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September 17, 2018
"What Should the Senate Do With Brett Kavanaugh?"
The title of this post is the title of this new Politico piece which has answers/comments from a number of legal academics. This topic is one surely to roil the legal world this coming week, and the Politico piece sets up why:
In a dramatic turn, Christine Blasey Ford, a professor at Palo Alto University, is accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her when they were in high school in suburban Maryland. He has categorically denied the allegation, and Republicans are indicating they intend to move ahead with a confirmation vote scheduled for later this week. Democrats, along with several GOP senators — Jeff Flake of Arizona and Bob Corker of Tennessee — are calling for a pause while the Senate investigates Ford’s story.
I find useful the comment from Ilya Somin to frame some of the criminal law and punishment issues now taking shape as the future of the Supreme Court unfolds. Here is part of his answer to the question above:
The Judiciary Committee should investigate the matter, and potentially hold additional hearings, and if necessary delay voting on the nomination, as recently suggested by GOP Senator Jeff Flake. Given that the alleged events in question occurred over 35 years ago, when Kavanaugh was 17 and the accuser 15, getting at the truth may be very difficult, or even impossible. But the committee should at least try.
What should the standard of proof be? A Supreme Court confirmation hearing is very different from a criminal trial, where guilt must be proven beyond a reasonable doubt. Denying a person a lifetime position of vast power on the nation’s highest court is not the same thing as taking away his or her liberty. It is reasonable to set a lower threshold for the former than the latter.
At the same time, it would be a mistake to put nominees in the position of having to definitively prove that accusations leveled against them are false. If that becomes the norm, virtually any nomination could be derailed by unsubstantiated accusations concerning alleged wrongdoing that occurred decades ago. I would thus tentatively suggest that the right standard is that of preponderance of evidence. If the evidence indicates that it is more likely than not that a Supreme Court nominee is guilty of serious wrongdoing, that should be sufficient to reject the nomination.
There is some merit to the idea that we should discount accusations about long-ago events that occurred when the perpetrator was a minor. But whether such issues can be ignored completely depends on the seriousness of the charge and the importance of the position for which the person is being considered. Sexual assault is a serious crime and a seat on the Supreme Court is a position of vast power.
The situation may change radically if other women come forward with plausible accusations of sexual assault or harassment. Regardless, fair-minded observers should keep an open mind and should encourage the Senate to conduct as unbiased an investigation as possible. Sadly, that may be too much to expect in this era of poisonous partisan bias.
September 17, 2018 at 09:38 AM | Permalink
Comments
What should the Senate do? Let's see:
The Professor was able to name an accomplice (who happens to still be friends with Kavanaugh and who has a prediliction for posting pictures of young, scantily clad girls...the younger the better)
She took a polygraph - passed
She has corroborating witnesses that she told years ago
Including written notes by her therapist
She has now said she will testify ....UNDER OATH....IN PUBLIC...as to what she knows
She is a professional woman with a doctorate
Kavanaugh....already lied at least four times under oath about different issues related to his past work.
In sum, Kavanaugh should withdraw; if not, the Senate should vote NO.
Posted by: Mary from Vermont | Sep 17, 2018 1:26:31 PM
Well, it is obvious that the Senate is not going to vote "no" at this stage because if there was a realistic chance that the Senate was going to vote no people would not be talking about a "delay" or a "pause;" they would be talking about stopping it. This hullabaloo is an exercise in peremptory delegitimization; its purpose is to continue the narrative that Republicans have a "women" problem so that when the Court votes to overturn, gut, or otherwise undo Roe v Wade the Times and the Post can breathlessly remind everyone that two of the conservatives (Thomas and now Kavanaugh) were accused of sexual misconduct and so that ruling should be seen as nothing more than a continuation of Republican hostility to the female gender.
The odd thing is that the more that liberals claim that Republicans have a women problem the more women seem to vote Republican. Trump is a notorious womanizer and he still manged to capture 41% of the female vote.
Posted by: Daniel | Sep 17, 2018 4:56:29 PM
Sic Semper Tyranus has just posted inside dope on the society in which both Kavanaugh and Ford grew up. The word in that community is that Ford was "boy crazy" in those days. She left the community as did her parents. Kavanaugh stayed. People there don't like lying nymphos like Ford. She is an ass and a lying ass at that. May she be taken down emphatically and rapidly for the force of lying un-American evi that she is and that she represents.
Posted by: restless94110 | Sep 18, 2018 12:11:51 AM
https://www.brennancenter.org/blog/brett-kavanaugh-should-call-public-investigation-sexual-misconduct-allegations-against-him
I'll just leave this here for posterity sake.
On anotehr note, I noted a typo in my post above. It should be "preemptory delegitimization" as in an attempt to delegitimize an action before it is taken.
Posted by: Daniel | Sep 18, 2018 5:06:05 PM
