Law & the Courts

It’s a Set-up

Supreme Court nominee Brett Kavanaugh testifies during the second day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., September 5, 2018. (Joshua Roberts/Reuters)
If Ford won’t agree to testify, hold the vote tomorrow as planned.

In my column yesterday, I contended that the unverifiable sexual-assault allegation against Judge Brett Kavanaugh bore “all the hallmarks of a set-up.” I based that assessment on the patently flimsy evidence, coupled with Senate Democrats’ duplicitous abuse of the confirmation-hearing process. To repeat myself:

If the Democrats had raised the allegation in a timely manner, its weakness would have been palpable, it would have been used for what little it’s worth in examining Kavanagh during his days of testimony, it would be put to rest as unverifiable, and we’d be on to a confirmation vote. Instead, we’re on to a delay — precisely the Democrats’ objective. They want to slow-walk Kavanaugh’s confirmation vote until after the midterms, in the hopes that they swing the Senate in their favor and have the numbers to defeat the nomination.

Well, whaddaya know: Late last night, the partisan Democratic attorneys retained by the putative victim, Christine Blasey Ford, delivered a letter to Senator Chuck Grassley (R., Iowa), the Judiciary Committee chairman, contending that before any hearing at which she is summoned to testify takes place, there must be a “full investigation by law enforcement officials [to] ensure that the crucial facts and witnesses in this matter are assessed in a non-partisan manner.”

My personal favorite part of the missive is the lawyers’ complaint that, based on published reports, it seems that some of the senators have already “made up their minds” about Professor Ford’s story. This takes some gumption, coming from Democratic activists who are working in tandem with Democratic senators who decided to vote against Judge Kavanaugh long before the hearing started. The lawyers utter this tripe while in the middle of a transparent gambit to block the nomination by delaying it interminably — or at least until after the November election.

What a crock.

The committee had invited Ford to testify at a hearing on Monday of next week (September 24). This was more solicitude than the allegation merits given the Democrats’ willful abuse of the process. Ford should have been invited to submit her claims in writing, Kavanaugh could have been asked to respond, and the committee could have assessed the allegation — a 36-year-old alleged incident that the claimed victim, then 15, did not mention for 30 years, cannot fix in time and place, and claimed to want anonymity about, and which is flatly denied by the only other witnesses, Kavanaugh and his friend Mark Judge, then 17-year-old high-school students.

The committee could have weighed Ford’s allegation against the mountain of contrary information posited in favor of Kavanaugh’s character, and his treatment of women and girls, professionally and socially, over the last three dozen years. (There is also, we might remember, the — apparently — small matter of the 300 appellate opinions Kavanaugh has penned since his appointment twelve years ago to one of the nation’s most distinguished courts.) As in any formal proceeding (other than a kangaroo court), the committee could also have considered that the partisans with the greatest incentive to publicize derogatory information about Kavanaugh — if they believed it to be true — instead sat on it, springing it at the last second in a palpable attempt to obstruct the committee’s vote on the nomination (which they were certain to lose). The committee vote, scheduled for Thursday, could have gone forward.

Instead, the vote was delayed to provide Ford an opportunity to testify. This was wholly unnecessary under the circumstances, but the committee went the extra mile in order to exhibit sensitivity to Ford’s alleged trauma. Rather than accept, however, Ford’s partisan Democratic lawyers countered that there must be an investigation first — never mind that the committee hearing is an investigation of the only thing that matters: how the Senate should exercise its constitutional advice-and-consent duty.

Four points, to state the obvious.

First, in no case does even the most sympathetic, convincing victim of a crime get to dictate the terms of the investigation.

Second, in any sexual-assault investigation, an interview of the alleged victim is among the first things that must be done. Here, moreover, it would be the first thing, since after 36 years a forensic investigation is not possible. Because the alleged victim’s version of events would dictate the course of the rest of the investigation, it would be absurd to delay an interview.

Third, as long as Ford’s counsel want to talk about regular, independent investigations, we should note that there is not a police organization in America that would entertain her allegation, in light of the lapse of time and the long-ago exhaustion of the statute of limitations. Professional investigators understand only too well the inherent unreliability of allegations raised in the manner Ford’s have been raised. The only relevance of this alleged incident is to a Senate function, so it is for the Senate committee to decide how to proceed.

Fourth, as Ford’s lawyers well know, in our adversary system, we do not submit disputes to a team of independent expert investigators. We have advocates for each side — partisans — make the case as well as it can be made from their side’s perspective, and we let the other side attack with all its partisan might. We allow each side to examine the other’s witnesses. Based on this often heated clash, we expect that members of the public will be able to figure out what information is reliable, what is nonsense, and what the truth is. That is the process we use for deciding life-and-death criminal sentences, as well as civil judgments that can be financially ruinous. We have used it for centuries because it works.

It is fashionable throat-clearing at this point to offer some vertiginous, ostentatiously sympathetic twaddle about how Professor Ford is credible in the sense that she truly believes what she has claimed, yet mistaken about . . . well . . . everything that matters. Sorry, I’m a simple man. What’s happening here is pure BS.

I don’t know if something awful really happened to Ford when she was 15. None of us will ever know. Apparently, Ford herself does not know basic facts either, since she cannot tell us where and when the alleged assault happened, and what she did in the aftermath. Giving her the benefit of the doubt that it happened as she claims it happened, she hasn’t come close to establishing that Brett Kavanaugh, as opposed to some other kid she has forgotten, was her assailant; that is, she has not established that her memory of the assailant can be trusted when she cannot recall other rudimentary details. We can feel sympathy for her while nevertheless inferring that she does not want to testify because she cannot explain the oddities of her account. Or we can justifiably suspect that the whole thing is a partisan stunt.

If Democrats had believed Ford’s story was convincing, and had followed the committee-hearing process in good faith, we’d have heard about it in July, and we’d have been hearing about nothing else since — especially during the hours upon hours that Kavanaugh answered aggressively provocative, politically loaded questions under oath. Senator Feinstein knew about Ford’s allegation all that time and never uttered a peep about it — not in face-to-face interviews with Kavanaugh or in her rounds of questioning at the hearing. And don’t tell me Feinstein had to stay mum to honor Ford’s desire for anonymity. There is good reason to believe Ford had no intention of remaining anonymous (hiring Democrat-activist lawyers, taking a polygraph, etc.). But even if Ford truly wanted to remain unidentified, Senator Feinstein could easily have questioned Kavanaugh about the purported incident without mentioning Ford’s name. That would have preserved anonymity while adhering to the hearing process. Instead, the Democrats’ ranking committee member contemptuously undermined the committee’s process, and now other Senate Democrats are following her lead.

In the meantime, Judge Kavanaugh is presumed innocent, and his unambiguous claim of innocence rings true in the context of everything else we have learned about him.

When someone is accused of criminal conduct, the burden is not supposed to be on the accused to convince us that it didn’t happen. There must first be convincing evidence that it did happen before the accused is called on to answer the charge. Yet Judge Kavanaugh did not remain silent. He has insisted on answering, essentially proclaiming: “It is not just that I am not guilty; I am innocent. It is not just that this allegation hasn’t come close to being proved; I did not do it. And I am prepared to testify to that effect, publicly or in closed session, anytime, anyplace.”

As I argued yesterday, you are not going to have decent, meritorious people in law and politics if Democrats are permitted to mug Kavanaugh the way they mugged Judge Bork and Justice Thomas, the way they try to mug every Republican judicial candidate whose nomination threatens to close off the courts as an avenue of radical social change — i.e., whose confirmation makes it more likely that the Left will have to try to convince voters and lawmakers in the democratic process, rather than have unaccountable judges impose progressive pieties.

The long-term goal here is to make the judicial-confirmation process so notoriously savage and demeaning that no sensible, well-meaning conservative or moderate person would agree to put himself and his family through it. The idea is to stock the courts with nothing but progressives and mediocrities willing to roll over for progressives. It is a disgrace that this should happen in this republic, and in connection with the courts, which are not supposed to be political forces, but which have been converted into an uber-political institution that progressives are desperate to control.

The short-term goal is to delay Kavanaugh’s nomination. Democrats should not be allowed to get away with it.

Give Professor Ford until noon today to accept the committee’s unnecessarily indulgent invitation to testify on Monday. If she has not accepted by the deadline, Senator Grassley should proceed with the committee vote tomorrow (Thursday) as previously scheduled. If Democrats scream bloody murder, who cares? They’re a one-trick pony. They are going to scream bloody murder no matter when the votes are taken.

No more delay. It only rewards the mugging and encourages more of it.

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