Justice Kavanuagh Confirmed

The Senate voted on Saturday, October 6, 2018 to confirm Judge Brett Kavanaugh as the next justice to the Supreme Court of the United States.  He was sworn in later that evening, moving him quickly into the seat vacated by Justice Kennedy's retirement.  He is seated today, hearing his first cases on the court, regarding longer prison terms for repeat offenders.  With a vote of 50-48, his confirmation was one of the closest confirmation votes since 1881.

And with this process completed, I wanted to offer a few thoughts on what this status brings.

1. It's sadly not over. - Though Justice Kavanaugh is now confirmed and seated, the controversy surrounding him is not over.  The American Bar Association is re-opening their evaluation of Judge Kavanaugh due to new information of a material nature regarding his judicial temperament, particularly in light of his fiery testimony on September 27, 2018.    Kavanaugh has also received around a dozen judicial misconduct complaints regarding the same fiery testimony, which are being forwarded on to the Supreme Court.  More extreme democrats have even raised the specter of impeachment.  President Trump has called the allegations a hoax, and is calling for tougher libel laws to potentially allow prosecution of the accusers (particularly Avenatti).  Dr. Blasey-Ford has announced, through her attorneys, that she does not plan to pursue further action against Kavanaugh, though it is a little unclear as to whether this references the mentioned impeachment action or legal action. It is also still unknown how Ms. Ramirez will proceed from here or whether she will pursue any further investigations of their accusations. The political fight over this particular issue is over, but the circumstances continue and you can guarantee this will be a sticking point in the mid-term elections.
2. For much of the country, his tenure on the bench will have an asterisk by it. - There are very likely equal populations that are celebrating and commiserating this event.  For while many view this as a circumstance in which justice prevailed, there is an equal population that sees this as a miscarriage of justice; an incomplete investigation that found the conclusion it was hoping to find.  And how we proceed from this, recognizing this divide, is to be charitable to each other.  To recognize there are valid reasons for each side's beliefs, not ascribing the worst possible motives to everyone against you.  There are reasons to be concerned about his tenure, beyond the accusations, particularly in regard to his views on executive power and accountability.  For those supporting, Kavanaugh has been groomed for this job and has been preparing for it for his entire tenure.  His record of supporting women in clerkship's and their advancement has been noteworthy.  Beyond his guilt or innocence of the accusations, there are credible reasons for concern and celebration.  We should recognize this and stop treating the other side as one lump group that is all represented by the worst of its members.  Perhaps in doing so, we could engage in meaningful conversations with people we disagree with to understand those opposing viewpoints and recognize the validity of various aspects of the other side.
3. There is no official finding of guilt or innocence regarding the accusations against Kavanaugh. - The FBI investigation and the hearing reached no conclusion on Kavanaugh's guilt or innocence; they merely reached a vote.  Both only provided information.  The conclusions were drawn by the Senators and have been drawn by each of us.  Ultimately, we are still at a place where the veracity of the allegations come down to each individual person's reading of the evidence, and likely feelings on the adequacy of the investigation.  As anticipated, we are still at a point where we have largely what remains a he said/she said scenario.  Barring further investigation and an actual case, we will likely never have more than this.
4. We've seen that much has changed since the Anita Hill testimony, but much remains the same. - In many ways, much similarity in the situation.  A reluctant testimony from a woman accusing a Supreme Court nominee of sexual misconduct, followed by a fierce and emotional response from the nominee, just days before a scheduled vote on the nomination.  Both justices confirmed in the process.  And both women vilified to a degree for coming forward with the accusation.  Now, Dr. Blasey-Ford has not been vilified to the degree of Anita Hill, but she has still not been able to return home due to death threats.  And while the Republicans on the committee chose not to grill Dr. Ford during her testimony, to avoid the appearance of the Anita Hill testimony, the mocking waited until after hearing both sides.  Trump mocked Dr. Blasey-Ford at a rally. And while others have said he was not helping the matter, many celebrated these statements or explained them away.  We as a country have divided into "I believe him" and "I believe her" camps.  And we are recycling many of the same tired arguments that arose after the Anita Hill testimony.  You can see them on Facebook and other social media.  The overt hostility to and distrust of any allegation that does not meet specific expectations.  The downplay of various forms sexual harassment as things that should not be issues in someone's past.  "Boys will be boys."  "They're only after one thing." "It's locker room talk."  "Why would anyone not come forward immediately?"  Perhaps there may be one silver lining from the similarities.  In the 1992 election following the Anita Hill testimony, a number of women were elected to seats in the United States Senate including Senators Diane Feinstein and Patricia Murray, who are both still serving today.  That election was dubbed the Year of the Woman.  Maybe the similarities will continue in this way as well.

The question then is how do we proceed.  We definitely have to get better at addressing sexual assault and harassment allegations as a society.  We have a long way to go in this aspect.

Further, we need to treat each other better in general, especially to stop demonizing those who disagree with us.  I've seen the images going around social media now that paint the horror stories of how all of American society will crumble if Republicans are not voted into office (I wish I were exaggerating) or how America will fall into tyranny if Democrats are not elected.  Neither image is correct and we need to stop playing that game.  It's not all or nothing.  It's just us.

And we need to start voting for people over party.  For those who are willing to buck their parties expectations.  For those who will accept limits of power.  And for those who move past the grandstanding and into service.

To organize and see a constitutional convention organized to place term limits on congressmen and women.

If you are not registered to vote, there is no excuse.  Today is the last day for your registration.  Go to https://www.votetexas.gov/register-to-vote/where-to-get-an-application-2.html to register online now.

Get informed and vote November 6, 2018.

Don't vote straight party. Read up on the candidates and vote for those that best represent you. There is a world of resources on the web to find out information on the candidates and issues on your ballot, including the two below.

Ontheissues.org
VoteSmart.org

There's never a better year to start than now.

A Good Person - Updated

"The Lord looks down from heaven on the sons of men to see if there are any who understand, any who seek God.  All have turned aside, they have together become corrupt; there is no one who does good, not even one."

Psalm 14:2-3

Yesterday, the Senate Judiciary Committee held its questioning of Judge Brett Kavanaugh and his accuser, Dr. Chrisine Blasey Ford.  And the day proved a study in contrasts.  The morning questioning of Dr. Ford was marked by a credible and emotional witness who described in detail the alleged assault and the effects that it has had on her life and by very measured questioning from the committee and the investigator who handled all of the Republican questions.  Dr. Ford was adamant that she was "100%" certain that Brett Kavanaugh was the person who assaulted her.

The afternoon was a much more fiery affair. Judge Kavanaugh was just as adamant in his denials, and almost defiantly so.  The questioning, at least initially, became much more of a hostile witness approach, with Kavanuagh reciprocating and treating questions from the investigator and the Republicans on the committee much more directly and appearing openly hostile to the Democratic questions.

The entire hearing was one filled with more dramatics and theatrics surrounding the timing of disclosure and the lack of a more in depth investigation.  All in all, we got what we mostly expected.  No new information, beyond confirming that Dr. Ford has a credible allegation.  We still have a he said/she said account of the events and have possibly impugned the character of the Senate Judiciary Committee in the process.

"Too often we judge other groups by their worst examples while judging ourselves by our best intentions."

President George W Bush

One particular refrain throughout the hearing were the accusations of political maneuvering and conspiracy.

Republicans are trying to ram this through without a full investigation.  

Democrats sat on these allegations and have delayed until now just to derail the process.

Kavanaugh even included the possibility this was all a "political hit" and potentially all "revenge on behalf of the Clintons."

Everyone looks noble to their side and assumes the worst of the other, and both sides have been guilty of this.  If we take off the presumption that the opposing side is only acting in the worst possible way, it seems we have reached this point because Senator Feinstein had never planned to reveal Dr. Ford's accusations at all and did not do so until the information had already been leaked.  Contrary to what was discussed in the hearing, what leaked first was the fact that Senator Feinstein had a letter regarding some allegation.  This information very well could have come from one of the friends Dr. Ford told about the assault and the steps she had taken.  The letter itself did not leak until two days after the Intercept article.  Then Dr. Ford came forward when reporters began hounding her.

From what we have heard from Senator Feinstein, these allegations may very well have remained completely confidential and undisclosed had the information not leaked.  At this point, we do not know why Senator Feinstein took such an approach.  Perhaps she took confidential to mean that Dr. Ford did not want the allegations to come out at all.  Perhaps Senator Feinstein did not believe the allegations in the letter were credible enough at that point without further open discussion to derail the confirmation process.  We do not know enough at this point to assume and impugn motive.

Likewise, we impugn ill motive on the circus that has surrounded the scheduling of this particular hearing and the delay that resulted.  And while political motivation is possible and probable, there are many other complex factors that certainly played large factors.   Just in my office, trying to schedule a short meeting can be downright impossible.  I cannot imagine what occurs at this level.

For certain, there is plenty of blame to be thrown around regarding how this all went down.  But there is nothing gained (but political favor) by continuing to denigrate the opposite side.  There is nothing gained from calling this whole process a sham, as Senator Lindsey Graham so indicated, beyond continued division.  And because both sides took this approach, we gained very little in terms of questions to either Dr. Ford or Judge Kavanaugh, and instead came away more with the political theatrics and grandstanding.

Let me tell you what I wish I'd known
When I was young and dreamed of glory
You have no control:

Who lives
Who dies
Who tells your story

Who Lives, Who Dies, Who Tells Your Story - Hamilton

What we have seen through this whole process is a tale of two Brett Kavanaughs.  Judge Kavanaugh presents his past as one where he was the ultimate goodie-two shoes.  His testimony focused on how he was top of his class, got into Yale, into Yale Law School.  He was always working, always studying, always working out or with the athletic teams.  He documented everything meticulously.  As many people stated and as was stated throughout the hearing, he was and is a "good person."  Sure, he enjoys beer, who doesn't, but he has never been that hard of a partier.  Never blacked out or not remembered the night before.  How could such accusations about him be true?

And yet, there is also the Brett Kavanaugh of the allegations.  Now three different women have come forward and have accused Kavanaugh of some form of sexual impropriety.  Some of the allegations have been corroborated, though anonymously.  Further, there are classmates who have stated they remember Kavanaugh as a blackout drunk, a belligerent drunk, a very hard partier.   There's the Kavanaugh of his yearbook which seemed to paint a different picture of his high school days that the one Kavanaugh has been stating.  Even with the more innocent explanations, there is a picture of how Kavanaugh is at least remembered by some that does not match Kavanaugh's own story.

And this matters because we are down to he said/she said.  Because we have two people who both claim 100% certainty, though in complete opposition.  Dr. Ford's testimony has the appropriate gaps in memory that we would expect from such events.  Things that are seared into her brain, while others take reconstruction or are not remembered.  This is why eye witness testimony is one of the least reliable types of evidence.  Our memories are faulty.  They leave out details, they have gaps, people focus on different things.  If you have a group of people who all tell the exact same story down to the last detail, it is generally thought of as unbelievable, as it comes across as rehearsed and likely fabricated.

Kavanaugh has left himself no wiggle room in his testimony.  His past has to be perfect or he has planted doubt as to what he is covering up.  He has categorically denied even ever being at a party like the one Dr. Ford described.  He is placing such strong emphasis of his memory of events from 36 years ago and on his transcribed record of the time, he leaves himself no room for error.  No room for anything he may have forgotten or mis-remembered.  And because we have other accounts of a different version of Brett Kavanaugh from that time, the question of his past continues to be a specter over these allegations.  Even a simple, "yes I partied hard and have definitely been very drunk in the past, but I know I never did this" (if true) could have gone a long way to address the conflicting accounts.

The truth is likely somewhere in the middle.  Could Kavanaugh have been so drunk that he didn't remember being at such a party?  Could Ford have mis-identified her assailant?  Without further investigation, these are the type of questions that we will not have answered.

--------------------

Ultimately and unfortunately, this is likely where this process ends.  As of now, the Senate Judiciary Committee still plans to vote today to recommend Kavanaugh for the nomination.  No further investigation is planned at this time, though one has been recommended and requested by several organizations including the American Bar Association.  We are likely never going to have more information on the accusations or the underlying facts at issue.

What we can do is work on changing the world around us to help make sure we as a society are not in this situation again.

• Every 98 seconds an American is sexually assaulted.
• And every 8 minutes, that victim is a child.
• 1 in 6 women have been sexually assaulted or raped.
• 3% of men have experienced sexual assault or rape (likely higher due to under reporting).
• An average of 63,000 children a year are victims of sexual assault.
• 9 out of every 10 rape victims are female.
• 6 out of every 1,000 perpetrators will actually see prison.
• As of 1998, it is estimated that 17.7 million women have been sexually assaulted or raped.

• About 2 out of 3 sexual assaults go unreported.
• 7 out of 10 rapes are committed by someone known to the victim.

We've got to work on changing system to believe sexual assault victims when the come forward and to encourage victims to speak up and support them through the process.  Because some other statistics are even more troubling.

Of those who were assaulted and did not report, but offered a reason for not reporting:

• 13% believed the police would not do anything to help
• 13% believed it was a personal matter
• 8% believed it was not important enough to report
• 7% did not want to get the perpetrator in trouble

While the most common reason was a fear of retaliation, the reason above represent 41% that either did not believe anyone would help or did not want to trouble the perpetrator.  Because sadly, the perpetrator is most often someone they know and someone they think would be more believable than them.

Someone everyone else would think is a "good person."

---------------------

Update - As of 2:00 pm ET, the Senate Judiciary Committee voted 11-10 to advance Judge Kavanaugh's nomination to the Senate Floor.  By 3:50 pm ET, the Senate Republican agreed to a delay of no greater than one week to allow for an FBI supplemental background investigation into the allegations against Judge Kavanaugh.

A Political News Dump

One of my favorite radio programs/podcasts is Wait Wait...Don't Tell Me!  A news quiz show, relying frequently on political humor, the program had created a segment called the Trump Dump to cover the bevy of news items that seemed to continue to come from this administration.

This week seems to be particularly full in the Trump Dump, and it's only Tuesday.  It has certainly shaping up to be an interesting week so far for the Trump administration, with Thursday, September 27, 2018, looking to be a particular focal point for interest.

Things started with news regarding deputy attorney general Rod J. Rosenstein over the weekend.  On Friday, September 21, 2018, the New York Times published an article outlining how Rosentein had suggested last spring (2017) that he secretly record President Trump in the White House to expose the chaos in the administration and that he had discussed recruiting cabinet members to invoke the 25th Amendment to remove the president from office for being unfit to serve.  By Friday evening, Mr. Rosenstein had become convinced he should resign and offered a late-day visit to the White House to quit.  White House chief of staff John Kelly demurred.  From there, aides began planning over the weekend for his departure, as Rosenstein told Kelly and White House counsele Donald McGahn that he was considering resigning.  Rosenstein was told to postpone any discussion until Monday, particularly as there were those who believed that only the president could legally accept any resignation.  On Monday, September 24, 2018, Rosenstein and Ed O'Callaghan, his top deputy, raced to the White House for the final word.  Justice Department officials were even telling reporters they expected Rosenstein to be fired.  News went wild.  Following discussions with Kelly, McGahn, and a request for a conversation with President Trump, word leaked that there was evidence Rosenstein was not resigning nor was he fired.  Rosenstein will not be able to meet with the president until Thursday, September 27, when the president returns from the United Nations General Assembly.

Rosenstein has been a thorn in Trump's side for a while now, particularly with regard to the Russia investigation led by Robert Mueller.

Much of the bad blood with Russia is caused by the Fake & Corrupt Russia Investigation, headed up by the all Democrat loyalists, or people that worked for Obama. Mueller is most conflicted of all (except Rosenstein who signed FISA & Comey letter). No Collusion, so they go crazy!

— Donald J. Trump (@realDonaldTrump) April 11, 2018

Trump has apparently been frustrated with Rosenstein's unwillingness to remove or fire Mueller and end the investigation. 

Rosenstein's resignation or firing would lead to a whole other set of complications.  Apparently, there is a Constitutional question regarding how his vacancy would be filled should he be fired.  The Federal Vacancies Reform Act of 1988 provides for the president to temporarily replace an officer from an executive agency who dies, resigns, or is otherwise unable to perform the functions or duties of the office with a Senate-confirmed political appointee.  The law is silent, though, when it comes to such a person being fired.  This could lead to a political fight over the president's appointee.

Further, the most likely successor is Noel J. Francisco, the solicitor general.  This however could be problematic as he is potentially conflicted from overseeing the Russia investigation, as his law firm, Jones Day, is representing the Trump campaign in the inquiry.

And should Rosenstein resign or be fired, he would be the merely the latest in a list of nearly fifty top executives that have either been fired, resigned under pressure, or resigned from their posts in the administration.

Further, the allegations of the need for a wire to expose the chaos and the rumblings of the invocation of the 25th Amendment only seem to further substantiate the anonymous op ed previously published and the stories revealed in Woodward's book Fear.  More evidence that we are right to be concerned.

--------------------

To add to this trouble, additional accusations regarding sexual misconduct by Supreme Court nominee Judge Brett Kavanaugh in his high school and college days, ahead of his new hearing date of Thursday, September 27, 2018.  Deborah Ramirez, a colleague at Yale, alleges that while they were both freshman at Yale and drinking at a dorm room party, Kavanaugh, as well as other men present, exposed himself to her, forcing her to touch his genitals to push them away from her face.  With this incident, there is a bit more corroborating evidence surrounding it.  The story as told was corroborated by another classmate who declined to be identified.  Others, remember the incident, but not the parties involved.   Further, a pattern has begun to emerge in how classmates referred to Kavanaugh's partying in college. Classmates have described him as an "aggressive and even belligerent" drunk and as "frequently, incoherently drunk."  His general behavior at college had even become a point of discussion among classmates following the news of his nomination.

Even Kavanaugh's high school yearbook has been poured over, revealing a version of Kavanaugh's past that does not seem to match how he describes it.  There are more insights into the hard drinking atmosphere that Kavanaugh seemed to engage in - a boast of "100 kegs or bust" for the Keg City Club on his personal page.  It also showed a reference to the "Renate Alumni," which was referenced by 14 of his fellow classmates, one of whom even included a poem, "You need a date/and it's getting late/so don't hesitate/to call Renate."  This apparently refers to a student at a nearby Catholic girls' school, Renate Dolphin, nee Schroeder.  Ms. Dolphin was one of the women who had signed a recent letter supporting Kavanaugh's character, and has indicated to a friend that while she stood by the letter's contents, she was "sickened" by the yearbook references that are coming out.

Beyond this, a third, unnamed accuser who is a former employee of the State Department and US Mint is also expected to come forward in the next 48 hours, with additional information regarding how Mark Judge and Kavanaugh behaved at countless house parties while high school students in the Georgetown area.  Michael Avenatti, attorney for the accuser, claims significant evidence of use of drugs and alcohol for gang rape.

And while Kavanaugh continues to deny all allegations, more and more evidence seems to be mounting revealing that at the very least, his version of his high school and college days does not match the version that others remember.  And that will be problematic for him.  If the allegations are true, then there is no question he must be held accountable.  As more and more comes to light, we move beyond questions of how long can a person's past be held against them.  If all of the allegations are true, we are seeing a pattern of behavior that needs to be accounted for and appropriately dealt with.  I don't know that we will see that in the hearing process, but it is shaping up to be an even uglier process than anyone could have imagined.

The President has stood by Kavanaugh and downplayed all acquisitions accusations.

The Democrats are working hard to destroy a wonderful man, and a man who has the potential to be one of our greatest Supreme Court Justices ever, with an array of False Accusations the likes of which have never been seen before!

— Donald J. Trump (@realDonaldTrump) September 25, 2018

--------------------

Finally, Trump's speech at the United Nations General Assembly today did not go exactly as planned.  There was a bit of an awkward and unexpected moment when other leaders laughed or grumbled at Trump's boasts about his administrations accomplishments.  "I didn't expect that reaction but that's okay."

All issues creating the potential for a very explosive Thursday as the president meets with Rosenstein and Kavanaugh goes before the committee again.

Who knows what will happen next?

Have we ever been in such deep chaos with any other administration?

Interesting times indeed.

Evidence, Confirmation, and Kavanaugh

The confirmation hearings and process for Judge Brett Kavanaugh have proven a very interesting lesson in the importance of evidence.

To being with the first day of his hearings began with the Democratic members of the committee moving for a delay due to issues with Judge Kavanaugh's record being produced to them.  (I'm not going to address the protesters as they are an unrelated issue).  The Democrats complained that 100,000 pages from Kavanaugh's tenure in the Bush White House had been withheld and further complained about the release of 45,000 pages the night before the hearing, a move commonly known as a "document dump."  And while the Democratic's took the histrionics a bit far, there is validity to their complaints.

First, regarding the missing pages.  The purpose of discovery or disclosure is to lead to the discovery of admissible evidence, that is evidence that might be relevant for trial.  It is purposefully broad, as the entire goal of the discovery process is to get to the truth.  There are exceptions to what can be discovered, but by-and-large information that might be relevant will generally be made available to both parties in suit.  We do not want parties winning a suit by withholding relevant information.  By concealment.  We want the truth out, so the truth can set us free, literally and metaphorically.

The same holds true in these political proceedings.  We do not want appointments to succeed because of concealment or a lack of disclosure.  Particularly with judges, where precedence will matter and where their appointment will be a life-time one, we want the full-record available for examination and thorough debate.  We want the members of the committee to be able to review as much as possible regarding the candidate's record, to determine the most important questions that the candidate should address.  They need to be able to sort through the whole set to see if there are any surprises. If there are things that would affect their vote.  And to be able to review such materials in a sufficient amount of time before the hearing.

Second, regarding the "document dump."  "Document dump" refers to the practice of sending your opponents thousands to millions of pages of documents, sometimes of very little value, often as close to the discovery deadline as possible, to make it very difficult for the opposition to sift through the documents to find anything useful.  It can be used to bury damning or harmful documents, forcing the opposition to really have to work in order to be able to find them.

Contrary to popular opinion, it's not good practice for attorneys to engage in a "document dump."  First, modern discovery really doesn't work that way anymore.  With most documents being digitally stored (email, computer files, etc) the bounds of discovery are often set through search terms and custodian identification.  Negotiating search terms can often be one of the more tedious negotiations in the process just to ensure you capture what you want, without bringing back too much extra with it.  So even for those companies that just run the terms and produce nearly sight unseen, the set is generally more limited than it used to be in the past.  Second, missteps with discovery can lead to heavy sanctions, up to and including "death penalty sanctions," like the striking of the parties' pleadings.

We should expect better than a document dump the night before the committee hearing.  There is no reason to push this appointment through on such an accelerated time frame, other than politics. It is sad that we are at the point where such appointments are now voted on strict party lines, but it does not excuse a hurried procedure. We've seen what terrible results come from bills too large pushed through Congress with little reading.  We do not need that in our appointment process as well.

So, while the Democrats deserve no praise for their theatrics in making their objections so theatrical at the beginning of the hearing, the Republicans likewise deserve no praise for their attempts to overly expedite the process, leading to the concealment of documents.

Another interesting turn regarding the process came with the discussion of use of the "Committee Confidential" designation.  Before the third day of the hearing, Senator Cory Booker released "committee confidential" documents without the approval of the committee, so the documents could be discussed in the hearings.  Again, bad actions and histrionics by Republicans and Democrats alike.

The "committee confidential" designation is one that applies only to the committee process, here the judicial committee, and has no connection to actual designations for national security.  It has been used in the past to cover potential embarrassing or sensitive materials.  It was in the past, a designation applied by agreement of both parties in the committee.  It referred to areas both parties agreed would not be discussed.  Here, Chairman Senator Charles Grassley (R) alone designated the documents committee confidential.  And the Democrats then fought to have the designation removed, to the point of releasing the documents in direct defiance.  The issue ended up being moot, as the documents released were cleared for release very early that morning (2:00 am - 3:00 am).  I suppose no one read their email that morning.

Again, likely a battle that could have been completely avoided, had the parties been a little more patient in scheduling.

Finally, we come to the new issue that has come up through the nomination and hearing process.  Judge Kavanaugh has been accused of sexual assault (attempted rape) in the 1980s by Christine Blasey Ford, a fellow high school student in suburban Maryland at the time.  Ford alleges that Kavanaugh and a classmate, Mark Judge, both stumbling drunk at the time, corralled her into a bedroom during a gathering of teenagers, pinned her to a bed, groped her over her clothes, and attempted to remove her clothes.  When she tried to scream, she alleges Kavanaugh put her hand over her mouth and Judge turned up the stereo to muffle the sounds.

Ford contacted the Washington Post through a tip line in July when Kavanaugh was announced on a short list, contacted her local congresswoman, Anna G. Eshoo, and sent a letter to Senator Diane Feinstein, the ranking Democrat on the Judiciary Committee.  In all methods of contact, Ford asked to remain anonymous and confidential, but wished to pass on her story and concern.  Ultimately, she decided she did not want to go public with her story due to the upheaval it would bring to her family.

Ford's story leaked in the Intercept on Wednesday, September 12, 2018, who reported on the letter that Senator Feinstein had received.  Though Senator Feinstein had the letter since July, she released a statement revealing that she kept it confidential as requested, but referred the matter to federal investigation.  By Friday, September 14, 2018, the New York times reported the letter's contents, but not the author. Ford then decided to come forward through an interview with the Washington Post on Sunday, September 16, 2018.

Kavanaugh categorically denies the allegations.  Both Kavanaugh and Ford have agreed to testify before Congress regarding the allegations.  And the senate committee will hold a public hearing on the issue.

And now we have one of the most challenging evidentiary cases affecting the nomination; what essentially boils down to the he said/she said all to common in sexual assault cases.  And the battle lines have been drawn.

Conservatives are quick to point out how and why Ford is lying.  Because it happened so long ago, because she waited so long to tell anyone, because she first gave notice anonymously, because it's only happening now that Kavanaugh is nominated for a high office.  Her liberal bias and donations are showing so she can block his nomination - she has the most to gain.

Liberals are quick to side with Ford against Kavanaugh, choosing to immediately believe the accuser.  They argue he has the most to lose; of course he would lie to protect his interests.  Or worse, could it be an episode where he was so blackout drunk he remembers nothing.  The other alleged perpetrator's book includes mention that would seem to paint Kavanaugh as a pretty hard partyer and drinker at the time.  Further, it seems odd Kavanaugh would be so quickly able to get 65 female friends from that time period to be able to write him a character recommendation.

Of course, all of those views in those two paragraphs above are speculation.  Our system of jurisprudence requires two things: we take the allegations seriously (we believe them and we investigate them fully) and that the accused is innocent until proven guilty.  The allegations are not proof.  They are the start of the process and they must be treated with appropriate weight.  We cannot just dismiss them out of hand.

To Ford's accusations, it appears she has notes from her therapist regarding the incident dating back to 2012, when she first discussed it, and there are multiple mentions from that time forward with her therapist and husband.  She further has undergone and passed a lie detector test regarding her allegations of the incident at the advice of counsel.

And we should not be surprised at any delay in a sexual assault victim coming forward.  It is much, much more common than you can imagine.  It is in fact, more surprising that she ever decided to come forward at all.  It is believed only 15.8% to 35% of all sexual assaults are ever reported.

So we have a nomination process shaping up now to be a lot more like Clarence Thomas' nomination than anyone would have expected, with major differences of course.  There the accusations spoke to Thomas' actions while in government life.  Here, the accusations go to Kavanaugh's youth.  At what point do the actions of our youth become the "foolishness of our youth?"  Though it does not seem that there was any personal atonement according to Ford, what is the proper penitence for one apparent horrible action in your youth?  And the more serious question, was it truly only the one incident or will we see more allegations come forward?

Further, the allegations against Thomas went to sexual harassment; against Kavanaugh, sexual assault.  Surely that raises the stakes and the severity, but to what degree?  If the allegations are true, it would seem he deserves some punishment from the crime, but to what ends?  What would be enough?  Does blocking him from the Court satisfy the wrong or is there more that would need to be levied?  Would charges be brought and criminal penalty?

These are the kinds of questions now before the Committee and the public.  And it's further confirmation of why these confirmation proceedings are so important.  Why they should not be rushed.  Why all evidence from the person's record of communications to the letters received by the committee members regarding the nominee should be made available and reviewable by the committee in a timely fashion.  Why the hearing that is now before the committee will be the most important hearing of the entire process.

Evidence matters.

Justice Kavanaugh?

President Trump's nominee to replace Justice Kennedy on the Supreme Court has been named...Judge Brett Kavanaugh of the D.C. Circuit Court.

Judge Kavanaugh in many ways is an obvious choice.  Yale educated, previously clerked for Justice Kennedy in addition to two appellate judges, and worked in the solicitor general's office for George W. Bush.  He has been dubbed by the left as the "Forrest Gump of Republican Politics," involved in a large number of major events in Conservative politics.   Working with Ken Starr on the Clinton investigation and a primary author on the Starr Report.  Representing two members of Congress who filed a brief in a Supreme Court case supporting a New Mexico school district's effort to maintain student-led prayer at football games.  Representing Elian Gonzalez's relatives trying to keep him in Miami.  Representing Jeb Bush in his fight to overcome constitutional hurdles on his school voucher program.  On George W. Bush's legal team in the 2000 election court battle.

His nomination is going to be a very interesting process.  With Senator John McCain out due to illness and a question mark as to whether he would or could return for the vote, the Senate is currently Republicans 50, Democrats 49.  The narrowest of margins for an approval.  Two pro-choice Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, are being looked at as potential swing voters, as are Democrats in states Trump carried, like Joe Donnelly of Indiana and Joe Manchin of West Virginia.  It could very well come down to the wire with a long-drawn out and hard fought confirmation process.

In the interim, it is interesting to look over Kavanaugh's record on various issues, which gives both Republicans and Democrats reason for praise and pause.

Seven-Sky v. Holder - A constitutional challenge to the Affordable Care act.  The D.C. Circuit upheld the law as legitimate under the Commerce Clause.  Kavanaugh dissented, not because he thought the law was unconstitutional, but because he thought the court lacked jurisdiction to consider the case.  In his dissent, he raised the argument of the Affordable Care Act as a tax within Congress' power, which Justice Roberts used in the Supreme Court decision upholding the Affordable Care Act.

Newdow v. Roberts - D.C. Circuit case from 2010 in which atheist activist Michael Newdow challenged the "so help me God" provision in the presidential oath.  Kavanaugh agreed that the challenge failed, but concluded that the plaintiffs at least had standing to bring the case, a bit of an expansion on Supreme Court precedent.

Priests for Life v. Health and Human Services - 2015 religious liberty challenge to Obamacare's contraceptive mandate requiring the employer to provide health insurance to their employees including all FDA approved contraceptives, apply for an exemption by filing a form and allowing the insurer to continue to provide from separate forms, or to pay a fine to the government.  Kavanaugh dissented from the court's denial of a full court hearing and would have ruled in favor of the challenge finding the mandate to unconstitutionally burden religious freedom.  He did though recognize the government's "compelling interest in facilitating women's access to contraception."

Kaemmerling v. Lappin - a 2008 religious liberty case in which a prisoner was claiming that a federal law required him to provide a DNA sample in violation of his free exercise of religion.  Kavanaugh joined the majority opinion in ruling against the prisoner.

Garza v. Hargan - a 2017 immigration case in which a teenager in the United States illegally petitioned to be released from immigration custody to have an abortion.  After a federal judge found she could be released, Kavanaugh wrote an initial panel decision blocking the abortion for up to 10 more days to give the government time to find the 17-year-old an immigration sponsor.  The full court then overturned his ruling.  Kavanaugh dissented arguing that requiring the government to assist the girl in obtaining an abortion would ignore the government's "permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion."

White Stallion Energy Center LLC v. EPA - 2014 opinion regarding EPA emissions standards set in 2012 for mercury and other pollutants from coal-and oil-fired electric utility steam generating units.  One of the key issues was whether the EPA was required to consider the costs imposed by the rule.  THe majority of the court agreed with the EPA that it did not have to consider the costs.  Kavanaugh dissented surprised the EPA did not consider the costs and viewing it unreasonable for the EPA to do so.

Heller v. District of Columbia - 2011 Second Amendment case regarding a District of Columbia ordinance banning most semi-automatic rifles.  The D.C. Circuit Court upheld the ban.  Kavanaugh dissented aruging the Second Amendment included the right to own semi-automatic rifles.  This ban would be overturned by the Supreme Court (agreeing with Kavanaugh).

It may be his work in the Starr report and a 2009 law review article that have the most opportunity for impact in his potential time on the bench.  In the Starr report, Kavanaugh helped outline 11 possible grounds for impeachment including broader interpretations for impeachment than had ever been used.  These included lying to aides "knowing they would relay those falsehoods to the grand jury" and lying to the American public, with senior officials, including the press secretary, relying on those denials in their own misleading public statements.  Both grounds could prove very interesting with the ongoing Mueller investigation.

Further, the article in the 2009 Minnesota Law Review contains Judge Kavanaugh's belief that Congress should pass laws that would protect a president from civil and criminal law suits until they are out of office, leaving impeachment as the only removal process.  Again, something to file away in light of the ongoing investigations.