Sunstein’s Muddled Take on Kavanaugh

I'm not the only one confused on what to do about the allegations against President Trump's nominee to replace Anthony Kennedy.

As detailed in a post this morning, my thoughts on the accusations against Brett Kavanaugh are complicated. But Cass Sustein takes muddled to a whole new level in his Bloomberg column “Senators Are Asking the Wrong Question on Kavanaugh.”

After several paragraphs of throat-clearing, he gets to a point:

Suppose that a president, considering a large number of possible nominees, concludes that there is a 30 percent chance that an accusation against an otherwise superb contender is true. No president would be likely to nominate such a candidate. Apart from the inevitable political fight, no president is likely to think that of dozens or hundreds of highly qualified people, the very best choice for such an important position is someone who might well have committed a violent crime.

We could make the case harder by lowering the probabilities. Suppose that a president thinks that guilt is 20 percent likely, or 10 percent likely, or 5 percent likely. If the number approaches zero, a president might proceed to nominate the individual in question, thinking: I am not going to make my decision on the basis of unfounded accusations. But if the president believes that the likelihood of guilt is significant, another candidate will be chosen.

I’m with him so far.

That brings us to the key question: Is the U.S. Senate any different?

Suppose that senators believe that the allegations are probably false, but 30 percent likely to be true. There is a strong argument that confirmation would be a terrible idea. Why should the Senate consent to a Supreme Court appointment for someone who might well have committed a disqualifying act?

He answers his own question:

There are two countervailing considerations. First, a refusal to confirm a nominee is a pretty hostile act — especially if it is based on an accusation of criminal behavior. It is far more personal, and much more of a negative stain, than a president’s decision not to nominate someone in the first instance. Reasonable senators might well be reluctant to vote against a nominee on the basis of an accusation that they do not, on balance, believe to be true.

Second, the Senate owes the president a degree of deference. We can argue about how much. But the president’s job is to select the very best person for the job, which means that he has discretion to decide against potential nominees for any number of reasons. The Senate’s job is much narrower. It is to decide whether the president’s choice is unfit for the job.

Correct.

In practice, the Senate can reject any nominee—or, as demonstrated with the Merrick Garland precedent, simply refuse to so much as vote on the matter—for any reason it wants to. But the proper role of the Senate is simply to serve as a check on the President’s appointing a crony or someone otherwise unfit. Having a single, uncorroborated accusation of a crime surely isn’t evidence of lack of fitness.

These considerations suggest that senators might think that if a nominee to the Supreme Court has been accused of a disqualifying crime, the question is: Is it more likely than not than he did it? That’s not crazy, but on reflection, it’s probably wrong.

The Senate isn’t a court of law. Senators are entitled to vote against confirmation of a Supreme Court nominee if they conclude that there is an undue risk that a nominee would be careless with the law, unfair to litigants or some kind of extremist.

But . . . those are wholly separate questions. Kavanaugh has been a practicing lawyer and judge for decades. The Senate can judge whether he’d be careless with the law, unfair to litigants, or is “some kind of extremist” based on his long career. If they’re going to reject him based on a single allegation of sexual assault, then they ought believe it more likely than not that he’s guilty of that crime.

If senators conclude that there is a significant chance that a nominee committed a crime of violence, they are also entitled to oppose confirmation — even if they think it more likely than not that the nominee is innocent.

That’s . . . just nuts.

Again, there’s nothing practical stopping Senators from opposing Kavanaugh for any damn reason they want to.  But “Eh, he probably didn’t rape anyone but, who knows, anything’s possible I guess” is a particularly shitty reason.

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

Comments

  1. dazedandconfused says:

    Agree, but suggest “…a pretty s-ty rationalization.”

    Reason left town some time ago. I think a valid reason might be pay-back for Garland, however. Payback is called for on that one, however unfair it might be for Kavanaugh personally. It’s the Big Leagues and he needs to be wearing his big boy pants for this.

    9
  2. Todd says:

    If senators conclude that there is a significant chance that a nominee committed a crime of violence, they are also entitled to oppose confirmation — even if they think it more likely than not that the nominee is innocent.

    That’s . . . just nuts.

    As I said in the other post, there has to be a different standard.

    In a criminal case, even “he probably did it” shouldn’t be good enough to convict (although it too often is).

    But when we’re talking about a lifetime appointment to the Supreme Court, “there’s a not unreasonable chance that he might have done it” really should be more than enough to derail a nomination.

    Also, this would be a different debate if Kavanaugh had initially come out with a statement along the lines of “yes, I knew her in High School, but I don’t remember things the same way she does”. But by issuing an unequivocal denial, we are now at the point where one of them is lying … and if her story continues to appear credible, that would mean that Senators are voting to put a (probable) liar on the Supreme Court. That’s not acceptable.

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  3. Ben Wolf says:

    Kavanaugh is not a superb candidate, unless one is living in a monarchy. The man is a lunatic who advocates the expansion of state power into every aspect of our lives, the domination of corporate central planning over workers and citizens and a presidency immune to law.

    No patriot can be opposed to derailing this nomination by any means necessary, and that goes for every other anti-democratic shill the Republicans have on the candidate list.

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  4. Jay L Gischer says:

    James, I think “the proper role of the Senate” has left the building. It hasn’t been seen in regard to SCOTUS nominations in quite some time.

    The Court has become more and more partisan, and Bush v. Gore is a pivotal moment in that.

    I think it’s odd that Kavanaugh’s long-time friend Mark Judge (if you wrote this stuff in fiction, readers would protest at the artifice!) isn’t going to testify. He’s written a memoir about how he was blackout drunk all the time. To me, this is corroboration. I think it’s very odd that he isn’t going to testify before the Senate, since Ford says he was there. He doesn’t want to go on record, under oath, saying it didn’t happen? Why is that?

    At the same time, I think the probable outcome is that he gets confirmed, and it ends up being more fuel for the flames in 6 weeks. R’s will likely lose the Senate over this.

    10
  5. James Joyner says:

    @Todd:

    But when we’re talking about a lifetime appointment to the Supreme Court, “there’s a not unreasonable chance that he might have done it” really should be more than enough to derail a nomination.

    Why?

    But by issuing an unequivocal denial, we are now at the point where one of them is lying … and if her story continues to appear credible, that would mean that Senators are voting to put a (probable) liar on the Supreme Court. That’s not acceptable.

    But that’s a different bar than Sunstein is setting. A preponderance of the evidence isn’t 30%; it’s 51%.

    @Ben Wolf:

    No patriot can be opposed to derailing this nomination by any means necessary, and that goes for every other anti-democratic shill the Republicans have on the candidate list.

    But that’s an argument against Kavanaugh’s ideology, which is entirely a separate issue.

    @Jay L Gischer:

    James, I think “the proper role of the Senate” has left the building. It hasn’t been seen in regard to SCOTUS nominations in quite some time.

    Fair enough. But Sunstein is specifically arguing that this would be a proper move for the Senate in the context of longstanding norms.

    2
  6. That’s . . . just nuts.

    I don’t think it is, and here’s why: we are talking about a position on one of the most powerful bodies in the world (certainly within the US). No nominee is owed the seat. A credible allegation simply means that the president can nominate someone else who will be confirmed.

    I think we get too focused on the specific nominee.

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  7. @Todd:

    Also, this would be a different debate if Kavanaugh had initially come out with a statement along the lines of “yes, I knew her in High School, but I don’t remember things the same way she does”. But by issuing an unequivocal denial, we are now at the point where one of them is lying … and if her story continues to appear credible, that would mean that Senators are voting to put a (probable) liar on the Supreme Court. That’s not acceptable.

    Exactly.

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  8. smintheus says:

    You’re the one who’s nuts. A single accusation is evidence, per se. People will judge the strength of that evidence in different ways, but it’s simply false to claim it is not evidence Kavanaugh is unfit. Furthermore, it is a corroborated rather than as you claim an uncorroborated accusation. You should look the word up. It does not mean “proven”, it means “strengthened” or “supported”. The accusation is corroborated in various ways, most obviously by the fact that the accuser has made the allegation many times over the years, beginning at least as early as 2002, in ways that she was not seeking to inflict any harm on the accused. Her description of Judge and Kavanaugh as extreme drunkards also appears to be corroborating information.

    As for your final argument, “he may well have tried to rape that girl, and he and his friend may well have kidnapped that girl, and he and his friend may well have conspired together to rape and to kidnap that girl” is a pretty reasonable argument for rejecting Kavanaugh. Just as, for example, “he may well have worked with Yoo and others to create and justify the torture program” is a good reason to reject him, and “he may well have perjured himself repeatedly during his Congressional hearings” has reasonably convinced many people to reject him.

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  9. Mark Ivey says:

    The GOP is gonna do Anita Hill 2. Sad.

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  10. James Joyner says:

    @Steven L. Taylor:

    A credible allegation simply means that the president can nominate someone else who will be confirmed.

    I think we get too focused on the specific nominee.

    It’s certainly true that Trump can simply nominate someone else. But I think that 1) Presidents are entitled to have qualified nominees confirmed and 2) Nominees are entitled to the presumption of innocence. That’s especially true when, as here, we have a long history in public life.

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  11. @James Joyner:

    Why?

    Because if there are credible allegations of this nature against a nominee, the benefit of the doubt should not go to someone who will serve in a major constitutional office for 25, 30, even 40 years–especially not when someone not tainted can get the same job and do it with the same qualifications, both professional and ideological.

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  12. @James Joyner:

    Nominees are entitled to the presumption of innocence

    This is not a court of law. This is a process to determine if an individual can have 1/9th of the power to say what the Constitution of the United States means for a quarter century or more.

    Since Trump can appoint a replacement, let him. In fact, politically, I think it is the right play for the GOP. If they ramrod someone accused of sexual assault through the process on the eve of Year of the Woman II, it will not help their cause electorally.

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  13. NW Steve says:

    @Mark Ivey:

    The GOP is gonna do Anita Hill 2. Sad.

    Completely agree. (and to be fair, there was Democratic complicity in that one). The good news is that it will come at a cost to them this time.

    2
  14. James Joyner says:

    @smintheus:

    As for your final argument, “he may well have tried to rape that girl, and he and his friend may well have kidnapped that girl, and he and his friend may well have conspired together to rape and to kidnap that girl” is a pretty reasonable argument for rejecting Kavanaugh.

    Being accused of something is far different than “may well have.”

    @Steven L. Taylor: @Steven L. Taylor: I agree that it’s not a court of law. If enough Senators believe Kavanaugh is lying, they ought vote against him even if they wouldn’t rule against him in a criminal, or even civil, trial. But that’s a different thing than Sunstein is arguing, which is that, if they think there’s even the remotest chance his accuser is telling the truth, they should reject him. That’s just un-American.

  15. @James Joyner: I think Sunstein muddles things with some of the percentage talk, but this is not unreasonable:

    If senators conclude that there is a significant chance that a nominee committed a crime of violence, they are also entitled to oppose confirmation — even if they think it more likely than not that the nominee is innocent.

    It all depends on what “a significant chance” means to individual Senators.

    Again: we are talking a remarkable amount of power for a very lengthy amount of time.

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  16. Gustopher says:

    At the point where a very lightly corroborated accusation can derail someone’s career, things have gone too far.

    But, the lightly corroborated accusation should be investigated further, especially when the stakes are as high as a lifetime appointment to the Supreme Court.

    We know that Kavanaugh has a lifelong friend in a scumbag who photographs women on subways, says that many women who say no are really just waiting for a real man to ignore the no, and who was a blackout drunk during the period in question. And was said to be in the room.

    I don’t want to damn someone by association, but you pick your friends for a reason, and most people would have dumped Mike Judge by now. I’m comfortable being suspicious of someone by association.

    It’s worth having someone impartial poke around there, contact the people who knew Kavanaugh at the time, and see if his role is even plausible.

    It’s also worth having someone impartial poke around Ms. Ford’s past. Is she just crazy? Has she made similar accusations towards someone else?

    And, it’s worth noting that people are going to be far more likely to talk to an investigator who asks them, then they are to come forward in this very visible climate.

    If nothing comes up after an investigation, and it remains a single lightly corroborated accusation — well, then I think he should be voted down for a dozen other reasons, but not this one.

    10
  17. Raoul says:

    The idea that there is a 30% chance he did it or not is not a proper paradigm simply because those numbers represent a a priori subjective rationalization. That is your vote will determine your belief of the allegation. A better view is simply to put what we know together and based one’s judgment on that. Since she mentioned the story several times before the appointment, named a witness and knowing that the nominee was a party animal at the time I will posit that we all know something happened.

    1
  18. MBunge says:

    @Steven L. Taylor: I think we get too focused on the specific nominee.

    I have no idea what you’re focused on, since you seem to be endorsing the principle that ANY nominee for the Supreme Court should be disqualified for ANY allegation of wrongdoing.

    This is an allegation involving a drunken groping of a 15-year-old by a 17-year-old being made 30 years after it supposedly happened. The accuser can’t say specifically when it happened. She can’t say specifically where it happened. She can’t say specifically how she got to or from where it happened. Every other person named as being involved/connected to the allegation is denying it. And, let’s not forget, the accuser is now refusing to testify under oath about the allegation until the FBI investigates AND EVEN DOUG MATACONIS RECOGNIZES HOW SILLY THAT IS.

    And by the way, we’re also talking about staining a man’s reputation forever based on…what?

    Your inability to think beyond the moment is stunning. Did the “borking” of Robert Bork have an affect on future Supreme Court nominees? Yes. Nominees now routinely obfuscate and practically lie during their confirmation hearings. What impact do you think disqualifying Kavanaugh on THIS basis will have?

    Mike

    3
  19. James Joyner says:

    @Steven L. Taylor: I basically agree with @Gustopher on this. Clearly, there’s enough reason here to merit a delay in the vote in order to do a more thorough investigation. As noted in my previous post, I think it’s simultaneously possible that Ford is telling the truth as she believes it and that Kavanaugh is innocent of the charges leveled against him. If they’re true, they’re certainly disqualifying.

    1
  20. Todd says:

    If Republicans were always so adamant about the presumption of innocence (especially when the accused is poor and/or a minority) it might be a little easier to have this debate with a straight face. But we currently live in a world where people who happened to be born in south Texas and have hispanic sounding names are being denied passports because their official U.S. birth certificates are not considered good enough proof that they are American citizens.

    I’m sorry, but with this story it takes more effort to try to believe that a rich kid in all-boys high school couldn’t possibly have done something like this, than to just admit “yea, I could see that happening”.

    In other words, if we’re talking preponderance of the evidence, there is much greater likelihood that he’s lying than she is. And that’s the key, because it’s not a question of “how likely is it that he did this 35 years”, it’s a question of who’s lying, now, today … and that’s a 50/50 proposition.

    25
  21. James Joyner says:

    @MBunge:

    And, let’s not forget, the accuser is now refusing to testify under oath about the allegation until the FBI investigates AND EVEN DOUG MATACONIS RECOGNIZES HOW SILLY THAT IS.

    I think it’s entirely reasonable that a woman who, until this past weekend, had not gone public with her charges is scared out of her mind at the prospect of the spectacle that is a Senate hearing. She’s likely got nothing to offer that she hasn’t already gone public with. It’s essentially all downside for her.

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  22. KM says:

    @James Joyner:

    But when we’re talking about a lifetime appointment to the Supreme Court, “there’s a not unreasonable chance that he might have done it” really should be more than enough to derail a nomination.

    Why?

    Why the hell not?

    Y’all act like he’s being cheated out of his due. You are not entitled to a spot on the SC. I’m not entitled to a spot on the SC and Kavanaugh isn’t either. The assumption should be “prove you deserve it”, not “prove you don’t”. If there’s anything that hints he may not deserve it, it should be addressed as required because this is life and no take backies. This man will be making decisions that affect us and our children for generations and that’s not hyperbole. Think of how many SC decisions get over-turned and the precedent they set…. then realize giving someone that kind of power means that maybe, just maybe we should be as sure as possible they’re not creepy asshats.

    I say it again, you are NOT entitled to a spot on the SC just because you were nominated. It’s an interview for a lifetime job you can fail, not a waste of time while you mentally pick out the new curtains in your office. Like any job interview, it should be run that we *want* to hire you but we’re trying to see if anything will bite us in the ass *before* we become legally bound together.

    There’s a real sense of entitlement that’s coming out along with the usual misogyny. It’s the kind that reared it’s ugly head in the Brock Turner trial – that a man’s future prospects and career shouldn’t be damaged or impeded because of “those women”. Kavanaugh’s only a sure bet because of current GOP control of Congress. Does anyone *really* think that if the makeup was different, he wouldn’t have been encouraged to GTFO while they lined up a better choice? Of course not or they wouldn’t be trying to ram him through ahead of the elections! Where’s Trump’s short list? Did all those people suddenly become unavailable that they’re willing to endure such bad press for this one guy?

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  23. smintheus says:

    @James Joyner: A credible and *corroborated* (yes) accusation = “he may well have”

    You’ve yet to concede that the accusation is in fact corroborated.

    2
  24. Andre Kenji de Sousa says:

    I bet that a large number of people commenting here could not legally drink or could not even drive in 1987, when the guy that Kavanaugh wants to replace, was nominated to the Supreme Court. The standards here should be the highest possible.

  25. @James Joyner: I would agree, as I noted on one of DM’s posts, that a further investigation is warranted.

    I do think this is unlikely to happen, so I think that provides enough of a reason to vote against (for, perhaps, Collins, Flake, etc.). Again: the practical consideration is that Trump will appoint another nominee with similar judicial and ideological positions.

    6
  26. @MBunge:

    since you seem to be endorsing the principle that ANY nominee for the Supreme Court should be disqualified for ANY allegation of wrongdoing.

    Actually, that isn’t what I said. The issue is not accusations. The issue is one of credible accusations and what the Senate needs to do with it.

    This is an allegation involving a drunken groping of a 15-year-old by a 17-year-old being made 30 years after it supposedly happened.

    The allegation is sexual assault. This is no small thing.

    Moreover, the problem at the moment is that it is possible that Kavanaugh is lying. That is no small thing in context. We can either do the work to make sure that he isn’t, or we can move on to the next nominee.

    Your inability to think beyond the moment is stunning.

    Quite frankly, I think I am one of the few not focusing on the moment. I am pointing out, ultimately, that the GOP probably should move on, as they will be able to nominate someone else.

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  27. Ben Wolf says:

    @James Joyner: You are caught in an illusion to think Kavanaugh or anyone else separates their professional actions from their ideology. Bad thinking means bad actions

    4
  28. smintheus says:

    @James Joyner: I note that your explanation for Ford’s thinking rejects what Ford and her lawyer said were her reasons, and instead substituted your own imagination. Pretty condescending, particularly since her reasons were cogent and grounded in facts: Republicans already made clear that they refuse to believe her and launched attacks on her integrity, so why would she assume that they would now investigate the facts impartially? You’d have to be nuts to think that the GOP is acting in good faith. She made the allegations public, she said, because she felt it was her civic duty. Therefore it’s also her civic duty to ensure that the facts are adequately investigated, is it not? But you treat her claim of civic-mindedness as a sham. Why?

    10
  29. @KM:

    I say it again, you are NOT entitled to a spot on the SC just because you were nominated. It’s an interview for a lifetime job you can fail,

    Exactly.

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  30. smintheus says:

    @Steven L. Taylor:

    The allegation is sexual assault.

    One part of the allegation. The rest is that Kavanaugh conspired with Judge to kidnap (locked the door and restrained) and conspired to rape. Also, simple assault. It’s a string of crimes being alleged, some of them felonies. I’m astonished at how little attention is being given to the element of conspiracy; it speaks to mens rea.

    7
  31. James Joyner says:

    @Raoul:

    Since she mentioned the story several times before the appointment, named a witness and knowing that the nominee was a party animal at the time I will posit that we all know something happened.

    The witness has denied the story, unless there’s another witness named?

    @smintheus: I don’t know what you’re talking about. I’m just saying that there would be good reason for someone in her position, even fully confident in her version of events, to not want to suddenly be thrust into the spectacle of a Senate hearing. Hell, I wouldn’t want to be in front of a hostile Senate with three days’ notice.

    2
  32. @MBunge:

    What impact do you think disqualifying Kavanaugh on THIS basis will have?

    To be fair with you, despite the fact that you are rarely fair with me, this is not an unreasonable point.

    I suspect that no matter what happens here this will not be the last time past allegations like this emerge. By the same token, it happened in the 1990s and didn’t happen again until now.

    Regardless, I think that the operative question is what to do about this seat and this nominee.

    Again: Trump can appoint someone else and the overall result will be: a 5-4 conservative court.

    8
  33. Todd says:

    @Steven L. Taylor:

    I am pointing out, ultimately, that the GOP probably should move on, as they will be able to nominate someone else.

    Politically, that would seem to be their best move.

    The fact that they’re not willing to make it probably says a whole lot about their lack of confidence that they will actually hold the Senate in the upcoming elections. Ironically, I think pushing Kavanaugh through (especially if a hearing never happens) probably make Democratic control more likely.

    4
  34. @Andre Kenji de Sousa:

    I bet that a large number of people commenting here could not legally drink or could not even drive in 1987, when the guy that Kavanaugh wants to replace, was nominated to the Supreme Court. The standards here should be the highest possible.

    So much this. This is the point.

    I could drive in 87, but could not yet drink.

    4
  35. smintheus says:

    @James Joyner: She already agreed to testify before the Senate, in principle, so she decided she was ok with it. She and her lawyer indicated quite clearly why they refused to allow Grassley to set up a “railroad”, as Grassley clearly has been trying to do.

    4
  36. James Joyner says:

    @KM:

    Y’all act like he’s being cheated out of his due. You are not entitled to a spot on the SC.

    I’m not arguing that he’s entitled to be confirmed. I’m arguing that he shouldn’t be denied confirmation based on a single allegation that the Senate doesn’t believe likely to be true. In Sunstein’s formulation, even if they think there’s the teeniest chance he committed the offense, they should reject him. I think that’s a terrible, un-American standard.

    It’s an interview for a lifetime job you can fail, not a waste of time while you mentally pick out the new curtains in your office.

    I don’t think the “job interview” analogy is correct. I think it’s more of a reference check for someone who has already been offered the job by the CEO. But, sure, it’s failable. Again, if a significant number of Senators think he’s guilty of the crime, I agree they should vote against him. But that’s not Sunstein’s formulation.

    @smintheus: No, I don’t think the same person saying the same thing multiple times counts as corroboration.

    1
  37. OzarkHillbilly says:

    In practice, the Senate can reject any nominee—or, as demonstrated with the Merrick Garland precedent, simply refuse to so much as vote on the matter—for any reason it wants to. But the proper role of the Senate is simply to serve as a check on the President’s appointing a crony or someone otherwise unfit. Having a single, uncorroborated accusation of a crime surely isn’t evidence of lack of fitness.

    Sorry James, that is so obviously horseshit I’m surprised you wrote it. You can’t have it both ways. Either the Senate should defer to the President if a candidate is to all appearances fit, OR they can do whatever the fuck they want.

    Back to finish reading your post.

    6
  38. smintheus says:

    @James Joyner: The witness issued a classic non-denial denial. He said he didn’t recall it, and then that he didn’t actually see the attempted rape (in other words, that he didn’t recall seeing it). Judge never actually denied that the events occurred or that he was there. What he wants is for people to infer that he meant to deny it. He was not under oath and he was not being subjected to careful questioning. His statement if anything raises suspicion rather than lowering it.

    6
  39. Michael Reynolds says:

    Republicans have interesting ideas on what constitutes a reasonable amount of evidence. When it’s a white, male conservative the accusation must be proven beyond a reasonable doubt. When it’s a black man or a woman or an immigrant or a Muslim the merest suspicion – even when accompanied by zero evidence – is proof of guilt.

    @MBunge is happy to see a black man gunned down for the suggestion that maybe he sort of looked like he might have a weapon.

    The inability of a vast number of Americans to think clearly about a single goddamned thing is depressing. The human mind, the greatest intelligence we know of, now supplemented by instant, 24/7 access to just about all of human knowledge, and people are still scarcely brighter than chimpanzees. So. Much. Stooopid.

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  40. smintheus says:

    @James Joyner: Then you’d be wrong. Courts of law do treat consistency of statements, and how far back the statements go, as corroborating elements. For example, if you type up personal notes of a meeting that had just concluded, that account is given some significant weight if there is a later dispute about what was said at the meeting…though it is just your word.

    4
  41. @James Joyner:

    I think it’s more of a reference check for someone who has already been offered the job by the CEO

    I think that is waaaay too lax an analogy. Maybe for the cabinet, but not for SCOTUS.

    I think you are discounting that this is about occupying a seat in a constitutional branch. I think you are overly conflating this with cabinet secretaries and ambassadors. All fall under the advise and consent power, but this is not about helping the president run the executive branch for four years. This is about running a constitutional institution for the next 25-40 years.

    12
  42. smintheus says:

    @Michael Reynolds: A few days ago Republicans were complaining to high heaven that it was unfair to pay any attention to the accusation against Kavanaugh because it was “anonymous”. It wasn’t anonymous, but that was the basis for their complaint. Then the moment they learned the accuser’s name, they began rooting around in anonymous student evaluations (of somebody with a similar name) looking for any comments they could use to smear the accuser with.

    8
  43. James Joyner says:

    @OzarkHillbilly:

    You can’t have it both ways. Either the Senate should defer to the President if a candidate is to all appearances fit, OR they can do whatever the fuck they want.

    Those are completely different things. Sunstein’s column and my take on it are based on what the rules ought to be. I’m simply acknowledging that the rules aren’t followed and Senators are free to vote as they please for whatever reason they please.

    1
  44. James Joyner says:

    @Michael Reynolds: While I agree that there are inconsistencies in how people justify these things, there are often legitimate differences. The standard of proof in a criminal court is “reasonable doubt,” which is rightly very high. In a civil trial, it’s “preponderance of the evidence,” which is just more than 50-50. I think the court of public opinion is something like preponderance but mixed in with other prejudices.

    So, while I think Zimmerman murdered Treyvon Martin, I’m not sure I would vote to convict in a criminal trial. Ditto almost every one of the highly publicized cases of cops killing black men; indeed, the burden seems to move even higher when it’s a cop because of the “thin blue line” argument.

    In the case of Kavanaugh, I think he’s entitled to be believed even while I think the same of his accuser. While being denied a seat on SCOTUS is hardly the world’s biggest setback, it would be an unjust outcome if this is a case of false memory or mistaken identity.

    2
  45. James Joyner says:

    @Steven L. Taylor: I grant that lifetime appointments deserve greater scrutiny but have always believed presidents are entitled to have qualified nominees confirmed. It’s true that the Supreme Court has taken on an outsized role in our policy, beyond what the Framers could reasonably have envisioned. But the “advise and consent” language is identical for cabinet officials and judicial posts.

    3
  46. MBunge says:

    I think Ann Althouse raises a pretty decent point here:

    https://althouse.blogspot.com/2018/09/do-liberal-media-notice-elitism-oozing.html

    Mike

    1
  47. @James Joyner:

    But the “advise and consent” language is identical for cabinet officials and judicial posts.

    But the offices aren’t–and that was true in 1789.

    Surely the standard of advise and consent for a SCOTUS Justice is higher than for the Secretary of Transportation?

    11
  48. Gustopher says:

    I do think that if there was an honest investigation, this wouldn’t be a hard decision at all.

    They are likely to find a 17 year old trying to act like a drunken frat boy, with no respect for women that he felt were beneath him. They are likely to find that he was friends with the noted scumbag for a reason — he was also a scumbag — and that everyone knows this, but no one wants the media scrutiny. I doubt this was the only case.

    The attacks on Ms. Ford are an attempt to keep other women from speaking. The open hearing, without any investigation, is designed to say “There is a cost to speaking out, and that cost is high. Also, you’re a little bit nutty and a little bit slutty.”

    That said, perhaps I am wrong. Perhaps Kavanaugh was always gently chiding Mike Judge with “we may be drunken, irresponsible, horny teenagers, but there’s a line we shall not cross, man”. Perhaps Ms. Ford is making up the allegations, or has twisted her memory of the traumatic events. Maybe.

    But the Republicans on the committee have no interest in finding out the truth.

    14
  49. wr says:

    @MBunge: “I think Ann Althouse raises a pretty decent point here:”

    She sure does. As long as by “pretty decent point” you mean “a huge glop of obfuscatory bullshit.”

    8
  50. Scott says:

    It is situations like this one where I remember Gen Curtis LeMay’s comment (perhaps apocryphal) when firing a Wing Commander: I don’t have time to differentiate between the guilty and the merely unfortunate.

    We don’t owe Kavanaugh a job and if he is turned away so be it. Besides this situation, there are intimations of fudging the truth and outright lying in various testimonies. There is the history of blatant political actions that border the inappropriate. There is just too much baggage in general. And a lot more covered up.

    If I were Ford, I would not testify at this time. To paraphrase Clarence Thomas, this is set up as a high tech political rape. These Senators have no scruples and no inhibition to violate this woman and show her her place. There is no upside for her.

    7
  51. James Joyner says:

    @Steven L. Taylor:

    But the offices aren’t–and that was true in 1789.

    While I take your point, the Court was “the least dangerous branch” during the ratification debate and for it’s first century or so. Hell, the first Chief Justice, John Jay, resigned to take the same post with the South Carolina Supreme Court. And while judicial review was established with Marbury in 1803, it wasn’t utilized against a federal statute until the Dred Scot case in 1857.

    Surely the standard of advise and consent for a SCOTUS Justice is higher than for the Secretary of Transportation?

    Overall, I’d say a SCOTUS pick should get more scrutiny. But, in the case of the present example, maybe less than the same allegation against an Attorney General nominee.

    Again, this is all theoretical. I’m arguing with Sunstein as to what the standard ought to be, not actual practice. As a practical matter, it’s almost entirely about ideology and who has the votes.

    1
  52. Tyrell says:

    Weird, ridiculous. The Senate leaders of both parties should hang their heads in shame at this Marx brothers circus. Have they completely lost their minds? Is this the best we can do? There should be a process to this and they should stick to it. This is a textbook example of what is wrong with the government. My suggestion is for Senator Funstein and some of the others on this committee to take an extended vacation on Willie Nelson’s rv.
    “On the road again!” (Nelson)
    No more lifetime federal judge positions, term limits, third party, vote them all out

  53. JKB says:

    Well, this little gambit seems to be backfiring. The Republicans who called for Ford to be able to tell her story are quite justifiably now moving to the position that if she doesn’t show, that they committee move on. So it’s back to where it was before with the wavering Republicans pushed off the fence. Democrats will scream, but they were going to do that anyway.

    The investigating body is the Senate Judiciary committee, and Ford refuses to give testimony or face questioning, even in closed session, where there won’t be jackasses in the gallery and the jackasses on the podium won’t have a reason to act out.

    Perhaps this woman was molested. It is a recovered memory after 30 years. Recovered memories are not always reliable. Her memory has not location or firm time frame. When recovered it was four boys who were now powerful in Washington society. She proffered no names at that time. And she never named Kavanaugh until he was nominated to the Supreme Court. The one other person she can name has denied it ever happened.

    And Feinstein didn’t do the woman any favors by sitting on the letter and not putting it on the record prior to the committee hearing. And apparently didn’t even have Democrat staffers (lawyers) investigate to see if they could find corroboration.

    1
  54. Gustopher says:

    @JKB: There is no evidence that this is a recovered memory. None.

    We do know that she says she hadn’t told anyone about it 2012.

    These are very different things.

    Women who are victimized in a sexual assault often feel ashamed, and are unwilling to discuss it, claim that they are leaving it in the past and that it does not affect them.

    4
  55. An Interested Party says:

    Well, this little gambit seems to be backfiring.

    Indeed…when the Democrats take the Senate away from the Republicans after they ram Kavanaugh through, it will become very apparent that perhaps the Republicans should have done a little more due diligence regarding this matter…

    2
  56. Eric Florack says:

    @dazedandconfused: by the standards you’ve applied here, garland would have been recompense for Robert Bork and the attempt on Clarence Thomas. Is that really the road you want to go down?

  57. dmichael says:

    I need to clear about my comment: I believe that as a 15 year old, she was sexually assaulted by 17 year old Kavanaugh. I believe that Judge was there and both he and Kavanaugh were blotto drunk. There is enough evidence out there to support my belief. HOWEVER, if she doesn’t appear before the Judiciary Committee, the Repubs and Kavanaugh “win” in the sense that Kavanaugh will get on the Supremes. She needs to show the public that in her testimony, she is articulate and credible. She needs to give the Repubs another opportunity to act like the misogynist a-holes that there are. It might not be enough to convince cowards like Collins and Murkowski to vote against but it could do real and immediate damage to the Repubs among voting women.

  58. Gustopher says:

    @JKB:

    And Feinstein didn’t do the woman any favors by sitting on the letter and not putting it on the record prior to the committee hearing. And apparently didn’t even have Democrat staffers (lawyers) investigate to see if they could find corroboration.

    I don’t think anyone should want this investigated by partisan staffers. The career investigators at the FBI are generally mostly impartial — they skew a bit conservative, but they generally put their duty over their politics. They are the right people to be investigating something like this (and typically, they do investigate for background checks). That investigation can then be subject to partisan oversight, to ensure that it wasn’t leaving out or discount the value of information.

    That does require both sides to be mostly honest brokers.

    I don’t understand the Republican obsesssion to get this particular troglodyte through confirmation, when there are plenty of other troglodytes out there, equally qualified, who aren’t credibly accused of attempted rape, and who don’t have as many obvious red flags.

    It’s like Scott Pruitt. Why didn’t the Republicans in Congress insist upon an honest EPA head to decimate regulations? Was there a shortage of potential candidates?

    Or, was it just a matter of wanting to demonstrate power? “We have the majority, and we can put through the most offensively corrupt individual possible, ha, suck it libtards.”

    4
  59. Just nutha ignint cracker says:

    @Todd: “In a criminal case, even “he probably did it” shouldn’t be good enough to convict…”

    I’m not sure that I will agree on this; it may depend on where one draws the line on the continuum for “reasonable doubt.” Beyond a reasonable doubt doesn’t require “I’m absolutely positive he did it.” “He probably did it–and I have been presented no counter-weight to my suspicion that he did” may make an adequate standard. At least it does to me.

    On the other hand, the last time I said that at a jury screening, the defense asked for me to be excused. The prosecution also asked when I noted the my job was teaching college frosh to write argument essays. No one wants me on a jury.

  60. MBunge says:

    So…it seems no one on the Senate Judiciary Committee outside of Feinstein HAS EVEN SEEN FORD’S ORIGINAL LETTER. Oh, and Kavanaugh has already answered questions about this from Senate staffers under penalty of law.

    https://www.judiciary.senate.gov/imo/media/doc/2018-09-19%20Grassley%20to%20Feinstein%20-%20Original%20Ford%20Letter.pdf

    Mike

  61. Just nutha ignint cracker says:

    @Ben Wolf: “… unless one is living in a monarchy.”

    And this is inconsistent with Trump’s and the GOP’s overall temperament and worldview in what way?

    3
  62. Just nutha ignint cracker says:

    @James Joyner: “The witness has denied the story, ”

    If I read his statement correctly, and I may have read it too cursorily, he didn’t deny it, he said he was too drunk to remember what happened.

    3
  63. Just nutha ignint cracker says:

    @James Joyner: ” that Republicans in the Senate doesn’t believe likely to be true don’t give a flying f6#k about the truthfulness of.

    FTFY

    1
  64. Kari Q says:

    Imagine you were hiring a financial advisor who would have some control over how your money would be handled and had tentatively chosen the individual you wanted to hire. Then you hear that person had been accused of defrauding another person. You think they probably didn’t do it. After all, they weren’t convicted of anything, and it all happened a while ago.

    Would you go ahead and hire them? Or would you hire candidate number two who was equally well qualified but had never been accused of fraud?

    6
  65. dazedandconfused says:

    If Presidents are entitled to have their nominees confirmed it will be news to Merrick Garland.

    8
  66. grumpy realist says:

    @Kari Q: Well, that’s the thing. None of the people pushing this nomination through are ever going to worry about being assaulted. In fact, I suspect a lot of them from privileged backgrounds have carried out similar (if not so blatant) activities in their own lives and are smirking at the thought of supporting Kavenaugh: “boys will be boys,” and brush it all off.

    We women, of course, are just collateral damage.

    7
  67. Andy says:

    @Todd:

    Also, this would be a different debate if Kavanaugh had initially come out with a statement along the lines of “yes, I knew her in High School, but I don’t remember things the same way she does”. But by issuing an unequivocal denial, we are now at the point where one of them is lying … and if her story continues to appear credible, that would mean that Senators are voting to put a (probable) liar on the Supreme Court. That’s not acceptable.

    The problem with your argument is that it’s quite likely that neither one of them is lying or being intentionally deceitful.

    Memory is a funny thing and when you are talking about something that happened that long ago, your mind can data-dump and recraft memories along the way. This is a fairly-well studied part of cognitive science.

    In my own case, as someone a couple of years younger than Kavanaugh, I can’t remember anything from 1982 and I don’t remember what I did over the summer when I was 17 except I know I worked at TJ Maxx and that I lost my driver’s license at some point.

    So to me, it’s not at all surprising that Kavanaugh wouldn’t remember anything for the same reasons it’s not surprising that Ms. Ford can’t remember much more than the incident itself. She has data-dumped most everything but the trauma, so we really shouldn’t be surprised that an allegedly drunk Kavanaugh can’t remember any of it. And if her description of the incident is accurate and not affected by memory recreation, then Kavanaugh might have been inebriated enough to not have remembered it the next morning.

    So I think it’s wrong to assume that one must be lying – that one of them must be the bad person and the other must be the righteous person. People are complex and I don’t think this situation fits neatly into a good-bad, honest-liar dichotomy.

    So I tend to give them both the benefit of the doubt and assume they are being honest. Kavanaugh, by all accounts, has lived an honorable life (despite what one may think of his judicial views) and the lack of any hint of an allegation of something similar in his past to this allegation suggests this isn’t a part of his character and isn’t a normal #metoo case.

    I find Ms. Ford to be credible as well and it seems her trauma from this event is genuine. But I’m not sure the credibility of this allegation is sufficient, especially if she does not testify.

    Both parties need to testify, preferably behind closed doors. Public hearings are little more campaign events and would not be productive. Then, Senators should vote their conscious.

  68. steve says:

    “I grant that lifetime appointments deserve greater scrutiny but have always believed presidents are entitled to have qualified nominees confirmed.”

    I know you want to believe this James, but this is clearly no longer true since Garland, so we have to deal with our new reality. If you have the votes, you just do what you want to do if you are willing to pay the political price.

    3
  69. Franklin says:

    I haven’t read every comment, but there was a link I saw today (maybe even in another OTB thread?) that 10% of rape accusations are false. So based on no other information, the Senators should assume that there is a 90% chance that Kavanaugh is guilty. Assuming we follow Sustein’s procedure for voting for nominees, I guess he’s toast.

    1
  70. Modulo Myself says:

    Apparently, Judge Kavanaugh liked to have his female clerks dress a certain way:

    The professors proffering the advice are themselves well-known. Both Jed Rubenfeld and his wife, Amy Chua, author of the controversial 2011 book The Battle Hymn of the Tiger Mother, told this woman about Kavanaugh’s preferences. Then, Kavanaugh was simply known as a prestigious judge on the D.C. Circuit Court of Appeals.

    Though neither said the judge did anything untoward regarding the women he worked with, the student found their counsel off-putting.

    “I had mixed feelings,” said the woman, who asked to remain anonymous due to privacy concerns. “On the one hand, it’s a yellow flag; on the other hand, phew, I hadn’t heard anything else.”

    Her first inkling that there might be issues with Kavanaugh came from Rubenfeld in a conversation about various judges with whom she might work.

    Rubenfeld took care to warn her about two judges in particular: First, Alex Kozinski, then a judge on the U.S. 9th Circuit Court of Appeals, was known to sexually harass his clerks, he told her. (Kozinski retired in December amid accusations of harassment.)

    The other was Kavanaugh. Though the judge was known to hire female clerks who had a “certain look,” Rubenfeld told her, he emphasized that he had heard nothing else untoward.

    “He did not say what the ‘certain look’ was. I did not ask,” the woman said. “It was very clear to me that he was talking about physical appearance, because it was phrased as a warning ― and because it came after the warning about Judge Kozinski.”

    So good for our new Supreme Court Justice–he wasn’t as bad as his mentor, but clearly had risen above and dealt with the misogyny of his past. Totally normal and healthy to go from sexually assaulting someone when 17 to hiring women based on how hot they are. But he did love to coach girl’s basketball. I mean, really loved it.

    4
  71. Kylopod says:

    @Franklin:

    I haven’t read every comment, but there was a link I saw today (maybe even in another OTB thread?) that 10% of rape accusations are false.

    The following study (linked to from Wikipedia) gives an estimate of anything from 2% to 10% for sexual assault allegations:

    https://web.archive.org/web/20180101025446/https://icdv.idaho.gov/conference/handouts/False-Allegations.pdf

    So false accusations do happen from time to time, but they aren’t anywhere near as frequent as conservatives imply, making it sound like we should treat all such accusations as suspect (at least when they aren’t being launched against Democrats–a lot of this skepticism tends to go out the window when it comes to Bill Clinton’s accusers). In point of fact, sexual assault most often goes totally unreported because for various reasons (difficulty proving the incidents, public shaming of the victims, feelings of shame and guilt that are common to assault survivors), the victims are reluctant to bring the charges forward.

    3
  72. Modulo Myself says:

    I’m close friends with someone who went to a place similar to Georgetown Prep, and she’s now close friends with a classmate who was absolute shit. Some of her classmates refuse to talk to him. But he’s utterly repentant, and a social worker. He didn’t rise up and clerk for a judge who was a serial sexual harasser. He’s abjectly apologetic and open about what he was. And he wasn’t, as far I know, accused of anything like sexual assault. He did something with his life.

    What’s scarier than Kavanaugh on the Supreme Court is how his defenders are relating to him and how he put his past behind him. It’s a bizarre self-own to believe conforming and hiding is how you repent.

    2
  73. Franklin says:
  74. Michael Reynolds says:

    @James Joyner:
    Yes, it would be unjust if the accusation is false.

    But ask yourself this: if the accusation were that Kavanaugh had taken a baseball bat to someone and beaten them, would we be treating that accusation of a violent felony the same way we’re treating this accusation of a violent felony? Would we be talking about the unreliability of memory and allowing politicians to refuse an FBI investigation?

    I don’t think so. I don’t think we’d even be considering going forward without a full investigation. It would be intolerable to imagine a violent thug on the court. But this is accusation is ‘just’ attempted rape, and ‘just’ sexual assault.

    18
  75. Andre Kenji de Sousa says:

    @Franklin:

    I haven’t read every comment, but there was a link I saw today (maybe even in another OTB thread?) that 10% of rape accusations are false.

    We don’t know. Many rapes(Most of them) are unreported, many accusations of rape(Whether real or not) are not investigated, and many people wrongly convicted simply stay in prison.

  76. Just nutha ignint cracker says:

    @Modulo Myself: Yeah, in the light of the current fluff up, the fact that he coaches his daughter’s basketball team seems a little on the creepy-ish side.

    2
  77. Gustopher says:

    @Michael Reynolds: If he took a baseball bat to someone, there would likely be medical records, and likely a police report.

    There would be little doubt about when the person was attacked, let alone if. Possibly not even where.

    The documentation for sexual assault at a party is much weaker.

    But, I don’t think we would hear “just because someone got drunk and beat someone with a baseball bat in high school, should that really disqualify them for the Supreme Court thirty five years later?”

    3
  78. grumpy realist says:

    Actually, Kavenaugh may be all gung-ho to get on to SCOTUS, but has he actually considered what will then happen? He’s going to get elected under a cloud. And if he ever goes over the line ANYWHERE–gets seen in public just a little bit plastered, for instance–you’re going to hear a chorus of we-told-you-sos. And he’s going to have to toe the line for, well, the rest of his life. (This also means he’s going to have to worry about any foolishness that Judge gets up to as well.)

    If Kavenaugh had any sense whatsoever he should reconsider his application, but sadly, I think this is a man whose ambition is outrunning his brains.

    3
  79. James Joyner says:

    @Just nutha ignint cracker:

    If I read his statement correctly, and I may have read it too cursorily, he didn’t deny it, he said he was too drunk to remember what happened.

    I don’t consider Judge a witness; he was also accused so he has a self-interest in denying the accusation. There was another party, named only by initials in the account, who has since come forward and said he didn’t see anything or equivalent.

    @dazedandconfused:

    If Presidents are entitled to have their nominees confirmed it will be news to Merrick Garland.

    Again, I’m engaging Sunstein’s “ought” argument. I’ve acknowledged in the OP and the comments that, as a practical matter, the Senate can do what the votes allow. And I thought the Garland gambit dirty pool.

    @Michael Reynolds:

    It would be intolerable to imagine a violent thug on the court. But this is accusation is ‘just’ attempted rape, and ‘just’ sexual assault.

    I can’t speak for others but I don’t think so. Aside from the fact that a violent assault with a baseball bat is simply easier to prove than an attempted rape, I’d think most people would see the latter as more heinous. Indeed, I can imagine the circumstances where I myself would beat someone with a baseball bat but not where I’d try to rape someone.

  80. MarkedMan says:

    @James Joyner:

    It’s certainly true that Trump can simply nominate someone else. But I think that 1) Presidents are entitled to have qualified nominees confirmed…

    James, you are the military guy and I am not, but I’m willing to bet there is something in the curriculum for officer training about failure to recognize that the battlefield situation has changed and the danger of relying on accepted wisdom.

    This idea that “Presidents are entitled…” is something that arose in the past few decades but has never actually been true in the history of our country and certainly hasn’t been true since Roosevelt’s time. The reality is that for all the talk fo the “President’s choice” since at least WWII there have been powerful institutional mechanisms that prevented Presidents from testing the will of the Senate. The Judicial committee members crossed the aisle to discuss qualified candidates and let the President know when a choice was unacceptable, and that nominee was quietly pocketed. And I believe there was an unwritten but stringently followed rule that no judge would be nominated for a circuit court position, much less the Supreme Court, unless both Senators from their state agreed on their nomination, regardless of party. And of course any individual Senator could essentially block any judgeship through filibuster or a pocket veto. No judge would be nominated if they didn’t get the approval of the American Bar Association. So, yes, Presidents were felt to be entitled to their nominees, but it was based on the understanding that the opposing party and the ABA had significant input on the pool of nominees. No one made it into that pool that was deemed to be extremist or dishonest.

    But that is not the state of the battlefield today. Gingrich’s 50% + 1* strategy applies to judgeships just as much as to the laws of the land. It took longer for that insidious governing philosophy to infest the judicial nomination process because of institutional momentum. But today Republicans have stripped out the powers of the minority Senators to the point where they have zero input. Trying to apply the old “President deserves their choice…” in such a radically changed environment just leads to disaster.

    *Basically, never try to go for consensus but rather keep making a proposed bill more and more extreme until it just barely passes. Anything else is capitulation and weakness.

    2
  81. MarkedMan says:

    @James Joyner:

    There was another party, named only by initials in the account, who has since come forward and said he didn’t see anything or equivalent.

    I’m curious, where did you here the initials guy was a witness? What I heard was she said it was his party. The door was locked when it happened, with Kavanaugh and Judge in the room. So he could very well be telling the truth when he said he didn’t see anything. That has almost zero weight on whether something actually occurred.

    4
  82. rachel says:

    @dmichael:

    She needs to give the Repubs another opportunity to act like the misogynist a-holes that there are. It might not be enough to convince cowards like Collins and Murkowski to vote against but it could do real and immediate damage to the Repubs among voting women.

    She doesn’t need to do any of that; we need her to do that. I hope she chooses to, but I won’t blame her if she doesn’t.

    5
  83. dazedandconfused says:

    @James Joyner:

    Yes, and I most definitely agree with your point on Sunstein’s over-wrought reasoning. On reflection I judge my comment more argumentative and less clear than I had imagined when I wrote it.

    Sunstein asserts a standard for entitlement to oppose, many are quibbling about exactly what standards exist, to me there is clearly no standard. Some will say this attitude will result in chaos. Perhaps a little is needed to remind this generation in the Senate why those old fogies abided by their gentlemen’s club “rules”, difficulties-be-damned, almost.

  84. SC_Birdflyte says:

    @Mark Ivey: If it is truly “Anita Hill 2,” it won’t end well for the GOP. Claire McCaskill has already decided that the wrath of the Trumpidians this fall is easier to take than the wrath of a group of angry women.

  85. Andre Kenji de Sousa says:

    @SC_Birdflyte:

    If it is truly “Anita Hill 2,”

    It’s not. Clarence Thomas had positive approval numbers, including among Blacks. That’s why Southern Democrats voted for him.

  86. Kari Q says:

    @James Joyner:

    But we would never see a beating with a baseball bat described as just sports related hijinks, typical teenage behavior, just a couple of kids engaging in casual violence as all teens do, and therefore no big deal.

    But attempted rape has been called “teenagers groping” and “a game of seven minutes in heaven” and various other terms to reduce and belittle what happened.

    7
  87. Just nutha ignint cracker says:

    @MarkedMan: Alas Dr. Joyner–as I think is the case with Hal 10000– may be becoming reconciled to a conservative movement with Trump’s face on it. He seems determined to explain away whatever comes up as “the President has a right to his nominee and we have no evidence about this.”

  88. James Joyner says:

    @MarkedMan: Again, the OP acknowledges that the political reality is different than the theoretical world Sunstein and I are debating. Kavanaugh is conventionally highly qualified in terms of legal education and CV—much moreso than many recent nominees, who seemed to be selected as much for their youth and thus ability to keep issuing ruling as long as possible as for their qualification. I fully recognize that Dems will vote against him on ideological grounds and Republicans will almost certainly support him so long as it’s politically viable. I just think the “30% chance he’s a rapist” argument is a bad one.

    @Kari Q: True.

    @Just nutha ignint cracker: This is purely a matter of principle, not one of partisanship. As Steven Taylor has noted repeatedly upthread, if Kavnaugh isn’t confirmed, someone ideologically indistinguishable from him will be.

    I’ve been writing here since 2003. Of the eight SCOTUS nominees during that time, I’ve only opposed one, Harriet Miers, on the grounds that, while she was an admirable person, she wasn’t sufficiently qualified for the office. I also opposed the Republican shenanigans on Merrick Garland, both because I thought it early enough in Obama’s second term that he had a right to have a qualified nominee get a vote and because Obama had bent over backwards to appoint a moderate to the bench.

    2
  89. MarkedMan says:

    @James Joyner: I’ve never really addressed your original point, so I’ll do so here. I don’t think there is as much a difference between your position and Sunstein’s as you imagine. You both say that if a Senator believes there is a very low chance that Kavanaugh assaulted Ford they should not factor it into their deliberations. And you both say that as a Senator becomes less sure of his innocence, they should vote against. You put that transition at 51%. Sunstein at 30%. I’m more comfortable with your cutoff than with his, as long as we understand we are talking about character here and not criminal liability.

    Which is why I’ve been bringing up what we know about his character based upon what he has done in the present wrt this accusation. Given his high school history of drinking until he passed out, there is no way he could honestly say he never engaged in crude or loutish behavior that could have frightened or traumatized this 15 year old girl. So if he honestly has no recollection of doing something like this and truly believes he is incapable of it, if he had a decent character he would say exactly that. A man of character would not attack the woman as a liar. He would not claim that no incident, no contact could ever have taken place.

    There is a lot of other things that cast doubt on his character, but there is one thing that I’m wondering more and more about as the days drag on. He has 65 women who knew him in high school that are willing to say he was a nice boy. But I haven’t seen a single one of his women coworkers proactively vouch for his character. Maybe they exist and the Repubs are massively mishandling those attestations, but I doubt it. All we heard for days were the 65 high school acquaintances. Nothing new added to that. And now they have even stopped talking about them, presumably because at least a few have started protesting that the fact they didn’t see bad behavior doesn’t make Ford a liar.

    1
  90. Roger says:

    @James Joyner:

    I just think the “30% chance he’s a rapist” argument is a bad one.

    It’s a terrible argument if it’s being used in jury deliberations to try to send him to prison for the rest of his life. It’s a lousy argument if it’s being used in a civil trial to make him pay damages for something he may or may not have done. But this isn’t either of those.

    A trial would be about him–what he did or didn’t do and what he deserves as a result. A confirmation hearing is about us–who do we as a country deserve to have make important decisions that will affect all of us for the next thirty or so years.

    No one should be sent to prison because there’s a 30% chance he’s guilty, but no one’s talking about sending Kavanaugh to prison. If someone passed me a bowl of jelly beans and told me that 30% of them were poison, I wouldn’t pop one in my mouth because there was only a 30% chance it would kill me. I would’t go to a mechanic who had a 30% chance of screwing up the repair job. And I think there’s nothing wrong with declining to give the most influential position in our legal system to someone if there’s a 30% chance he’s a lying attempted rapist. Myself, I have no idea what the chances are that he did it, so I’m not sure how you get to the 30% level of certainty, but if you are able to get there it’s a no-brainer to me that you should vote no.

    5
  91. Just nutha ignint cracker says:

    @James Joyner: “…if Kavnaugh isn’t confirmed, someone ideologically indistinguishable from him will be.”

    Which, as I noted in another post is why your position seems a little disingenuous–why is THIS guy so important to secure? Partisan hacks are just like subway trains in Seoul, one comes every 3 minutes (and in both directions, to be fair). Why defend THIS guy? I don’t buy the “it’s the principle of it” argument because I’m cynical enough to find the adage “when anybody says ‘it’s not the money, it the principle,’ it always the money” valid more often than not. I don’t think that many of us are buying what you’re selling unless our names are Florak, JKB, and Bunge.

    And I really DO hope my cynical conspiracy theory nut cake persona is misjudging you.

  92. dazedandconfused says:

    I think his association with partisan hack stuff like the Vince Foster allegations is more disqualifying. It addresses what kind of judge he really is and is provable beyond a reasonable doubt too.

    I think the Ds would have been well-advised to take that tack.

  93. teve tory says:

    “What happens at Georgetown Prep, stays at Georgetown Prep”

    -Brett Kavanaugh, 2015

    Linky dinky

    Yeah he did it.

    2
  94. teve tory says:

    All we heard for days were the 65 high school acquaintances.

    As the meme said on twitter:

    Woman: Brett Kavanaugh sexually assaulted me in high school.
    Chuck Grassley: We’ve got a list of 65 women he knew in high school who said he was a perfect gentleman.
    People: Wait why do you have such a list?
    Grassley: No reason.

    He did that shit. Republicans don’t care because they’re shitty people.

    4
  95. James Joyner says:

    @Just nutha ignint cracker:

    Which, as I noted in another post is why your position seems a little disingenuous–why is THIS guy so important to secure?

    I’ve got no skin in whether Kavanaugh gets confirmed. But I don’t think someone with decades of exemplary should be denied a position for which he’s been nominated on the basis of an allegation of a teenage crime that Senators think it’s 70% likely he didn’t commit. That’s Sunstein’s position.

  96. HarvardLaw92 says:

    have always believed presidents are entitled to have qualified nominees confirmed

    No. Article II Section 2 specifies “advice AND consent” of the Senate. The closest synonym for consent is “permission”. The specific intent of that clause is to divide the power to staff these positions, preventing the sitting president from appointing whomever he/she likes by fiat.

    Presidents are entitled to have the Senate consider their nominees. They are NOT entitled to have those nominees rubber stamped out of some imagined sense of deference due to the executive.

    5
  97. MarkedMan says:

    So in a reply yesterday to James, I mentioned that, to me, the crucial thing in the Ford/Kavanaugh case is what it reveals as to whether he has the character worthy of a lifetime appointment to the Supreme Court. And in evaluating his character we don’t have to know exactly what happened 36 years ago, we can also look at what he has done in the present in responding to the charges. I highlighted a few things. But now we have another piece of evidence.

    There’s a friend of Kavanaugh in the Federalist Society, Ed Whelan. In the Bush administration the Federalist Society has been tasked with selecting their judicial nominations at every level including the Supreme Court. And Ed Whelan is reputed to be a big deal there. So it turns out that Kavanaugh, Whelan and his other advisors have been looking for a way to climb down from Kavanaugh’s absolutist statement that she is lying or crazy without admitting that Kavanaugh himself was involved. Over the past several days they cooked up a crazy theory that another student (whom they named) was actually the attempted rapist and that Ford, in her distress, had mixed them up. Whelan had shopped this theory to a number of news sources who all basically said “you have absolutely no proof or evidence that this is true*, and therefore if we went with it we would open ourselves up to a libel action”. Think about that. Presumably the first people they went to was Fox News and even that video rag wouldn’t run it. So Whelan tweets it out last night. And then withdraws it two hours later when the reaction was uniformly and resoundly negative. (I assume our usual gullible Trumpers think it is pure genius.)

    It’s impossible for me to believe that Kavanaugh knew nothing about this. Supposedly, Whelan has been by his side every step of the way, since before he was even nominated. To think Kavanaugh was blind to this genius idea you would have to a) believe that Whelan came up with this by himself with no input from Kavenaugh and b) that in the several days this was being shopped around no one from any of the media involved contacted Kavenaugh about it. But OK, Kavenaugh is a white male Republican so we apply the usual standards and say “if there is any theory by which he is not a POS we have to go with it, no matter how ridiculous, unless we have a confession or videotape evidence.” So say Kavanaugh didn’t know about it until Whelan tweeted it out. How did he react? Did he say “I had no idea about this and don’t want any part of smearing a classmate!” No. Dead silence. He’s waiting to see if he can get any traction from this.

    *It should be noted that while they don’t offer any real evidence, they have a sort of TV Detective’s wall of strings and documents kind of scenario that speaks to a whole lot of highly specific knowledge of the party, the night, and where everyone involved was. Considering Kavanaugh’s defenders initial tack was that nothing like this every happened, it makes you wonder where all this information came from.

    4
  98. @MarkedMan: From WaPo:

    Whelan has been involved in helping to advise Kavanaugh’s confirmation effort and is close friends with both Kavanaugh and Leonard Leo, the head of the Federalist Society who has been helping to spearhead the nomination. Kavanaugh and Whelan also worked together in the Bush administration.

    Kavanaugh and his allies have been privately discussing a defense that would not question whether an incident involving Ford happened, but instead would raise doubts that the attacker was Kavanaugh, according to a person familiar with the discussions.

    If true, then yes: this is raises profound character concerns in the here and now. The Whelan tweets were ridiculous and Kavanaugh ought to disavow them.

    2
  99. MarkedMan says:

    @Steven L. Taylor:

    The Whelan tweets were ridiculous and Kavanaugh ought to disavow them.

    Yeah, I think the “Use By” date has expired on that. You don’t get “character” credits for waiting to disavow something until you see it is a disaster.

  100. @MarkedMan: Indeed.

  101. No says:

    This issue is not really about Kavanaugh vs. Ford, but about Trump vs. his haters in the Senate, FBI, DOJ, and/or the Deep State. The Clarence Thomas vs. Anita Hill saga to this day remains a “he said, she said” matter. And, it won’t be surprising if Kavanaugh vs. Ford follows suit, regardless of the confirmation vote outcome. Unfortunately, the #metoo movement works for Democrats but against Republicans. This is why Democrat MN AG candidate Keith Ellison is not really facing the music for recent female abuse accusations against him. And, while I’m at it, why is Hillary Clinton still being viewed as a credible voice by the Left in the #metoo movement? Pundits and those who support the movement should tell Hillary she has no role to play in it given her efforts to destroy the lives of Monica Lewinsky, Anita Brodderick, Paula Jones, and Kathleen Willey after they went public with Bill’s antics (and she has never said or apologized about anything related to them since the movement began). But, since most reporters are Dems, no one’s holding their breath for that to happen (given the amount of time since it first came into being and Hillary still is viewed as a champion of women’s rights). The political reality is that Republicans always bring a knife to a gunfight, but Democrats will crawl over broken glass to achieve their ends. Also, while Democrats and some Republicans are very committed to thwarting Trump’s nominee, the supporters of both Trump and Kavanaugh are not as equally committed to winning this fight.

  102. Kylopod says:

    @No:

    Unfortunately, the #metoo movement works for Democrats but against Republicans.

    The Dems pressured one of their own–Al Franken–to resign over sexual assault allegations. Where are the Republicans calling for Donald Trump to resign over far more serious sexual assault allegations, including two rape allegations and a tape in which he boasted about having groped women?

    1
  103. @No:

    The political reality is that Republicans always bring a knife to a gunfight,

    Indeed. Just ask Justice Garland.

  104. No says:

    @Kylopod: Two reasons re: Trump not being damaged by #metoo. 1) He has defied the usual with what happens to Republicans and 2) The Dems react so over the top with anything he does that there is no focused point of attack. Besides Trump, I’m sure you are hard pressed to name another Republican who has escaped scrutiny. Admittedly, the Left has suffered casualties, but how to you explain Ellison and Clinton? As for Al Franken, when someone took a picture of him fondling a woman while she slept on a plane, there was no question about his guilt.