The Kavanaugh controversy

[Voronwë the Faithful]

As most know, Brett Kavanaugh was nominated by Mr. Trump to replaced the retired Justice Anthony Kennedy on the U.S. Supreme Court. Despite strong opposition by most of the Democratic caucus it appeared that his nomination was all but assured. No GOP senators had come out against him, and the two pro-choice senators most likely to oppose him, Sen. Collins of Maine and Sen. Murkowski of Alaska both seemed on track to vote for him, and it also appeared likely that several of the red state Democratic senators up for re-election would also likely vote for him.

Last week a new issue arose in a very strange manner. Sen. Feinstein, the ranking member of the Judicial Committee, announced that she had referred a confidential letter about Judge Kavanaugh to the FBI, without revealing any details or the person’s name, citing that the person wanted to remain confidential. It turned out the letter had originally been given to Rep. Anna Eshoo (who happens to be my representative. Then Ronan Farrow of the New Yorker (who seems to get every scoop about sexual assault or harassment these days) reported the details of the letter without revealing the person’s identity: a woman alleged that Kavanaugh had attempted to sexually assault her when they were both in high school. Apparently, Feinstein had had this letter for some weeks and had not revealed it to the committee because of fears of violating the woman’s confidentiality.

At that point, as serious as the allegation was, it seemed unlikely to affect the nomination process. I know for myself, as much as oppose Kavanaugh’s nomination in its face, and as seriously as I take allegations of sexual assault and harassment, I did not believe that under these circumstances an anonymous accusation should be used to derail his nomination. However, all that changed this weekend when the woman decided to go public with her accusations and reveal her identity in an interview with the Washington Post. She is a psychologist and professor at a California university.

https://www.washingtonpost.com/investig ... 67bc53d339


Not only did she give further details about the alleged assault, which to say the least is egregious, she provided strong information supporting the claim, despite the fact that the assault had never been reported to law enforcement, including notes from a therapist from several years ago in which she discussed the assault, and that she had passed a polygraph test administered by a former FBI agent.

All of this has occurred with a vote scheduled on Kavanaugh’s nomination by the Judiciary Committee on Thursday, as the GOP pushes to get him confirmed by the beginning of the Supreme Court’s term next month. However, several senators, including a few from the GOP, have called for delay until the issue is explored further, and she has indicated she is willing to testify before the committee. All of this raises the specter of the allegations made by Anita Hill against Clarence Thomas 27 years ago, which were not fully explored by the committee (something that Joe Biden, who was then the Chairman of the committee, has expressed regret for), before Thomas was confirmed by a 52-48 vote (with more than a dozen Democrats voting in his favor).

It is hard to say what is going to happen next, but this feels like a watershed moment to me. We’ll see.

[Voronwë the Faithful]

I want to add that I fully understand Dr. Ford's reluctance to come forward. Anita Hill's life was turned upside down, and she was viciously attacked for coming forward, as have many other woman. It seems inconceivable to me that anyone would make something like this up and subject themselves to that kind of abuse, particularly with the elaborate backing that she has apparently provided. On the other hand, it is unlikely that any other witnesses are going to be able to corroborate her story. Should an otherwise successful nomination be derailed under these circumstances?

[River]

I want to add that I fully understand Dr. Ford's reluctance to come forward. Anita Hill's life was turned upside down, and she was viciously attacked for coming forward, as have many other woman. It seems inconceivable to me that anyone would make something like this up and subject themselves to that kind of abuse, particularly with the elaborate backing that she has apparently provided. On the other hand, it is unlikely that any other witnesses are going to be able to corroborate her story. Should an otherwise successful nomination be derailed under these circumstances?

Assault's a crime. It's probably a good idea to make sure Kavanaugh didn't run out the statute of limitations clock on a crime before giving him a lifelong job in the highest court.

[yovargas]

I'm sure opinions on this will be extremely divided but my personal initial thought - man, I really don't care that he did something really bad 30 years ago.

[Voronwë the Faithful]

I'm curious to know how far that extends, yov. Is there nothing he could have done 30 years ago that you think would affect his eligibility to be a Supreme Court justice? What if he had killed someone? Surely that would be enough? No? What if he had raped 6 boys? I'm not trying to being a smart-aleck; I'm just trying to determine what your line would be.

For myself, if it turned out that he committed plagiarism in high school, or cheated on an exam, that would not be relevant at this time. But an assault as serious as the one being alleged? Even that long ago, to me that is something that I think matters.

[elengil]

I'm sure opinions on this will be extremely divided but my personal initial thought - man, I really don't care that he did something really bad 30 years ago.

Do we no longer expect our justices to be above reproach?

[yovargas]

I'm curious to know how far that extends, yov. Is there nothing he could have done 30 years ago that you think would affect his eligibility to be a Supreme Court justice? What if he had killed someone? Surely that would be enough? No? What if he had raped 6 boys? I'm not trying to being a smart-aleck; I'm just trying to determine what your line would be.

That is a very fair question and I can't honestly say I am able to answer it.

[Voronwë the Faithful]

Fair enough, though I don't think any of the senators voting on the nomination will be able to punt like that.

Meanwhile, to update the current situation, Sen. Grassley, the chairman of the committee, tried to get by scheduling committee staff phone calls with both Judge Kavanaugh and Dr. Ford, while going forward with the vote on Thursday. But too many of his colleagues, including a few on his side of the aisle, complained. So he backed down and now a public hearing is scheduled for next Monday, at which both Judge Kavanaugh and Dr. Ford have agreed to testify under oath. It is unclear to me at this point if any other witnesses will also testify. Democrats complained that the FBI should do a full investigation first, but that was never going to happen.

At this point, assuming Dr. Ford comes across as credible, I don't see even the red state Democrats voting to confirm. The question then becomes whether at least two Republicans vote against confirmation. Retiring Sen. Jeff Flake, a constant thorn in Mr. Trump's side, has already stated that if he believes Dr. Ford he will not be able to vote for Judge Kavanaugh. But essentially it is likely to just her repeating the story, and him repeating his denial. It seems unlikely that it will be possible to judge who is telling the truth.

For what it is worth, Nina Totenberg, the long-time NPR Supreme Court reporter who originally broke the Anita Hill story 27 years ago (Prof. Hill, too, was reluctant to come forward, for reasons that soon became obvious), predicts that like Justice Thomas, Judge Kavanaugh will ultimately be confirmed.

[River]

Yes, right now it does look like it'll be a round of her word against his. But there may be some more surprises that will drop between now and next Monday.

[Cerin]

Ford describes Kavanaugh and his friend as 'stumbling drunk.' If a person is drunk enough to be stumbling, do their actions represent their true character and judgment? Maybe someone more familiar with substance abuse than I am could address that question.

I'd agree with Totenberg if we weren't in this #MeToo moment in history, with so many prominent men facing career consequences for similar conduct. That makes it harder to gauge how it might all pan out. I think much will depend on Kavanaugh's deportment. Justice Thomas blustered his way out of trouble by loudly calling the proceedings a lynching. Of course, Kavanaugh doesn't have the race card to play, but is he capable of the kind of emotional display Thomas put on?

[Primula Baggins]

Being drunk doesn't excuse people from responsibility for deaths they cause while drunk; I don't see why it would excuse someone from rape or attempted rape carried out while drunk.

[Cerin]

Driving drunk doesn't involve the intent to kill, the killing is inadvertent due to impaired judgment and function, which I assume is factored into the type of charges that are brought and sentences given. I am wondering what factor such a level of impairment represented in the incident described by Ford.

If Ford's recounting is accurate and Kavanaugh was that drunk, it seems likely he would not have a clear recollection of events, so his protestations of innocence could be genuine from his point of view. And the same could be true for the other man, as well.

[River]

Killing someone while driving drunk.

Basically, it can vary a bit from state to state how you're charged, but if you get drunk and get in your car and kill someone, whether you meant to or not, you have committed a felony. In some states it's manslaughter. In others it is murder. In any event, you're going to jail. If you don't want to accidentally kill someone with your car while drunk, don't get in the driver's seat. Or don't get drunk. I favor the latter option myself but to each their own.

Remember kids, it's all fun and games until you commit a crime.

[Cerin]

I imagine that sometimes, the impairment of judgment encompasses the decision to get in the car and drive.

[Sunsilver]

Saw an interesting comparison on FB: Kananaugh tried to prevent a 17 year old from having an abortion. IOW, he wanted her to be held responsible for getting pregnant. (Never mind there was another party involved with the conception... )

Shouldn't he be held to the same standard at the same age?

[elengil]

Driving drunk doesn't involve the intent to kill

Intent? Maybe. Maybe not. It certainly displays an utter lack of concern for the lives of others in that you are engaging in a behavior that is a known risk and endangering others' lives.

But then, crime is not always about intent. Intent may mitigate the degree to which you are charged, but does not absolve you of culpability entirely.

it seems likely he would not have a clear recollection of events, so his protestations of innocence could be genuine from his point of view. And the same could be true for the other man, as well.

There is the possibility of having a black-out experience where actions are not remembered, of course. But that, again, does not absolve one of the culpability of their actions. Assault is assault, whether it is remembered or not. Simply not remembering assaulting someone is not a legal defense. It may lend to the sincerity to which one denies it, but does not change facts.

I am not saying the facts are known, but saying that either being drunk or not remembering does not absolve one of a crime.

Though I am constantly forced to remind myself that in our legal system being rich or a good swimmer can absolve one of all manner of crime. And all the other outrageous defenses that counsel has argued and won at least some level of victory for.

But back to the matter at hand. We have a nominee who, whether guilty or not, has several clouds hanging over him, whether the possibility of having lied, or the possibility of having committed assault, or even more poignantly, a past record being deliberately denied to either the committee or the American people.

If a nominees record is deemed so sensitive as to not be able to be vetted, the obvious result should not be throw out the vetting process, but to simply nominate another qualified person for the job. It is not as if he is the only possibility.

[River]

^^^This. Surely it can't be that hard to find a SCOTUS nominee who never got drunk and rapey.

[Voronwë the Faithful]

The comparison to driving while drunk doesn't hold, bad as that can be. When you drive while drunk, you are doing an innocent action, but potentially doing it so badly that it becomes dangerous. There are no circumstances in which raping someone, or attempting to rape them, is an innocent action.

[Cerin]

There is the possibility of having a black-out experience where actions are not remembered, of course. But that, again, does not absolve one of the culpability of their actions. Assault is assault, whether it is remembered or not. Simply not remembering assaulting someone is not a legal defense. It may lend to the sincerity to which one denies it, but does not change facts.

But we're not talking about a legal defense here. Charges would not be brought in this case, I would think, because there is no evidence and a conviction would be unlikely. The question in my mind is, is Kavanaugh a man who, in his right mind, would attempt to sexually assault someone; if not, is he an habitual drunk? If the answers are no, then I don't think the Ford accusation should be disqualifying. I do think his extreme ideological bent and the other questions about his honesty are enough to disqualify him.


Voronwë, I guess my question comes down to, can someone really be said to be attempting something if they're too drunk to know what they're doing?

[elengil]

But we're not talking about a legal defense here.

I realize, but since the discussion was about whether a drunk driver can be said to have intent, and further had examples of being charged to various degrees, I went with a legal bent to my response.

And as this isn't a trial, strictly speaking whether or not he actually committed a crime can be argued to be entirely irrelevant. I am more concerned with the credible accusation on top of the other already worrying things coming out of this process for this nominee. I would think that it would be much better to have a clean nominee rather than this increasingly problematic one.