Should Kavanaugh become a Supreme Court Justice?

The nomination of Brett Kavanaugh has been a political showdown. The Democrats have had particular concerns over Kavanaugh’s position on Roe v. Wade (abortion rights) and limits of presidential prosecution while in office (Kavanaugh wrote about the inappropriateness of a president being prosecuted while in office following his work with the independent counsel investigation of Bill Clinton). Still, his nomination looked secure at least within the Republican camp, and–as a majority party–it seemed as though it would continue as planned.

Then, came the allegation of sexual assault in high school.

After some back and forth on how to proceed, Prof. Christine Blasey-Ford came forward to give the Judiciary Committee what is pretty uniformly considered a convincing testimony of an incident in high school when she says Kavanaugh assaulted her. Judge Kavanaugh also gave a strong testimony that denied nearly everything she said.

Democrats requested a full FBI investigation before the vote; instead Republicans called a vote for Friday, the day after the testimonies, probably to push through the nomination before midterm elections, when they could lose majority control in Congress.

President Trump spoke out against the investigation as well. But, Republicans were backed into a corner when Sen. Jeff Flake of Arizona broke ranks and declared he would not vote to confirm Kavanaugh without an inquiry.

We’re taking another look at Brett Kavanaugh, the Supreme Court nominee, this time through the lens of an accusation of sexual assault.

Based on what we know right now, should Kavanaugh be given a lifetime appointment to the highest court in our country?

Confirm him.

unsupported testimony from a long time ago

An outside prosecutor was used during the Judiciary Committee testimonies to question Blasey-Ford and Kavanaugh in lieu of the Republican senators doing the questioning. Afterward, this prosecutor, Rachel Mitchell, summarized why she did not find Blasey-Ford’s testimony to be credible: she said Ford did not have a consistent account of the assault, including the date it occurred; she said Kavanaugh wasn’t named in the notes from her therapist; and she said Ford has no recollection of important details of the assault, like how she got home that night or where the house was.

Mitchell also said that Mark Judge, Patrick Smyth and Leland (Ingham) Keyser were named as witnesses, and as being present at the party, yet none have confirmed this.

statute of limitations

In 1982, attempted rape was considered a misdemeanor and had a one-year statute of limitations. Now, rules have changed, and attempted rape is considered a felony.

Lisae Jordan, the executive director and counsel for the Maryland Coalition Against Sexual Assault explained to the Washington Post: “Maryland laws on sex crimes have evolved significantly since the early 1980s. In 1982, there was little awareness of the impact of sexual violence, assaults that did not involve vaginal intercourse were not even considered sex crimes, and many viewed sexual assaults by acquaintances as inconsequential. It’s astounding that any woman ever reported rape.”

multiple background checks

Six FBI background checks have turned up no evidence of misconduct by Kavanaugh. But, as the Wall Street Journal reported, the FBI does not consider information that happened before a candidate is under 18 years old.

another attempt to derail the nomination by the Democrats

A letter written by Prof. Ford was sent to Diane Feinstein, the ranking minority leader on the Committee. In the letter, Feinstein was asked to keep the information confidential, which she did. The information was leaked, however, and came to light at the end of the nomination process, which is also near the date of midterm elections. Since the information is generally regarded to be bad for Republicans who support the nomination, and certainly bad for the nomination, Feinstein is accused of deliberately stalling the disclosure of the information for maximum benefit to the Democrats.

Don’t confirm him.

partisanship has no place on the Supreme Court

These are Kavanaugh’s words, from his testimony:

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

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades…
And as we all know, in the United States political system of the early 2000s, what goes around comes around.

Professor of Law at DePaul University and Yale graduate David Franklin tweets about the ethics violation Kavanaugh’s words represents:

Franklin summarizes:

Regardless of who is right about events of 36 years ago, and regardless of how aggrieved Kavanaugh feels – even if he is rightly aggrieved – vowing retribution against a political party is disqualifying.

his behavior has no place on the Supreme Court

In his testimony, Judge Kavanaugh was, at times, angry and disrepectful, sulky and boastful. Now, this doesn’t mean those emotions aren’t reasonable considering a wrongful accusation: for example, I might be angry, disrespectful, sulky or boastful if I had to go through this.

But I’m not a Supreme Court nominee.

They are supposed to be better, above the fray–judicious, in every sense of the word. Apolitical, dispassionate, clear-thinkers–these are the men and women the country needs to lead us toward the best future possible.

An example from the hearing:

Senator Amy Klobuchar asked Kavanaugh if he’d ever had so much to drink he blacked out. Kavanaugh seemed angry by the question and responded, “have you had a blackout?”

It might’ve been a reasonable question if Klobuchar was a Supreme Court nominee accused of assaulting a woman during a period of time the accuser says he was drinking heavily. But she’s not. Kavanaugh is.

lying under oath

We know President Trump lies. Republicans, Democrats–even Fox News readily admits that the President lies. He doesn’t seem to care, nor does his base. Maybe it’s a cultural change? Maybe it’s a turning away from exactness and science and academia? Whatever the case, Brett Kavanaugh doesn’t appear to worry too much about lies either.

We mentioned a lie he told when he was nominated, regarding a statement he made about President Trump’s process for choosing a judge. It was a little thing, really, but worth noting because it definitely was an un-truth.

A bigger un-truth: he mentioned in his testimony that his high-school beer drinking had been legal, because he was 18, and the drinking age in Maryland was 18 at the time. But he was 17 during the summer of 1982 (born in February, 1965) and the drinking age in Maryland at the time was 21.

Clarence Thomas hearing

Having watched both the Brett Kavanaugh/Christine Blasey-Ford and Clarence Thomas/Anita Hill hearings, I’m struck by the similar approaches by the judges: both came out swinging at his accuser, both admitted to nothing and put the blame back on the committee for having allowed the testimony to happen. Thomas accused the Committee of racism; Kavanaugh went with partisan politics.

Interestingly, in 2016, an Alaska attorney, Moira Smith, wrote on Facebook about her experiences as a victim of sexual misconduct dating back to 1999.

“At the age of 24, I found out I’d be attending a dinner at my boss’s house with Justice Clarence Thomas,” she said. “I was so incredibly excited to meet him, rough confirmation hearings notwithstanding. He was charming in many ways — giant, booming laugh, charismatic, approachable. But to my complete shock, he groped me while I was setting the table, suggesting I should ‘sit right next to him.’ When I feebly explained I’d been assigned to the other table, he groped again … ‘Are you sure?’ I said I was and proceeded to keep my distance.”

This was the first time Smith had talked about it, spurred to action by watching the now famous “Grab ’em by the pussy” remarks on Access Hollywood, made by presidential candidate Donald Trump.

Marcia Coyle, a highly regarded Supreme Court reporter for The National Law Journal,  wrote about Smith’s allegation, which was confirmed by Smith’s roommates and her former husband.

If true, it’s evidence that the vetting process for Supreme Court nominees doesn’t always work, but the coming-out-swinging tactic does.

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