Final Word on Kavanaugh

A Final Word* on Now-Justice Kavanaugh’s Confirmation

By Ken K. Gourdin

Protesters accosted Senators on the Hill in an effort to sway their votes on the confirmation of former District of Columbia Circuit Court Judge and current U.S. Supreme Court Justice Brett Kavanaugh to a seat on the latter Court. Justice Kavanaugh stood accused of acts of impropriety (including sexual assault) toward women during high school and college.

The oldest of the accusations against then-teenager Brett Kavanaugh stemmed from an incident which allegedly occurred in the early 1980s when he attended Georgetown Preparatory School in the Washington DC area. Christine Blasey Ford alleged that an inebriated Kavanaugh sexually assaulted her. The most recent of the accusations against him stems from an incident later in the 1980s when Judge Kavanaugh attended Yale University, where Deborah Ramirez alleged that Judge Kavanaugh committed sodomy on her—or at least, he tried to—as that crime is defined in my state.

Judge Kavanaugh’s opponents have vowed to impeach him for allegedly lying to the Senate. Given that the United States Senate confirmed Judge Kavanaugh by only the slimmest of margins, and that it remains to be seen how the makeup of the House of Representatives and of the Senate, respectively, will change in the midterm elections, impeachment does seem, in some ways, to be more than an idle threat.

Given the fact that Judge Kavanaugh was convicted in the court of public opinion of the various forms of wrongdoing of which he stood accused, his many detractors lamented his elevation to the United States Supreme Court despite their strenuous efforts to prevent it. As undesirable as it might seem to have an alleged sexual predator sitting on the nation’s highest court, however, Judge-cum-Justice Kavanaugh’s confirmation is a vindication of several long-held, deeply-rooted principles of common law jurisprudence. Even if someone is antipathetic toward Judge-now-Justice Kavanaugh or toward his elevation to the nation’s highest court, if one is unwilling to extend these rights to someone with whom she disagrees, one should beware lest others conclude that such rights are inappicable to one who seeks their protection. Among them are these:

1. That a person is innocent until proven guilty – As hard as his detractors attempted to upend that bedrock principle of virtually every common law jurisdiction on the face of the planet, fortunately, they were unsuccessful in doing so (at least in this instance). Even given the facts that: (1) sexual assault is deplorable, and (2) someone engaged in conduct described toward Christine Blasey Ford, Julie Swetnick, and Deborah Ramirez, there appears to be a complete paucity of evidence that Brett Kavanaugh did so.

2. That a person is entitled to due process – At a minimum, due process entails (a) notice, and (b) an opportunity to respond. Given the fact that he was “tried” in the “court” of public opinion and in the media, respectively, and given the fact that ranking minority member of the Senate Judiciary Committee Senator Dianne Feinstein (D – CA) sat on the letter from Dr. Christine Blasey Ford detailing the original allegations against Justice Kavanaugh for months, it would seem that this principle was violated at least in spirit, if not in actual fact.

3. That a person should have the right to confront his accusers and cross-examine the evidence against him – While it is true that Judge Kavanaugh did not face criminal charges,The manner in which information regarding the allegations against Justice Kavanaugh was withheld from him, presumably in order to be able to spring it upon him as an 11th-hour surprise seems, to the extent that he should have been afforded this right in Senate advise-and-consent proceedings, to have denied him this right.

4. That, for all but the most serious offenses and the most serious civil wrongs, if an accuser waits too long to bring her case, it is barred from consideration – I don’t doubt that something akin to what Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick said happened to them actually happened to them. I do, however, have grave doubts about whether Brett Kavanaugh was involved in any way. I would be more inclined to believe what they say now-Justice Kavanaugh did—if it weren’t for the timing of their accusations. Justice Kavanaugh’s detractors have said that statutes of limitations are only applicable in civil and criminal proceedings, respectively, and not in the court of public opinion nor in Senate advise-and-consent proceedings. But even if “all he loses is a job” (as his detractors put it) as opposed to being subject to a civil or criminal penalty, there’s still the not-insignificant matter of his previously-spotless reputation—which has now had a permanent shadow cast upon it even though he has been confirmed—to consider.

Others are free to choose what rules of evidence and procedure they will apply in the court of public opinion, but I don’t think statutes of limitations should be tossed aside so lightly. There’s a reason why “cold” cases are so hard to solve and to prosecute: Over time, memories fade and change; witnesses disappear; and evidence degrades. Finally, all we’re left with is exactly what we have in the accusations against Justice Kavanaugh: One person’s word against another’s—provided they, themselves, have not disappeared.

* Although, if Democrats are successful in carrying out their threat to institute impeachment proceedings agains Justice Kavanaugh, doubtless, I will have more to say on the matter.

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Douglas High School Shooting

My Response to Commentary on the Shooting at Marjory Stoneman Douglas High School in Parkland FL

By Ken K. Gourdin

I responded to City Weekly writer Aspen Perry’s feature, “Safety First,” in which she decried opposition to young activists agitating for gun control in light of the shooting at Parkland, Florida’s Marjory Stoneman Douglas High School.  Ms. Perry’s piece can be found here (this and all other links last accessed October 18, 2018):  https://www.cityweekly.net/utah/safety-first/Content?oid=8383261.  My response, as it appeared on line at City Weekly’s Web site here:  https://www.cityweekly.net/utah/feedback-from-april-12-and-beyond/Content?oid=8570363.

I responded to Ms. Perry thus:

Yes, it’s important to listen to those who are traumatized by school violence. While it’s true that I was never the victim of an active shooter at school, as someone with a disability who was “mainstreamed” in school from day one, I was regularly the target of teasing, taunting and, in some cases, physical intimidation during my early school years. No school official responded effectively to the problem until junior high.

While the shooting at Marjory Stoneman Douglas High School is tragic—and while it indicates we still have a long way to go—we’ve come a long way since my elementary school experience many years ago. No matter where one stands on the issues of gun control or of how to prevent and to respond to school violence, one should neither vilify those who favor solutions which are different than the ones s/he favors, nor should one dismiss the legitimate fears and concerns of victims. Such actions are not conducive to effective public dialogue, nor do they contribute to the search for solutions.

Any school which—or any official who—instills unnecessary fear in students while attempting to prepare them for an active-shooter situation is doing it wrong. It’s important to discuss probability when preparing for such events: While preparation is important, the likelihood of a huge number of (still unlikely) untoward random events occurring in students’ lives still is greater than the chance that any of them will face an active-shooter situation at school.

Broward County, Fla., Sheriff’s Cpt. Jan Jordan, who instructed deputies to not enter the school, did exactly the wrong thing in responding to [the shooter’s] rampage. Apparently, she forgot that—while it’s true that, as the title of an old Adam-12 episode pointed out, “A dead cop can’t help anyone”—her first priority, rather than keeping her deputies safe, is to keep the public safe. That’s why the old advice of responding to active-shooter situations: “Set up a perimeter and wait for SWAT,” was abandoned nearly 20 years ago after the Columbine High School shooting.

The contrast between law enforcement’s response to [the shooter’s] rampage and its response to Sulejman Talovic, who began indiscriminately shooting patrons at Salt Lake City’s Trolley Square on Feb. 12, 2007, is instructive. While it is tragic that lives were lost on both occasions, in the latter case, officers didn’t simply “set up a perimeter and wait for SWAT.” Rather, the first officers to arrive on the scene immediately sought out and confronted the shooter, saving numerous lives in the process.

The post-9/11 advice of, “If you see something, say something” was followed by a tipster who reported to the FBI that [the Parkland shooter] said on social media that he wanted to be “a professional school shooter.” One of the challenges of “the wild, wild web” is that such information can come from anyone and from any place, which makes it difficult to follow up on. However, the FBI admitted that the tip was mishandled, while, by contrast, stories of law enforcement and school officials taking similar information seriously and of responding effectively make the news regularly. Perhaps officials in Florida and elsewhere can learn from them.

Ken K. Gourdin,
Pleasant Grove

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Why Keep Trying?

Thoughts on Why I Keep Trying

By Ken K. Gourdin

For background on the issues I discuss herein see the following addresses, last accessed October 8, 2018: https://greatgourdini.wordpress.com/2014/11/16/beating-the-odds/ and https://greatgourdini.wordpress.com/2017/05/28/law-school-wrong-road/. Recently at Mormon Dialogue and Discussion, I wrote:

I recognize that much of what I have experienced, many of you would scoff at and say dismissively (and rightly so, in my view), “Hmph! He considers that a trial? He should walk a mile in my shoes! Then, he’d know what real trials are!” Touché! I get it, totally. I really do. But I can only speak to what I know. For me, on some subjects, The Heavens Are Absolute, Pure Brass … perhaps Brilliantly-Polished Brass, mind you, but still Absolute, Pure Brass, nonetheless. Honestly, I have absolutely no idea why. Perhaps I really am not nearly good enough. Or perhaps it’s simply part of my personalized, individualized trial. Or perhaps it’s simply a result of living in a fallen world. Or perhaps it’s a combination of these reasons, along with others too numerous to mention.

[Referring to some leaders in the Church of Jesus Christ of Latter-day Saints who have betrayed the trust placed in them, I wrote] Anyone who has violated a sacred trust likely will not look forward to standing in front of Our Maker trying to concoct plausible reasons for the violation, but his standing before God is between God and him, and my standing before God is between God and me. The latter is more than enough for me to worry about. Speaking solely of my personal situation and not of anyone else’s circumstances, I might be led to ask, “Why has [x] happened?” Or, if it’s an earnestly-sought-after, righteous desire, “Why hasn’t [x] happened?”

And yet, other times, I’ve had absolute peace spoken to my very soul, such as the experiences I’ve related which have occurred as I’ve lain on an operating table waiting to be put under.  The only answers I really have are: (1) God isn’t Santa Claus, who gives “presents” to His “good” children and “lumps of coal” to His “bad” children; and (2) Essentially, God has told me, in light of the earlier “did-I-not-speak-peace-to-your-mind” experiences I’ve had with Him (see Doctrine and Covenants 6:22-23), “Yes, Ken.  Sure.  If you choose, you can discount the ‘Did-I-not-speak-peace-to-your-mind’ experiences we’ve had together. If you choose, you can accord much greater weight to the ‘Brass-Heavens’ experiences. But that’s your choice, and it’s one only you can make. Or, you can choose, as I’ve told you before, to not forget how you felt on January 24 and February 14, 1984, and on June 7, 1985, and on other, similar occasions.”

No holds barred and no punches pulled? Honestly, there are times when a big part of me wants to “curse God, and die” (and, frankly, even in a literal sense), as Job’s wife told him he should do (see Job 2:9). Because, honestly, sometimes I wonder, what in the world is the point to my continued existence when a big part of the last quarter-century feels, for me, like Groundhog Day writ large: “Yep! Been here, done this!” :rolleyes: No, I’m not going to do anything drastic, but it’s not because I’m all aquiver with anticipation about what’s around the next bend (“Tomorrow! That’s the day I’ll finally get my big break!”), but, rather, simply because I hope (and believe) that the Apostle Paul was right when he wrote the Romans, “All things [not just the “good” stuff and not just the things we understand, but all things] work together for the good of them that love God” (Romans 8:28).

As much as I might want to “go away,” however, just as many of Christ’s disciples “went back, and walked no more with Him” after hearing His “hard sayings,” when Christ asks me, “Will ye also go away?”  I hope to answer as Peter did: “Lord, to whom shall (I) go? thou hast the words of Eternal Life.” (See John 6:66-69).

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More on Now-Justice Kavanaugh

More on Judge-cum-Justice Brett Kavanaugh’s Elevation to the United States Supreme Court

By Ken K. Gourdin

No one feels more keenly the need to move on from the controversy surrounding District of Columbia Circuit Court Judge and United States Supreme Court nominee Brett Kavanaugh on this site than I do. However, the controversy has persisted even now that the Senate has approved on Judge Kavanaugh’s nomination, and the controversy isn’t simply about the United States Supreme Court, or about a single nominee to the Court. It implicates much broader, weightier issues, such as the rule of law, due process, the principle that someone who is accused of a crime is innocent until proven guilty.

Mormon Women for Ethical Government (notwithstanding the broader mandate indicated in its title, there’s a good argument to be made that it can be characterized fairly as an “anti-Trump” group—but that’s another argument for another day) has called for a delay in considering Judge Kavanaugh’s nomination, along with member of the Church of Jesus Christ of Latter-day Saints and member of the Senate Judiciary Committee Senator Jeff Flake (R – Arizona), to permit adequate consideration of the allegations of sexual assault against him. This discussion occurred before the Senate Judiciary Committee voted 11-10 along party lines to send Judge Kavanaugh’s nomination to the full Senate. I wrote:

If Judge Kavanaugh’s nomination is problematic because senators deem the allegations against him to be credible, then the Senate Judiciary Committee should do what it does with any other problematic nomination: A majority of the Senate Judiciary Committee should vote against forwarding the nomination to the full Senate. Failing that, the Senate should vote against confirming Judge Kavanaugh’s nomination to the United States Supreme Court. It is very unlikely that local authorities will investigate the allegations against Judge Kavanaugh because the statutes of limitations of any alleged crimes long since have run. It is very unlikely that the Federal Bureau of Investigation will investigate the allegations against Judge Kavanaugh because the crimes alleged are not within its jurisdiction.  In any case, as others have pointed out, Judge Kavanaugh has undergone six prior FBI background checks in connection with previous federal service, none of which found any misconduct of the sort being alleged here.  (Arguably, such background checks aren’t designed to find misconduct of the sort being alleged here.)

As then-Senator Joe Biden so astutely and pointedly reminded his colleagues (separating every single syllable he uttered for emphasis) during the confirmation hearings for then-Judge Clarence Thomas when those colleagues pointed out that the FBI found no wrongdoing on then-Judge Thomas’s part, “The F-B-I draws no con-clu-sions! Per-i-od!” Ironically, however, apparently, former Vice-President Biden now is among those urging that the FBI investigate Judge Kavanaugh (again!). Why? “Be-cause we need to de-lay this no-mi-na-tion for as long as poss-i-ble! Per-i-od!”

For more of my thoughts on Judge Kavanaugh’s nomination, see here:

https://greatgourdini.wordpress.com/2018/09/18/of-s-ct-nominees-11th-hour-surprises/

See also here:

https://greatgourdini.wordpress.com/2018/09/26/of-supreme-court-nominees-11th-hour-surprises-revisited/

On why people should not be convicted in the court of public opinion, see here:

https://greatgourdini.wordpress.com/2013/07/31/ethics-of-zealous-defense-ii/.

The thread’s originator then commented, “I’m not sure what the group’s funding has to really do with their request though. Regardless of [the group’s] motives, all they’ve asked for is that the senators move slowly. That seems like a reasonable thing to do regardless of who asks that it be done.”

I responded:

It [does] depend[ ] on the motives underlying the request. Democrats hope to retake the Senate in this year’s midterm elections. If they do, there’s a strong likelihood that no one will be confirmed to fill any vacancies on the Supreme Court before January 2020, at the earliest. Make no mistake: That’s precisely why so many people are urging that Judge Kavanaugh be investigated (again!) and that his nomination be slow-walked. That’s also at least part of the reason why Senator Dianne Feinstein (D – CA) sat on the letter from Judge Kavanaugh’s first accuser for months rather than bringing it immediately to the Senate Judiciary Committee’s attention.

The thread’s originator commented, “I think the bigger problem seems to be that whether or not someone believes the allegations to be credible almost completely falls along party lines. There is very little unbiased thought going on.”

I replied:

From what I’ve seen of his public statements on the matter, Judge Kavanaugh seems rather guileless, entirely earnest, and completely sincere. However, even if one disagrees with my assessment of him, and even if my voice is simply yet another voice in the cacophonous din of millions of voices in the court of public opinion, the timing and lack of detail in the allegations against Judge Kavanaugh seem very suspect. (As I’ve already noted, Senator Dianne Feinstein (D – CA) has known about Judge Kavanaugh’s first accuser’s allegations for months.) There’s a reason why the applicable statutes of limitations would bar civil suit and criminal prosecution against him. Such allegations should not be permitted to hang forever over the head of an accused like the Sword of Damocles until someone finally decides to cut the thread. (And remember: I’m one of the most pro-police, pro-prosecution people you will ever run across in Cyber space.) While everyone else is free to pooh-pooh my statute-of-limitations defense of Judge Kavanaugh in the court of public opinion, for me, the same rules apply in that court as apply in a court of law, for much the same reasons.

I don’t think the allegations are credible because: (1) there is almost no evidence to support them; and (2) because they are over 30 years old. If they are credible enough to scuttle Judge Kavanaugh’s nomination to the Supreme Court now, they were credible enough to scuttle his nomination to the United States Court of Appeals for the District of Columbia Circuit, as well as his hiring or appointment to any of his previous jobs in federal service. From what I’ve seen of his public statements on the matter, Judge Kavanaugh seems rather guileless, entirely earnest, and completely sincere. However, even if one disagrees with my assessment of him, and even if my voice is simply yet another voice in the cacophonous din of millions of voices in the court of public opinion, the timing and lack of detail in the allegations against Judge Kavanaugh seem very suspect. (As I’ve already noted, Senator Dianne Feinstein (D – CA) has known about Judge Kavanaugh’s first accuser’s allegations for months.) There’s a reason why the applicable statutes of limitations would bar civil suit and criminal prosecution against him. Such allegations should not be permitted to hang forever over the head of an accused like the Sword of Damocles until someone finally decides to cut the thread. (And remember: I’m one of the most pro-police, pro-prosecution people you will ever run across in Cyber space.) While everyone else is free to pooh-pooh my statute-of-limitations defense of Judge Kavanaugh in the court of public opinion, for me, the same rules apply in that court as apply in a court of law, for much the same reasons.

Another poster attempted to posit that actions Senate Democrats are taking are necessary because they, alone, lack the power to delay consideration of Judge Kavanaugh’s confirmation, “So,” wrote he, “they have to do this.” I responded, “They have to assassinate Judge Kavanaugh’s character, destroy his reputation, and eviscerate him? No, no they don’t. Fine, vote down his nomination; but don’t assassinate his character and destroy his reputation.”

When the thread’s originator defended Mormon Women for Ethical Government’s call to delay consideration of Judge Kavanaugh’s nomination, I responded:

Thanks in part to the fact that Senator Feinstein sat for months on the letter she received which contains the first allegations against Judge Kavanaugh, the Senate Judiciary Committee hasn’t made effective use of the time it has had to consider Judge Kavanaugh’s nomination or the allegations against him. In light of that, it’s hard to not conclude that pleas that Judge Kavanaugh’s (latest!) nomination should not be “rushed” are nothing more than another delay tactic.

Another poster wrote that South Carolina Senator

Lindsay Graham was waving the morality flag over [former President] Bill Clinton and he seems to have changed flags now, plus you have Turtle Man Mitch [Senate Majority Leader Mitch McConnell (R – KY)] saying he would confirm Kavanaugh regardless of whatever, I thought they are all supposed to keep an open mind about this? If you had a juror say at the beginning of the trial say that regardless of the evidence i’m going to find them guilty, you would disqualify that person.

I responded:

I’m not sure what that has to do with the fact that the same people who were saying that FBI background investigations were worthless in 1991 when it came to then-Judge Clarence Thomas now are saying that it’s absolutely imperative that Judge Brett Kavanaugh undergo a (7th!) FBI background investigation before being voted on in 2018.

That same poster then wrote, “I’d imagine they [the FBI} could sort out who is who and who was where?” I responded, “Sure. Tell us where you were and what you were doing, in detail, on September 26, 1995. Thanks in advance!”

That same poster then wrote, “[C]orrect me if I am wrong but doesn’t the FBI do this normally for [United States Supreme Court Justices]? why are they being prevented from doing their job? what is the republican party hiding that the FBI can’t get involved?”

I responded:

If the FBI had found that Judge Kavanaugh reportedly violated state law in any of the six previous background investigations it had conducted in connection with his previous federal employment (including appointment as a federal judge), no doubt, that information would have been included in the FBI’s report. It’s interesting how, when Republicans tried to appeal to then-Judge-now-Justice Clarence Thomas’s clean FBI background check as evidence that he was fit to be confirmed, then-Senator Joe “Crazy Uncle Joe” Biden apparently felt much different about FBI background checks than former Vice President Biden does today. Then-Senator Biden placed no credence in the report of the background investigation of then-Judge Clarence Thomas because (and he emphasized each individual syllable), “The F-B-I does not reach a con-clu-sion. Per-i-od. Per-i-od.” Today, by contrast, it is absolutely imperative that the FBI conduct yet another investigation of Judge Kavanaugh (because, apparently, in Judge Kavanaugh’s case, somehow (in direct contrast to that of then-Judge Thomas in 1991), “the F-B-I will reach a con-clu-sion. Per-i-od. Per-i-od.” 🙄 Now, the FBI’s (7th!) background investigation of Judge Kavanaugh will, by contrast, finally expose him for the cad he was all those years ago (and heck, given the strength of the evidence underlying these allegations, we might as well conclude that he hasn’t reformed at all and that he’s still a cad! After all, leopards don’t change their spots!)

https://www.realclearpolitics.com/video/2018/09/25/biden_1991_fbi_do_not_reach_conclusions_when_investigating_sexual_misconduct.html

Asking why the FBI cannot launch a criminal investigation into the sexual assault allegations against Judge Kavanaugh, this same poster asked, “[D]oes the US penalize it [sexual assault] in some way? It seem[s] the [R]epublicans treat their own president and sexual assault with a who cares attitude[.]”

I responded:

The United States (i.e., the federal government) neither criminalizes nor penalizes sexual assault (except, perhaps, on federal property, but that’s another subject for another day and is not relevant here, since none of the allegations against Judge Kavanaugh involve crimes that were committed on federal property). State-level crimes are prosecuted and punished by the States, not by the federal government.

When another poster wrote, “[T]here are more women coming forward with accusations. It’s not just one ‘she’ now and it’s not just ‘a woman,’ but ‘women.’” I responded, “And from what I’ve seen, all of these accusations have pretty much the same basis in fact.” That is to say, all of them lack any basis in fact whatsoever.

The poster who asked why the FBI cannot launch a criminal investigation into the allegations against Judge Kavanaugh asked, “Is he going to lose his current job over this? I doubt it[.] What’s wrong with the FBI investigating ‘fake accusations’? you can’t know they are fake unless they are investigated.”

I responded:

None of the accusations against Judge Kavanaugh involve federal crimes. You’ve made much of the name of the FBI, singling out the word, “Investigation.” The word Federal is also in there. If credible allegations of bank robbery were made against Judge Kavanaugh (putting aside any statute of limitations and other such issues which might bar a prosecution), I think the FBI would be very much interested, since bank robbery is a federal crime. Sexual assault is a heinous crime, but it’s also not within the jurisdiction of the FBI.

Another poster commented, “The Supreme Court is the last defense of our Constitution. If [then-Judge, now-Justice Kavanaugh is] appointed and found guilty, Congress can impeach him. I asked, impeach him “[f]or what?” I don’t believe I received a response before the thread was closed, but presumably, the poster was referring, potentially, to impeaching then-Judge, now-Justice Kavanaugh for perjury. While the thread was locked before the conversation could continue, syndicated columnist and National Review editor Rich Lowry evaluates the prospects for success of impeaching Justice Kavaugh for perjury here (last accessed October 8, 2018): https://www.nationalreview.com/2018/10/brett-kavanaugh-perjury-allegations-farce/.

Julie Swetnick signed an affidavit regarding Justice Kavanaugh’s drinking and alleged misbehavior. Keying in on a specific phrase Ms. Swetnick used in her affidavit, I wrote:

“Became aware of” is perhaps the Ultimate Weasel Phrase often used by affiants who want to obscure how they came about their knowledge of events: What did you, personally, see the subject of the affidavit do?  What did you, personally, hear the subject of the affidavit say?  And so on. (“But she wasn’t sworn when she talked to the news reporters, Ken.  She can tell them anything she wants and get away with it!” )  “I saw Brett Kavanaugh spike the punch,” and “I saw Brett Kavanaugh give punch to girls who then went into another room with him,” versus, “I saw Brett Kavanaugh by the punch,” et cetera.

https://www.nationalreview.com/2018/10/brett-kavanaugh-gang-rape-claim-falls-apart/

Another poster accused Justice Kavanaugh of lying repeatedly under oath. I responded:

What’s your real name (along with a few other IRL details I’m sure you won’t mind providing)? I’d like to go pawing through whatever record I can find about you, to determine how truthful you are. (But don’t worry, I don’t have any kind of an agenda or an axe to grind.) I know, I know, your immediate rejoinder will be, “But, Ken, I’m not being considered for a vacancy on the Supreme Court.” But it’s amazing how willing some people are to subject others to standards they don’t wish to have applied to themselves. I think far too many people are far too willing to make Brett Kavanaugh an offender for a word (see Isaiah 29:21; see also Matthew 7:2-5).

Another poster pointed out that Ms. Swetnick contradicted material details contained in her affidavit in subsequent television appearances. I commented:

And can a tenable argument be made that, in obtaining the affidavit from Ms. Swetnick, Mr. Avenatti [her lawyer] suborned perjury? Does Mr. Avenatti have an obligation to do what a reasonable lawyer would do in the same or similar circumstances to verify the factual basis of allegations contained in an affidavit such as Ms. Swetnick’s? I believe he does have an obligation to do so, and, while I am unsure if a failure to meet such an obligation constitutes suborning perjury, the prospect that it does constitute suborning perjury is not so ridiculous on its face that anyone bringing such a charge would be laughed out of court immediately. If someone with sufficient knowledge of the situation were to report Mr. Avenatti’s conduct to the Bar associations of jurisdictions where he is licensed, I believe that a reasonable attorney in Mr. Avenatti’s position would have reason to worry.

Another posted said that due process is not applicable to Senate advise and consent proceedings. I responded:

Nonsense. You’re using an extremely unduly narrow definition of due process with which I think few, if any, lawyers (although, if it needs to be said, I am not one :rolleyes:) would agree. This whole business of, “It’s not really a hearing” or “It’s not really a hearing hearing” or “It’s just a job interview” so, therefore, due process doesn’t apply, seems more than a little disingenuous. What sort(s) of due process should be available in any given proceeding, and what, exactly affording someone such due process in any given proceeding or circumstance might look like may be debatable, but the necessity of due process for any fair proceeding (whether that proceeding be a criminal proceeding, an administrative hearing, Senate advise-and-consent proceedings, or some other type of hearing) is not.

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Mother Shares Bridge-Building Advice

Mother of Special-Needs Child Shares Bridge-Building Advice With Parents

By Ken K. Gourdin

A mother wrote a commentary for Salt Lake City’s Deseret News containing advice for parents who stare at the mother’s daughter, who has special needs and obvious differences. See the commentary here (last accessed September 5, 2018): https://www.deseretnews.com/article/865634727/Parents-What-I-wish-you-would-do-when-your-child-stares-at-my-daughter.html.

I cannot, of course, compare my situation to anyone else’s, and I’m not a parent. My “differences” are less extreme, and perhaps less noticeable; I can only speak to what I know. However, that said, I have Cerebral Palsy. I was “mainstreamed” in school from day one: a blessing because it forced me to engage the world on its terms rather than demanding or expecting that the world would engage me on my terms; a curse, because, as someone who was “different,” I was targeted, ridiculed, and occasionally bullied. The author is right that “shushing” destroys teaching opportunities— opportunities to build bridges instead of barriers, [and] opportunities to foster understanding. It perpetuates misunderstanding, which perpetuates fear, which perpetuates bullying and ridicule.

The parents I respect the most are those who come up to me with their children and ask, “Excuse me, my child has a question for you; do you mind?” My response to such children always is, “Of course not! Ask away!”

Though they might argue that it’s only because they have little choice in the matter, this young lady and her mother are brave souls. It’s easy for me to say, I know, but if I had children, I would encourage them to ask those who are different about such differences, precisely because such inquiries build bridges and increase understanding. In our sadly-divided (and seemingly-evermore-dividing) world, there can never be too many bridges or too much understanding.

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Daycare Provider Charged With Child Abuse

Daycare Provider Charged With Felony Child Abuse

By Ken K. Gourdin

A Utah daycare provider (since she is an illegal alien, I cannot imagine she would be licensed—although stranger things have happened, I suppose) who broke the legs of an infant in her care after the baby would not stop crying has been charged with second-degree felony child abuse, which is punishable by up to ten years’ imprisonment. For coverage of the incident in Salt Lake City’s Deseret News, see here (last accessed September 5, 2018): https://www.deseretnews.com/article/900011627/daycare-provider-arrested-for-allegedly-breaking-infants-legs.html.

To the best of my knowledge, there haven’t been any follow-ups on the story. The woman was able to bail out of jail, so perhaps she is long gone. My first comment was, “It’d be bad enough if [she] had done what she did to her own child. To do it to someone else’s … ? There aren’t words.” Having said that, though, a scripture from the Holy Bible about millstones does come to mind (see Luke 17:2).

Another commenter urged authorities to deport her and to imprison her if she attempts to reenter the country illegally. Referring to another local media outlet’s coverage, I responded:

Mmm-mm. You’ve got that exactly backwards. Since, per KNRS radio news, she wants to be deported rather than doing any time here, I say, don’t let the tail wag the dog by giving her her wish: Once she gets a fair trial (or enters a freely-given, informed guilty plea), let her do every day of her sentence here, then deport her.

However, I can understand completely why she might want to do her time elsewhere: in the eyes of their fellow prisoners, child abusers aren’t very high in status on the prison totem pole, and, thus, are at grave risk of mistreatment at the hands of those same fellow prisoners. In no way do I condone the meting out of such “rough justice,” but I do have to admit that there is a certain (albeit perverse) logic to it.

I admit that, conversely, I don’t understand the logic of hurting a child, period, but I especially don’t understand the logic of hurting one who won’t stop crying. (“You wanna cry, huh? Well, I’ll give you something to cry about!”)

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Bullied Would-Be Bomber to Stand Trial

Alleged Bullying Victim Ordered to Stand Trial in Would-Be Backpack Bomb Weapon of Mass Destruction Case

By Ken K. Gourdin

Salt Lake City’s Deseret News reports that a young man who left a bomb at his school has been ordered to stand trial, at least one of the charges against him being involving his attempt to use weapon of mass destruction. For the News’ coverage, see here (last accessed September 5, 2018): https://www.deseretnews.com/article/900023121/judge-orders-trial-for-utah-student-backpack-bomb-case.html.

Reportedly, this young man was bullied by other students at the school he targeted with his bomb. Because of physical differences (and perhaps other perceived differences) relating to my disability, I, too, was bullied by some of my classmates. My mother recalls wanting to intervene in one instance she observed, before realizing that, eventually, I would need to learn to fight my own battles.

I recognize that all instances of bullying are not created equal. Perhaps the mistreatment to which I was subjected pales in comparison to the mistreatment to which he was subjected. That having been said, while I did think about exacting revenge on my chief tormentors, my intentions involved responding in kind, returning physical intimidation for physical intimidation: While we live in a different time, in which anyone with an Internet connection can learn how to build a bomb, I must admit that the thought of returning “bombing for bullying” never crossed my mind.

Another commenter asked, “Do we violate the [Second] Amendment or do we teach kids not to bully?” Perhaps he intended irony. If so, Cyber space is an exceedingly difficult venue in which to pull that off right. I’m unsure if he ever saw my comment or, if he did, whether he thought it was worth the trouble, time, and effort to respond (he may have thought me idiotic for failing to grasp his obviously-intended irony), but, if, indeed, irony was intended (whether because of my own idiocy or because of his excessive subtlety or the difficulty in conveying obvious irony in writing) I missed it.

I responded, “I’m afraid I don’t follow: How is the Second Amendment implicated here? The Second Amendment protects the people’s right ‘to keep and bear arms,’ not their right to ‘keep and bear weapons of mass destruction.’”

In any case, here’s hoping this young man gets the help he needs and/or that he does not reoffend.

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