his character under duress makes him unsuitable for the supreme court.

    I picture say Scalia or Ginsburg faced with similar charges. Both would come back with witty and cutting responses, while keeping their cool and their objectivity – they’d act like judges. Kavanaugh acted like a politician. Maybe he should give that a try.

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  43. Steve V says:

    @Lynn: Your story reminds me of something I saw Ana Marie Cox say a week or two ago, before Kavanaugh testified:

    I think what I’m going to be listening for is whether or not Kavanaugh seems to have grown as a person since whatever happened happened. You know, I come to this not just as a survivor of sexual assault but as a person from recovery of drugs and alcohol.

    And quite frankly, I have done stuff in blackout. I have done things that I would never do sober in a blackout. So I’m prepared to believe that he may have done something terrible that he doesn’t remember doing. But, you know, it`s my practice and it`s the way that I’ve sort of have been taught to conduct myself in recovery that if someone says I did something terrible and I don’t remember whether I did it or not, I`m not in a position to deny it.

    And my place is to listen to that person and to hear their pain, to hear their experience and ask what it is I can do to make it better, you know, to look to something restorative, whether or not I can deny or agree to the allegation. That’s not the process we have in the Senate but, you know, it would be an interesting instructive moment.

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  44. george says:

    @Scott:

    The question is why men can get away with that but the woman can’t.

    To be fair, Kavanaugh’s not getting away with it. The GOP is supporting him because of politics, not because they were impressed by his outburst. The Dems and independents think his outburst makes him a bad candidate even if he’s innocent.

    In fact I don’t think anyone gets away with it. Remember the “Dean Scream” which scuttled Howard Dean?

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  45. OzarkHillbilly says:

    thank you james. you are who i’ve always known you to be.

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  46. Michael Reynolds says:

    @Lynn:
    Was your client British? They reflexively apologize for anything.

    The ability of the human mind to justify the unjustifiable borders on the miraculous. To this day I can’t believe my (eventual) wife didn’t run. I must have looked like a possible fix-er-upper. It worked out, but Jesus, what was the woman thinking?

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  47. OzarkHillbilly says:

    @James Pearce: bullshit.

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  48. HarvardLaw92 says:

    @Liberal Capitalist:

    Trump has, surprisingly, ordered an FBI investigation. At this point I can’t tell whether they are stalling for time, in hopes that this will eventually clear the way for confirmation because they don’t expect it to produce anything useful, or they’re preparing to throw him under the bus because they know that it will do so.

    I’m leaning towards the latter.

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  49. Just nutha ignint cracker says:

    @grumpy realist: I don’t think that men understand how devastating it is either. Moreover, I doubt that most of us even care except to the extent that it affects our relationship with the various women in our personal lives. Maybe not even then for some significant number of us.

    As to Dr. Joyner’s point about the effects of these charges on Kavanaugh’s personal and professional life–don’t give a rat’s ass about it. I’m told that one of the things that recovering substance abusers (or drunken douchenozzles if you prefer) need to do is own their actions and be able to account for how they’ve grown, and atoned when possible, out of and away from their former selves. Screaming on national television about how unfairly you’re being treated, while it may play well for the President and the Trumpies, does nothing that shows ownership of actions or growing out of one’s former self.

    Please save the “these are only accusations and haven’t been proven” crap for some one who gives a… has a dog in this particular fight. I’m not the one who called him “a frat boy,” “a drunken douchenozzle,” “a part of th bro system,” or anything else and had already lost interest in endorsing him at the end of his original testimony. As I noted on an earlier post, when he claimed that he sees Roe as “settled law,” I already assumed that he must be dishonest because I simply find it unlikely that a person who actually believes that can make Heritage’s short list and wonder why such a person would want to.

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  50. OzarkHillbilly says:

    @James Pearce:

    Oh, I have no doubt the investigators will do their due diligence. Not sure what you think they’re going to find, though. Thanks to Jeff Flake, it’s now become cover for Republicans to confirm Kavanaugh.

    who needs an fbi investigation when we have pearce? he knows all, sees all.

    has it never occurred to you that while they may not be able to prove or disprove the specific attempted rape allegations of dr. blasey, they might very well uncover the fact that he engaged in such behavior as has been asserted by these 3 women on multiple occasions???? things he has already testified never happened because he is as pure and innocent as the driven snow????
    of course it has!!!!! that’s why you denigrate it before hand, because lying under oath iokiyar.

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  51. OzarkHillbilly says:

    @grumpy realist:

    I don’t think men realize exactly how devastating this all is.

    you’re right. we don’t. from balloon juice,

    I wish every man in the entire world would read this. Men, walk in our shoes for just 30 seconds by reading this post. Guys ask why women are so pissed off. Even guys with wives and daughters.

    Jackson Katz, a prominent social researcher, illustrates why. He’s done it with hundreds of audiences:

    “I draw a line down the middle of a chalkboard, sketching a male symbol on one side and a female symbol on the other.

    Then I ask just the men: What steps do you guys take, on a daily basis, to prevent yourselves from being sexually assaulted? At first there is a kind of awkward silence as the men try to figure out if they’ve been asked a trick question. The silence gives way to a smattering of nervous laughter. Occasionally, a young a guy will raise his hand and say, ‘I stay out of prison.’ This is typically followed by another moment of laughter, before someone finally raises his hand and soberly states, ‘Nothing. I don’t think about it.’

    Then I ask the women the same question. What steps do you take on a daily basis to prevent yourselves from being sexually assaulted? Women throughout the audience immediately start raising their hands. As the men sit in stunned silence, the women recount safety precautions they take as part of their daily routine.

    Hold my keys as a potential weapon.
    Look in the back seat of the car before getting in.
    Carry a cell phone.
    Don’t go jogging at night.
    Lock all the windows when I sleep, even on hot summer nights.
    Be careful not to drink too much.
    Don’t put my drink down and come back to it; make sure I see it being poured.
    Own a big dog.
    Carry Mace or pepper spray.
    Have an unlisted phone number.
    Have a man’s voice on my answering machine.
    Park in well-lit areas.
    Don’t use parking garages.
    Don’t get on elevators with only one man, or with a group of men.
    Vary my route home from work.
    Watch what I wear.
    Don’t use highway rest areas.
    Use a home alarm system.
    Don’t wear headphones when jogging.
    Avoid forests or wooded areas, even in the daytime.
    Don’t take a first-floor apartment.
    Go out in groups.
    Own a firearm.
    Meet men on first dates in public places.
    Make sure to have a car or cab fare.
    Don’t make eye contact with men on the street.
    Make assertive eye contact with men on the street.”

    ― Jackson Katz, The Macho Paradox: Why Some Men Hurt Women and How All Men Can Help

    (The first man to minor in women’s studies at the University of Massachusetts-Amherst, holds a master’s degree from the Harvard Graduate School of Education, and a Ph.D. in cultural studies and education from UCLA.)

    i knew all this a long time ago, i had sisters, could even add 2 or 3, but had never thought of it in the aggregate. it’s overwhelming.

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  52. OzarkHillbilly says:

    @grumpy realist: i see now you beat me to it. sorry, i had surgery today. running behind the curve.

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  53. OzarkHillbilly says:

    @James Pearce: you should talk to some women. either that or just shut the f up.

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  54. James Pearce says:

    @HarvardLaw92:

    At this point I can’t tell whether they are stalling for time, in hopes that this will eventually clear the way for confirmation because they don’t expect it to produce anything useful, or they’re preparing to throw him under the bus because they know that it will do so.

    President Garbage on the Offical Government Garbage Machine: “Just started, tonight, our 7th FBI investigation of Judge Brett Kavanaugh. He will someday be recognized as a truly great Justice of The United States Supreme Court!”

    @OzarkHillbilly: Go for a walk, dude.

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  55. MarkedMan says:

    I’ve been off the intertubes most of the day, as I was nauseated by the whole spectacle yesterday. Two comments:
    1) Lindsey Graham did a mirror universe version of “Mr. Smith Goes to Washington”. He was astoundingly effective in giving a speech in support of a totally evil agenda. (Mirror Universe? Opposite Day? What is that Star Trek thing called where Kirk wears the evil goatee and Spock tries to kill him?)
    2) James’ comments above are exactly why I read this blog. Not because (in this particular case) he comes out pretty much exactly where I did. But because he “shows his work” and deals with things honestly. It means he will never be on Fox News’ or CNN’s speed dial, but when you look at the pathetic losers on there (regardless of political stripe) that’s pretty much a good thing.

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  56. OzarkHillbilly says:

    @James Pearce: i know some non-deplorable conservatives (pretty sure far more than you), they all say you are full of shit.

    i have come to the conclusion that everybody else was right and i was wrong. nothing you say is ever worth reading. the fact that a stopped clock is right twice a day doesn’t mean they are worth paying attention to.

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  57. Just nutha ignint cracker says:

    @Lounsbury: He was always a poor choice by any measure that anyone would want to use except for the two most important ones in this particular case.

    1) He seems to be a partisan Republican who has no trouble using that part of his nature to inform his view of legal matters.

    ETA: Basically correct on the usefulness of polygraph testing; which is why it would be so devastating in Kavanaugh’s case. He can’t even control his anxiety in a room full of men agreed that they don’t care what evidence is presented against him.

    2) Trump seems to believe that he holds the same types of authoritarian views that Trump does.

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  58. James Pearce says:

    @OzarkHillbilly: I’m not a doctor, but maybe you should be doing something else right now.

    I know, I know. I always say that…..

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  59. Just nutha ignint cracker says:

    @george: When Lindsay, Mitch, and the boys finish railroading this nomination through, it’ll be close enough to getting away with it to suit me. I hope they don’t but am pessimistic by nature.

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  60. OzarkHillbilly says:

    @James Pearce: if you had anything of substance to say, you would have by now. but you don’t. that fact alone speaks louder than words.

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  61. Liberal Capitalist says:

    @HarvardLaw92:

    Trump has, surprisingly, ordered an FBI investigation.

    I am completely floored.

    It has to be that he has been advised that it’s the only way for him (Trump) to come out of this looking good.

    The results will have Kavanaugh
    withdraw, and Trump will be able to continue to fail against the FBI (… and fundraise).

    That will allow him the cover he needs to keep his base riled-up.

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  62. Eric Florack says:

    @Lounsbury: true especially when the guy operating the polygraph turns out to be an operative for the Democrats

    As to the rest of you….

    Just for the sake of argument let’s assume that the new FBI investigation finds nothing of consequence, just like the last seven times. Does that mean the Democrats would vote to confirm him?

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  63. Eric Florack says:

    And you know, thinking back I can recall the time what a president of the United States of all things, jammed his finger in the air, and angrily denied ever having sex with that woman. Of course everybody believed him on the left because “right-wing conspiracy”

    Funny how all that changed, innit?

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  64. Lounsbury says:

    @Eric Florack: No, you drooling partisan troll idiot, that is something from the dim-witted magical thinking of the sub-literate conspiracy mongerers.

    Polygraphs are simply without any basis in science as to the pretension of judging truthfulness or not. That is the science.

    Idiotic, whiny complaints and ridiculous conspiracy mongering worthy of the equivalent sub-literate Bolsheviks chasing after capitalist spies have nothing to do with this.

    The sad fact the American right party has been taken over by the right equivalent of Bolshevism, with all the moronic magical partisan thinking and whiny conspiracy mongerering as explanatoin for their failures, is sad and pathetic. Like you in particular.

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  65. george says:

    @grumpy realist:

    Actually a pretty good way to give men who don’t already understand an insight into it is to have them walk alone through their local hood at night. A lot of those precautions are ones that most men (who aren’t in gangs themselves) take in those areas, but that middle class men never experience. I think it’d give them a brand new perspective, especially with the realization that for most women most of the world is ‘the hood’.

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  66. george says:

    @Just nutha ignint cracker:

    His outburst should disqualify him for the supreme court on character alone. But this is so political (ie the GOP thinks they’ll lose their base if he isn’t pushed through) that his character is irrelevant to them. Their reaction would be exactly the same whether he had the outburst or not – for them its a team game and you support the team, even if the player is an asshole.

    Based on his outburst in public, I suspect almost everyone who’s ever had to deal with him (including the GOP senators) dislike him personally. But they’re no more going to let that stop them from supporting him than an NFL front line is going to stop blocking for a running back they dislike.

    One solution is to get them to see their team as America rather than the GOP. Not holding my breath on that one. So I go with the other obvious solution – beat them in the next election.

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  67. James Pearce says:

    @OzarkHillbilly:

    if you had anything of substance to say, you would have by now. but you don’t. that fact alone speaks louder than words.

    Substance, huh? Like “You should talk to some women or stfu?” That kind of substance?

    Just cuz you don’t like what I have to say doesn’t mean I don’t have anything to say.

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  68. george says:

    @Lounsbury:

    Polygraphs are simply without any basis in science as to the pretension of judging truthfulness or not. That is the science.

    When I was at university the college of law brought in a lie detector test and tester as an experiment, and tested volunteers with it. I never took it, but I heard that it was slightly but not much better than random. One of the guys (I was studying physics at the time) was able to ‘truthfully’ say he was the reincarnation of Albert Einstein – something he joked about for the rest of the year.

    I tend to believe Ford, but the lie detector test does nothing to make me either believe or disbelieve her – they’re junk science.

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  69. wr says:

    @george: “Based on his outburst in public, I suspect almost everyone who’s ever had to deal with him (including the GOP senators) dislike him personally.”

    I doubt that. My guess is that most of the people who know him have never seen this side of him. He’s a creature of privilege, and I’m sure he hangs out with other creatures of privilege, and no one ever challenges his presumption of excellence. He’s probably the husband, father and coach he describes himself as — and he’s done terrible things to people who are beneath him, but he can’t be bothered to remember them and the people who hang around with him don’t care.

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  70. grumpy realist says:

    @wr: That’s why this “one more week of FBI investigation” is probably nothing more than Kabuki theatre. That’s too short a time to do any real investigation.

    I’m afraid that we’re gonna get the Kav on SCOTUS no matter what. The only thing I can hope is that he realises he’s going to have to be very very careful in his decisions not to reinforce the image of himself as a partisan nitwit. (His decisions on the Appeals Court have, for the most part, been pretty good.)

    And I do hope that this whole brouhaha will make people realise exactly how much damage the frat-boy culture and “boys will be boys” attitude does and steps will be taken to stop it.

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  71. Teve says:

    @OzarkHillbilly:

    OzarkHillbilly says:
    Friday, September 28, 2018 at 20:53
    @James Pearce: bullshit.

    That comment can be pasted in most threads. 😛

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  72. James Pearce says:

    @Teve:

    That comment can be pasted in most threads.

    Why? Is “Pearce, you’re a ______” too hard to type?

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  73. george says:

    @wr:

    He’s a creature of privilege, and I’m sure he hangs out with other creatures of privilege, and no one ever challenges his presumption of excellence.

    I kind of doubt that. I know that elite engineers and elite athletes regularly challenge others presumption of excellence, at least until its proven without doubt (and sometimes not even then, there are some very high level academic feuds). In fact, the higher you go the more competitive it gets, and the more you’re challenged until you’ve shown that you do in fact belong at the top (Einstein’s excellence wasn’t challenged much once he was established – or Michael Jordan’s – but both were challenged a lot on the way up).

    Assuming that the world of law is as cutthroat at the top as engineering or professional sport, I’d assume he’d have been challenged a lot, and shown the same outbursts along the way.

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  74. One American says:

    @HarvardLaw92: Maybe he is trying to accommodate all the bizarre screeching from looney left.

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  75. DrDaveT says:

    @James Pearce:

    You should probably talk to some non-deplorable conservatives…

    As usual, you have it exactly backwards. The deplorables aren’t the problem here — they’re quite up front about not giving a rat’s ass about mistreatment of women.

    The non-deplorable conservatives are the heart of the problem. They’re the enablers, with their calm, rational skepticism that anything like that ever happened, or that it does happen a lot, or if it does that it happens outside the inner cities. Their predictable “reasonable doubts” in every single case* do far more to perpetuate the state of affairs so clearly described at balloon juice than the overt misogyny of the deplorables.

    *Well, every case not involving a friend or relative. The strongest distinguishing feature of conservatism is its lack of empathy outside the clan; principles are absolute only until they are personal. Ayn Rand had no qualms accepting public assistance; Dick Cheney hated teh gays until his daughter came out; etc. etc. ad maximum nauseum. A conservative is a liberal with a really small notion of ‘tribe’.

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  76. MBunge says:

    His failure to do that—instead lashing out at the injustice of it all—is on him.

    Why am I not surprised that when faced with a choice of either acknowledging how bizarre and out-of-control out political establishment has become or throwing an individual of previously unimpeachable character under the bus based on entirely non-credible accusations, James Joyner takes the latter option?

    And…

    My impression this morning, that he’ll simply be viewed as illegitimate by a huge swath of the country who see him as a symbol of sexual assault, has been reinforced.

    …what about the huge swath of the country who will simply view this as the public character assassination of someone for the sin of being white, male, and conservative and consider this a declaration of political/cultural war? There is little evidence that the people who believe Dr. Ford are substantially greater in number than the people who believe Judge Kavanaugh. Why does the outrage of one group automatically get a veto over the other?

    Mike

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