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:
See also here:
On why people should not be convicted in the court of public opinion, see here:
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.”
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.”
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’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?”
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!)
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[.]”
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.”
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.
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.