Law & the Courts

Who is Dan Collins?

Dan Collins is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California.

Age:  55 (approximate)

Current Position:  Partner, Munger, Tolles & Olson LLP (Los Angeles, CA) 

Education:

  • B.A., Harvard University; summa cum laude (1985); Phi Beta Kappa
  • J.D., Stanford Law School (1999), with distinction; Order of the Coif; Notes Editor, Stanford Law Review

Judicial Clerkships: Judge Dorothy Nelson, U.S. Court of Appeals for the Ninth Circuit (1988-1989); Associate Justice Antonin Scalia, U.S. Supreme Court (1991-1992)

Professional Experience:

  • 1991-1996; 2003-Present: Partner, Munger, Tolles & Olson LLP (Los Angeles, CA)
  • 2001-2003: Associate Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
  • 1992-1996: Assistant U.S. Attorney, U.S. Attorney’s Office for the Central District of California (Los Angeles, CA)
  • 1989-1991: Attorney-Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)

Career Notes:

  • Collins’ practice at Munger, Tolles & Olson focuses on appellate and complex commercial litigation. Over the course of his career, he has argued 36 cases in the Ninth Circuit, including two before the en banc court, and four cases in the California Supreme Court. Mr. Collins has also argued before the International Court of Justice in The Hague.
  • In 2008, Mr. Collins obtained a complete reversal of the largest civil judgment in U.S. history (more than $603 million).
  • While serving in the Deputy Attorney General’s office, Mr. Collins coordinated the DOJ’s efforts on several major legislative and policy initiatives and testified multiple times before the House and Senate Judiciary Committees.
  • As a federal prosecutor in Los Angeles, Mr. Collins prosecuted more than 60 criminal cases, including eight jury trials. Collins was a member of the criminal appeals section, where he supervised the preparation of more than 100 appellate briefs and argued numerous cases before the Ninth Circuit.

Honors:

  • Collins has been recognized nationwide and in California as a leading appellate lawyer by Chambers USA.

 

Law & the Courts

Who Is Ken Lee?

Ken Lee is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California.

Age:  43 (approximate)

Current Position:  Partner, Jenner & Block LLP (Los Angeles, CA)

Education:

  • B.A., Cornell University; summa cum laude (1997); Phi Beta Kappa
  • J.D., Harvard Law School (2000), magna cum laude

Judicial Clerkship: Judge Emilio Garza, U.S. Court of Appeals for the Fifth Circuit (2000-2001)

Professional Experience:

  • 2009-Present: Partner, Jenner & Block LLP (Los Angeles, CA)
  • 2006-2009: Associate Counsel to the President, The White House (Washington, D.C.)
  • July 2005-September 2005: Special Counsel, U.S. Senate Judiciary Committee (Washington, D.C.)
  • 2001-2005: Wachtell, Lipton, Rosen & Katz LLP (New York, NY)

Career Notes:

  • Lee has litigated dozens of consumer class action lawsuits in California, Florida, New York on behalf of companies in a wide variety of industries, including food, technology, and healthcare.
  • He has served as lead counsel in class action and other business litigation matters, and first-chaired jury trials, bench trials, and arbitrations.
  • Lee has also briefed and argued appeals before various federal circuit courts, including the Second Circuit, Fifth Circuit, and the Ninth Circuit.
  • During his tenure in The White House Counsel’s Office, Mr. Lee represented the White House in congressional and other governmental investigations, and provided advice for the President and senior White House officials on a host of legal and compliance issues.
  • Lee has maintained a robust pro bono practice, and has represented several indigent and incarcerated individuals in constitutional litigation.

Professional Associations:

  • Lee is listed as an expert for The Federalist Society and has been a speaker and panelist on the topics of Food & Drug Law, Class Actions, and the Constitutionality of the Affordable Care Act.
  • Lee serves on the Food Law Committee of the Litigation Section of the California State Bar

Honors:

  • In 2018, Los Angeles Business Journal named Mr. Lee one of its “Most Influential Minority Attorneys”
  • In 2015, Mr. Lee was profiled in Super Lawyers and was praised for his “creative strategies” and for “making things happen quietly.”
  • In 2014, The Daily Journal (the largest legal newspaper in California) named Mr.

Lee one of its “Top 20 Lawyers under 40” in California for his class action defense work on behalf of food companies.

Law & the Courts

Judicial Nominations Update

On Saturday, the Senate voted to confirm Brett Kavanaugh to the Supreme Court.  With Justice Kavanaugh’s confirmation, a total of 69 of President Trump’s nominees have been confirmed to the federal bench to date.

Now Senate Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell will return to the task of processing the federal judicial nominees who are still pending before the end of the 115th Congress.

Tomorrow, the Senate Judiciary Committee will hold a hearing on the nominations of Eric Murphy and Chad Readler to the U.S. Court of Appeals for the Sixth Circuit.  This hearing was thrice rescheduled on account of schedule disruptions due to the supplemental hearing held for Kavanaugh in late September.

Here is this week’s update on federal judicial nominations:

Current and known future vacancies:  168

Courts of Appeals:  18

District/Specialty Courts*: 150

Pending nominees for current and known future vacancies:  77

Courts of Appeals:  10

District/Specialty Courts:  67

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Paul Matey (3rd) 4/12/2018 180 No Not yet scheduled
Eric Murphy (6th) 6/18/2018 113 No 10/10/2018
Chad Readler (6th) 6/18/2018 113 No 10/10/2018
Eric Miller (9th) 7/19/2018 82 No Not yet scheduled
Bridget Shelton Bade (9th) 8/27/2018 43 No Not yet scheduled
Allison Jones Rushing (4th) 8/27/2018 43 Yes Not yet scheduled

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Jonathan Kobes (8th) 6/11/2018 120 8/22/2018

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
David Porter (3rd) 4/12/2018 180 7/19/2018
Ryan Nelson (9th) 5/15/2018 147 9/13/2018
Richard Sullivan (2nd) 5/7/2018 155 9/13/2018

Nominees Awaiting Floor Votes: 38

Courts of Appeals:  3

District/Specialty Courts:  35

Nominees Confirmed by the Senate: 69

Supreme Court: 2

Courts of Appeals: 26

District/Specialty Courts:  41

Law & the Courts

Upcoming Senate Action on DOJ AAG Nominations

After the Senate’s vote on Saturday confirming Brett Kavanaugh’s nomination to the Supreme Court, Senate majority leader Mitch McConnell filed cloture motions on the extremely-long-pending nominations of Jeffrey Clark and Eric Dreiband to the positions, respectively, of Assistant Attorney General for DOJ’s Environment and Natural Resources divisions and Assistant Attorney General for DOJ’s Civil Rights Division. The votes on the cloture motions should occur on Wednesday morning.

Both Clark and Dreiband were first nominated in June 2017, some sixteen months ago.

Law & the Courts

This Day in Liberal Judicial Activism—October 9

(Shutterstock)

1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

Law & the Courts

This Day in Liberal Judicial Activism—October 8

The New York Times Building in New York City. (Brendan McDermid/Reuters)

2006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

Law & the Courts

This Day in Liberal Judicial Activism—October 6

2000—Liberal judicial activists eagerly seize opportunities to expand unsound or dubious precedents. In 1971, the Supreme Court had ruled in Bivens v. Six Unknown Federal Narcotics Agents that the Constitution confers a claim for damages against a federal agent for allegedly unconstitutional conduct. Writing for a Second Circuit panel in Malesko v. Correctional Services Corp., Judge Sonia Sotomayor rules that a Bivens claim may also be made against a private corporation acting under color of federal law.

One year later, the Supreme Court will reverse the Second Circuit ruling by a 5-4 vote.

Law & the Courts

This Day in Liberal Judicial Activism—October 5

Judge Stephen Reinhardt

1995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.

Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures.

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

Accusers of Kavanaugh: Status Update

As the FBI conducts its investigation, here is a status update on allegations that have been leveled at Judge Kavanaugh. That they have not held up should be no surprise, given that they only surfaced at the eleventh hour against a nominee who had faced extensive background checks over 25 years with never a whisper of such misconduct:

Source Allegations Problems with the allegations
Dr. Christine Blasey Ford In 1982, Kavanaugh pushed her into a room with Mark Judge, groped her and attempted to remove her clothes, put his hand over her mouth. As detailed in my previous posts here and here, as well as the analysis of Senate Judiciary Committee counsel Rachel Mitchell, this account contains numerous holes and inconsistencies and is either not corroborated by or is contradicted by every alleged witness.
Deborah Ramirez During the 1983-1984 school year, someone exposed himself to her while she was inebriated, after which she saw Kavanaugh with “his hips coming forward, like when you pull up your pants.” Ramirez admits she was inebriated and that she did not see Kavanaugh expose himself, but inferred it. Significantly, as she called multiple former classmates about the incident, she admitted herself that she was not sure it was Kavanaugh. Ramirez became “certain” only after working with a partisan activist lawyer for six days.

 

Neither she nor the New York Times, which interviewed several dozen people in search of a witness with firsthand knowledge of the allegation, could find anyone to corroborate. Ramirez’s attorneys refused seven requests from the Senate Judiciary Committee for cooperation in the form of evidence or agreeing to an interview.

Julie Swetnick Kavanaugh systematically facilitated gang rapes by spiking punch and waited his turn in lines to participate in such rapes. This is a widely discredited source with a history of dishonest and abusive behavior. Among other things, she was accused of lying about her background to her employer and was sued for defamation for making false and retaliatory claims of sexually offensive conduct in a lawsuit that also alleged similar conduct by her. Her ex-boyfriend, who called her “not credible at all,” had filed a restraining order against her and asserted that she threatened to harm his family.

 

She provided no dates, times, locations, or evidence to support her claims. The few specific details she provided were already publicly available.

 

In an October 1 interview with NBC News, she walked back some of her allegations, admitting she never “specifically” saw Kavanaugh spike punch and later surmised that gang rapes were occurring at parties even though she “didn’t know what was occurring” at the time. The Wall Street Journal and other media outlets have contacted dozens of former classmates and colleagues without being able to find a single person to corroborate her allegations. She occupied a different social circle, is more than two years older than Kavanaugh, and it does not appear anyone interviewed in his social circle has heard of her. She submitted her statement under penalty of perjury, which makes her a good candidate for a perjury prosecution.

Jeffrey Catalan on behalf of an anonymous woman In August 1985, an acquaintance of the accuser was raped by Kavanaugh and a man named Mark on a boat in the harbor at Newport, Rhode Island. The accuser and another man “physically confronted” both men after learning of the incident. On September 24, Senator Sheldon Whitehouse simultaneously gave the accuser a reporter’s contact information and forwarded his allegations to the FBI, after which he forwarded them to the Senate Judiciary Committee. Two days later, the accuser “recanted because I have made a mistake and apologize for such mistake.” The Judiciary Committee made a criminal referral of this matter to the Justice Department for the false statements alleging misconduct by Kavanaugh.
Anonymous in Colorado In 1998, Kavanaugh shoved his girlfriend against a wall “very sexually and aggressively,” according to a woman claiming to be the mother of a friend of his girlfriend. Kavanaugh’s girlfriend at the time, Judge Dabney Friedrich, denied the allegation as “offensive and absurd.” Besides never shoving her against a wall, she asserted she has “never observed (nor [is she] aware of) Brett acting in a physically inappropriate or aggressive manner toward anyone.”

 

New Development Reveals More Inconsistencies in Ford Testimony

It has just been reported that a sworn statement provided to the Senate Judiciary Committee by someone claiming to be Ford’s ex-boyfriend during most of the 1990’s maintains that he witnessed Ford help a friend who was interviewing for jobs at the FBI and U.S. Attorney’s office “prepare for a potential polygraph exam. Dr. Ford explained in detail what to expect, how polygraphs worked and helped” her friend “become familiar and less nervous about the exam. Dr. Ford was able to help because of her background in psychology.”

If true, that would render false Ford’s answers—repeated three times—to questions from Rachel Mitchell during the hearing about whether she had had any discussions on how to take a polygraph:

MITCHELL: Have you ever had discussions with anyone, beside your attorneys, on how to take a polygraph?

FORD: Never.

MITCHELL: And I don’t just mean countermeasures, but I mean just any sort of tips, or anything like that.

FORD: No. . . .

MITCHELL: Had – have you ever given tips or advice to somebody who was looking to take a polygraph test?

FORD: Never.

The ex-boyfriend’s statement also asserted that while they dated, “Dr. Ford never brought up anything regarding her experience as a victim of sexual assault, harassment, or misconduct. Dr. Ford never mentioned Brett Kavanaugh.” He added that she “never indicated a fear of flying” or, to the best of his recollection, “of closed quarters, tight spaces, or places with only one exit.”

Additionally, he stated that after they broke up, she used a credit card they had once shared without authorization and initially lied about charging it approximately $600. She “later admitted to the use” of the card, he continued, “after I threatened to involve fraud prevention.”

UPDATE: In response to this development, the friend of Dr. Ford referenced above has issued the following statement: “I have NEVER had Christine Blasey Ford, or anybody else, prepare me, or provide any other type of assistance whatsoever in connection with any polygraph exam I have taken at anytime.”

Law & the Courts

This Day in Liberal Judicial Activism—October 3

Supreme Court Justice Anthony Kennedy (Joshua Roberts/Reuters)

2013“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

A sound observation, to be sure. But what’s remarkable is that the person uttering it is Justice Anthony Kennedy, who throughout his tenure on the Supreme Court has done as much as any justice to intrude willy-nilly on the democratic processes on the “most serious issues of the day.”

Law & the Courts

More Schumer Obstruction

Senate Minority Leader Chuck Schumer (Yuri Gripas/Reuters)

Usingenglish.com defines the idiomatic expression “little ol’ me” as “a way of referring to yourself that is meant to be modest or self-deprecatory, though often fake.” That’s how Senate minority leader Chuck Schumer (D., N.Y.) comes across when he feigns innocence about confirmation obstruction.

On October 2, for example, he denied that Democrats were trying to delay or obstruct the confirmation process for Supreme Court nominee Brett Kavanaugh. You can almost hear him shrug his shoulders and throw up his hands when he said that Democrats are powerless to do so since they are in the minority. Obstruct? Little ol’ powerless me?

That doesn’t sound like the Schumer who vowed back on July 9 to oppose the Kavanaugh nomination with “everything I have.” Or like Democrats who had already announced their opposition to Kavanaugh nonetheless demanding more time to study his record. Or like Democrats who demanded a separate hearing to consider Dr. Christine Ford’s sexual-assault allegation against Kavanaugh and, after they had that hearing, demanding an extended, open-ended FBI investigation.

And now, Schumer is demanding that the FBI brief the entire Senate “on the results of the investigation before a final floor vote.” But wait, you might say, that doesn’t sound unreasonable. It doesn’t until you find out what Schumer does not want you to know.

In September 2009, at the beginning of the Obama administration, the White House and Judiciary Committee — both controlled by Democrats — established rules for how to conduct FBI background checks on nominees. They formalized those rules in a document titled “Memorandum of Understanding between the Senate Judiciary Committee and the Counsel to the President Regarding FBI Background Investigation Reports on Nominees.” This memo is still operative today.

This MOU spelled out which nominees are covered and made clear that the FBI provides the results of its background investigations to the Judiciary Committee. In the case of Supreme Court nominations, any senator may receive a verbal briefing from a “designated staff member” who has the appropriate security clearance.

One more thing. During the first hearing, a certain senator (referred to here only as “Spartacus”) threatened to disclose documents that had been labeled “Committee Confidential.” He did so, he said, because this designation resulted from the committee chairman’s unilateral and arbitrary decision rather than by any rule or other source of authority. Spartacus did not make that disclosure when it was revealed that the committee had already made those documents public by removing the designation.

Well, this MOU reminds everyone that FBI background reports “constitute confidential business of the Senate Committee on the Judiciary and unauthorized disclosure of information in the reports is cause for the imposition of punishment under RULE XXIX (5) of the Standing Rules of the Senate.” That rule provides for expulsion from the Senate if the leaker is a senator.

In other words, the FBI does not brief senators regarding background investigations, period. Schumer certainly knows this because he served on the Judiciary Committee in 2009 when these rules were established. The demand for an FBI briefing that he knows won’t occur, therefore, looks a lot like obstruction.

Yes, little ol’ you.

Law & the Courts

‘Are Asian Americans the New Jews?’

That’s the title of a panel discussion that will be held at the Heritage Foundation on Thursday this week at noon. The reference is to the Harvard case that will go to trial in a couple of weeks, in which there is strong evidence that the school has set discriminatory quotas aimed at limiting the admission of Asian Americans, in a way eerily similar to its earlier anti-Jewish quotas. The panel will include John Yoo, Alan Gura, Alex Jiayu Zhong, and yours truly, and will be moderated by Mike Gonzalez and Hans von Spakovsky.

The public is invited, and you can RSVP and read more about the event here.

Law & the Courts

This Day in Liberal Judicial Activism—October 2

(Shutterstock)

1953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969.

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

1989—The Texas supreme court rules (in Edgewood Independent School District v. Kirby) that the state constitutional provision that requires the legislature to “establish and make suitable provision for the support and maintenance of an efficient system of free public schools” forbids the existing system of financing public education—which relies significantly on local district financing—and instead requires that the “funds available for education be distributed equitably and evenly.” The court’s gauzy standard will create (in the words of one analyst) a “quagmire of endless litigation.”

Reviewing the Inconsistencies in Ford’s Testimony

The takeaway from Thursday’s Senate Judiciary Committee hearing is the striking number of inconsistencies and gaps that emerged from Dr. Christine Blasey Ford’s testimony. Rachel Mitchell, the Arizona prosecutor hired by the Committee to question the witnesses, has submitted her analysis, which agrees with my previous post’s conclusion that the evidence against Judge Kavanaugh is insufficient to meet both the evidentiary standard that applies to criminal trials and the preponderance of the evidence standard that applies to civil trials.

None of this is to suggest that Dr. Ford maliciously fabricated a story of sexual assault that never happened. Much of her testimony was compelling, and she seems to have suffered a horrible attack. But the widely acknowledged imperfections of human memory are known to operate even for events that are much more recent than 36 years ago. Here the allegations just do not add up to a reliable case against the particular man she identified as her attacker.

Here in brief is a list of inconsistencies in Dr. Ford’s testimony:

When was the party? To quote from Mitchell’s memo:

  • In a July 6 text to the Washington Post, she said it happened in the “mid 1980s.”
  • In her July 30 letter to Senator Feinstein, she said it happened in the “early 80s.”
  • Her August 7 statement to the polygrapher said that it happened one “high school summer in early 80’s,” but she crossed out the word “early” for reasons she did not explain.
  • A September 16 Washington Post article reported that Dr. Ford said it happened in the “summer of 1982.”
  • Similarly, the September 16 article reported that notes from an individual therapy session in 2013 show her describing the assault as occurring in her “late teens.” But she told the Post and the Committee that she was 15 when the assault allegedly occurred. She has not turned over her therapy records for the Committee to review.
  • While it is common for victims to be uncertain about dates, Dr. Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.
  • She alleges that she struggled academically in college, but she has never made any similar claim about her last two years of high school.

Where was the party? How did she get there or home?

  • Was the party near the Columbia Country Club, as she told the Washington Post, or between Ford’s house and the country club (an over seven-mile distance that she testified was an approximately 20-minute drive)?
  • She told the Washington Post she doesn’t remember how she got to the party or how she got home.
  • Upon being shown maps at the hearing, she replied “Correct” to the question, “Would it be fair to say that somebody drove you somewhere, either to the party or home from the party?”
  • Her memory of the attack itself is vivid, but she cannot say what happened after she left the house or identify who effectively rescued her and drove her home.

How many people were at the party? 

  • Ford’s 2012 therapist’s notes (as reported by the Washington Post) said four boys were involved and did not name her attacker. Her initial report to the Post said that was the therapist’s error and that it should have been four boys at the party but only two in the room.
  • She testified that contrary to what she wrote in a July 6, 2018 text to the Washington Post, PJ Smyth was not a “bystander” and was not in the room during the alleged assault.
  • Her July 30 letter: “me and four others” were at the gathering.
  • Written statement for polygrapher: She initially wrote “4 people,” crossed out “people” and changed it to “4 boys and a couple of girls.”
  • She testified before the Committee that at least those people were there, but there could have been others as well.
  • All of the alleged corroborating witnesses she named—Smyth, Mark Judge, and Leland Keyser—denied knowledge of such a gathering in statements to the Committee submitted under penalty of felony (18 U.S.C. § 1001).

Additional issues with Ford’s July 30 letter:

  • She could not confirm under oath that the Feinstein letter was written on July 30.
  • Her letter stated that Kavanaugh pushed her into the bedroom.
  • At her hearing, she backtracked, testifying that “I was pushed from behind, so” she “can’t promise that Mark Judge didn’t assist with that.” That raises the question of how she could be sure Kavanaugh had pushed her at all, if it was from behind.
  • According to her July 30 letter, after the assault, Kavanaugh and Judge were talking to other attendees downstairs while she hid in the bathroom.
  • In her testimony, she said she could not hear their conversation.

Psychological impact:

  • Ford told the Washington Post the attack contributed to her symptoms of anxiety and PTSD. The term “contributed” suggests there were other causes.
  • In her testimony, when asked if anything else contributed to her anxiety and PTSD, she answered, other than “biological predispositions,” as follows: “Environmentally, not that I can think of. . . . Certainly, . . . nothing as striking” as the assault.
  • The first documentation of her memory of the incident was the therapist’s notes, but who has seen those notes? The Washington Post saw at most only excerpts of those notes, and Ford testified she can’t remember whether she provided them the actual notes or only her summary of them.
  • Full documentation of Ford’s treatment and potentially other medical conditions are clearly relevant to explaining how her memory might have been formed or changed. And there is a vast amount of scientific study about the frailty of memory and witness ID. Yet her attorneys refused to turn over any medical records to the Judiciary Committee, including any of her therapy notes.

Fear of flying: 

  • When Chairman Grassley became aware of her allegations on September 16, he instructed his staff to begin an immediate investigation. The next day, her attorney, Debra Katz, appeared on morning shows asking that the Committee hold a public hearing so that her client may testify. The Committee immediately honored that request later that day, scheduling a hearing for one week later.
  • Grassley was incredibly flexible about accommodating her testimony, stating on September 19: “I recognize that testifying publicly about sexual assault allegations may be difficult for Dr. Ford, so I have offered her the opportunity to testify in any of four possible venues: (1) a public hearing; (2) a private hearing; (3) a public staff interview; or (4) a private staff interview. I am even willing to have my staff travel to Dr. Ford in California—or anywhere else—to obtain her testimony.”
  • Nonetheless, Ford’s attorneys represented to the Committee that their client was afraid of flying, and the hearing was unnecessarily delayed.
  • Ford testified before the Committee “it wasn’t clear to me that” she could testify in California instead of having to fly to Washington.
  • She also testified that she flies for work and leisure and flew to Washington to testify.

Other difficulties with her testimony:

  • Ford does not remember the time, place, or how she arrived or got home, but she does remember that she had exactly one beer and was not on any sort of medication.
  • She testified that her longtime friend, Leland Keyser, did not follow up with her to ask why she suddenly disappeared.
  • Ford does not remember if she took the polygraph test in Maryland on the same day as her grandmother’s funeral or the next day. As Mitchell noted in her memo, “It would have been inappropriate to administer a polygraph to someone who was grieving.”
  • Ford’s testimony is inconsistent with Kavanaugh’s calendar, which has him out of town most weekends and records no social event matching her description. Senator Sheldon Whitehouse has posited a theory that maybe the July 1 entry, “Go to Timmy’s [Gaudette] for Skis w/ [Mark ]Judge, Tom [Kane], PJ [Smyth], Bernie [McCarthy], Squi [Chris Garrett]” refers to that event, but for numerous reasons, it clearly does not:
    • Neither Ford nor Keyser is mentioned in the calendar.
    • Ford never mentioned Gaudette, Kane, McCarthy, or Garrett in her account.
    • If Garrett, to whom she was closest, was present, it is odd that he would be the boy whose name she did not recall.
    • Before testifying, she never acknowledged more than one unnamed attendee, and her testimony that there could have been others present at the party came only after Kavanaugh’s calendar was released.
    • She testified the house was “in the Bethesda area,” and Gaudette’s house was in Rockville, at an address over 10 miles away from the Columbia Country Club.
    • Ford testified that the assault occurred “[e]arly in the evening” at “kind of a pre-gathering” and that Kavanaugh and Judge were “extremely inebriated, they had clearly been drinking prior.” But the July 1 entry followed another entry that day indicating a workout, and Kavanaugh testified workouts usually ran from about 6:00 to 8:00 p.m.

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Politics & Policy

Basta La Vista, Baby

Dear Reader (And especially Martha McSally’s dog), As I often note, I increasingly tend to see the political scene as a scripted reality show in which the writers don’t flesh out the dialogue so much as move characters into weird, wacky, confrontational, or embarrassing positions. It’s a lot like The ... Read More
World

The Brexit Crisis

After what seem like years of a phony war, British and European Union negotiators finally agreed on the terms of Britain’s departure from the EU earlier this week, and Theresa May announced it in the House of Commons. The deal covers more than 500 pages of legal and bureaucratic prose, and few but the ... Read More
U.S.

Friends of Elmer

Do you know what scares an American outdoorsman more than a grizzly bear? Twitter. In the late summer and early autumn, the hunting world had its eyes on the courts: The Trump administration had issued new guidance that would permit the hunting of brown bears (popularly known as grizzly bears), including in ... Read More