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The Multiple Levels of the Ford-Kavanaugh Controversy

Obviously, this is one of those issues that just sucks the oxygen from all other political issues at the time. While the country is strongly divided, it is worthwhile analyzing the matter to get clearer on what is going on. One aspect of the controversy is that there are multiple levels at work here. To me, there are at least three separate issues that are mixed together.

The Underlying Factual Issue: What Kavanaugh Did—If Anything—to Ford 36 Years Ago.

This tends to be the main focus of some but not all discussion. There are key matters of contention here. On the one hand, Ford has not provided much in the way of details and those details she has offered, such as who was at the party, have not been corroborated. Most importantly, Ford’s close friend Leland Keyser does not remember the party and says she never met Kavanaugh.

On the other hand, it is often said that Kavanaugh has more incentive to lie than Ford. His incentive is to get a Supreme Court seat. Her incentive is less clear, but presumably it would be to stop a conservative from being appointed to the Court. Another possibility, of course, is that Ford may have mistakenly identified Kavanaugh. Finally, many people say that Ford came across as quite credible during her testimony.

The Political Aspects of the Controversy

Apart from whether Ford’s allegations are true, the politics of the situation are inescapable. Republicans argue that they were about to confirm Kavanaugh, and at the last minute the Ford allegations were leaked to the media. If Feinstein thought this was a serious allegation, which it obviously is, she should have made it public in July. Waiting until the last minute suggested an attempt to delay the process until after the Senate elections. Ford’s—or Ford’s lawyers’—apparently false claims about her unwillingness to fly are more of the same.

Democrats respond that Feinstein was merely respecting Ford’s request for privacy. But when the letter leaked, Feinstein did not even attempt to find out who had leaked it.

Democrats tell a different story. Mixing in the first issue, they argue that the Republicans just want to confirm Kavanaugh ahead of the Senate elections, irrespective of whether Kavanaugh actually assaulted Ford.

The Appropriate Procedures for Evaluating Such Claims

A third issue is how allegations of this sort should be handled. One can argue about this as well. One aspect involves the burden of proof: should it be a preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt? Another aspect is whether such an old charge should even be considered. If this were a court of law, a statute of limitations would prevent the charge from even being considered more than a couple of years after it occurred. The reasons for such statutes are obvious from this context—the difficulty of proof and the unreliability of memories after so many years.

Implications

In the debates about these matters, people focus on one level or another, or move from one level to another without acknowledging that they are doing so. But these issues are distinct.

For example, imagine that a Republican believed that the issue should never have been heard (appropriate procedures: based on an imagined statute of limitations argument); that the Democrats behaved in a hypocritical and politically oriented matter, exploiting a serious charge (the political aspects of the controversy); but that Ford’s allegation is more likely than not to have been true, despite the difficulties of proof at this stage (the underlying factual issue). How should that Republican evaluate the matter and which way should that person want the Senate to vote? It is hard to say.

One can play out similar problems by combining different positions on each of these issues. Ultimately, the multiple levels of the controversy and the failure to draw distinctions between them clearly feed into the tribal aspects of the controversy. God help us.

Reader Discussion

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on October 01, 2018 at 14:09:33 pm

"Democrats tell a different story."
Don't they ALWAYS?

Schumer's strategy, and yes, it IS Schumer, the corrupt pawn of the Laborers Union from upstate NY, and not the dimwitted octogenarian Feinstein, is to a) provide cover to all the Dems in Reddish / Purple states and to the sissy GOP's by leveling a bevy of allegations against Kavanaugh such that the Politico may claim that there was simply too much smoke. Indeed, but it has been blown up your rectum, Dear politicos, 2) to so discredit kavanaugh that any vote by him (and Thomas, another *known* sexual pervert per Dem Party liturgy) to overturn Roe v. Wade will be viewed as illegitimate and thus is to be denied, defied and denigrated AND will allow the Dem Party to continue to posture as the Defender of Women and to carry on the decades long culture war and thier strategy of "divide {into races, sexes, genders, etc] and conquer.

Thus we are assured of another several decades of bile, invective, slander and the ever greater diminution of speech and conscience rights.

The Democrat Party ought to be sent into exile.

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gabe
on October 01, 2018 at 14:15:30 pm

The only important thing about the Ford-Kavanaugh debacle is that it shows that the Republican controlled Senate has no more self-respect, and is no more principled, than are the president and trustees of Evergreen College and Yale University.

Given Ford's silence for 30 years and more and the complete lack of any corroborating memory or evidence, Ford has not accused Kavanaugh of anything, she has slandered him. That the Senate and White House would call this slander believable or credible in any sense of the words and then act to prolong this fiasco shows only that we are on the threshold of a political state of nature because our rulers have abdicated their responsibility to make any controversial decisions on our collective behalf.

On the up side, the loathsome Senate and Supreme Court have been debased; and that's good.

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EK
on October 01, 2018 at 14:36:41 pm

but that Ford’s allegation is more likely than not to have been true, despite the difficulties of proof at this stage (the underlying factual issue). How should that Republican evaluate the matter and which way should that person want the Senate to vote? It is hard to say.

On what basis would said hypothetical Republican believe this? Credo quia absurdum est? Because that is what we are talking about. We are talking about credo, "I believe," faith. The fact cannot be proved but truth is not fact. Truth is more belief than fact.

"Credible" is credoin the passive voice. One must act in accordance with one's faith. Precious little evidence aside from a handful of testimonials exists to prove that Jesus performed miracles yet the faithful believe. This is where Parker and Stone were wrong; it's not only a Mormon who "just believes."

The Left moved the argument over Kavanaugh from fact to faith almost immediately, because even they saw the evanescent nature of the "facts". Belief is an act of will, a matter for decision, and that is precisely why it is the touchstone of the Left's politics, not just on Kavanaugh but on everything (climate change anyone?). People cannot impose facts on others but they can impose beliefs.

So if anyone, a Republican or otherwise, "believes" Ford's account, then he has but two choices: vote against Kavanaugh, or vote for Kavanaugh on the basis that what Kavanaugh did was just foolish adolescent horseplay and no big deal. The latter being an impossible public basis, that leaves only the former course.

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QET
on October 01, 2018 at 14:57:45 pm

The issue is pretty simple. If Dr. Ford's accusations are truthful, judge Kavanaugh's judicial career ought to come to an end. My cases were presided by the narcotics-related felon Carol Kuhnke [1], and the results were disastrous. A judge who is a criminal is quite prone to engage in systematic and blatant obstruction of justice, as felon Kuhnke has done in my cases and those of others. Allowing felons to remain on the bench clearly reflects a fundamental defect of the US judicial system.

If Dr. Ford's accusations are false, judge Kavanaugh should end up in the SCOTUS but only in the capacity of Petitioner for a Writ of Certiorari, the last recourse for a defamed plaintiff who has endured the corruption of all courts below. Mr. Kavanaugh and many other judges need to experience in their personal lives the rough face of judicial immunity, of privileges which de facto are crime-concealment doctrines, of attorneys dragging the proceedings while they babble their being "in good standing", of the complicity between judges and wrongdoers that help those judges' career, and of other "nice" features of the legal "profession".

Regardless of the accuracy of Dr. Ford's accusations, judge Kavanaugh's conduct at the Senate hearing(s) reflects his repeated deflection of concise questions, with the resulting disruptions of proceedings. That avoidance of legal questions is a method by which corrupt judges force unlawful outcomes in the cases they preside or "review". If a witness or litigant behaved in a courtroom as Mr. Kavanaugh did at the Senate on September 27, that person would have been held in contempt of court.

As you can see, there is neither need to resort, nor use in resorting, to partisan allegations. For instance, felon Carol Kuhnke likes to pose at events of Democrats, yet she needs to be convicted and removed from judicial office insofar as a felon. Period. And although I have not researched the political affiliation of the other judges involved in my cases, I highly doubt that all of them are Democrats. I even recently denounced judge Joan Larsen [2], one of President Trump's allegedly potential nominees, for her perverse protection of the perverse colleague [judge Lisa Gorcyca] who extorted, terrified, and jailed three innocent kids under pretext that they refused to have lunch with their father.

Judicial corruption and judicial perversity are not partisan, and neither is the opposition thereto.

[1] http://www.oneclubofjusticides.com/2018/04/felon-carol-kuhnke-seeks-reelection-as.html
[2] http://www.oneclubofjusticides.com/2018/07/larsen-in-scotus-big-no-no.html

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Iñaki Viggers
on October 01, 2018 at 16:55:27 pm

QET & EK have it just right.

Belief may lead to all manner of misbehavior.

Here now some such behavior from a Professor at Georgetown University:

https://www.foxnews.com/us/georgetown-professor-says-white-gop-senators-deserve-miserable-deaths-after-kavanaugh-hearing

And these degreed putrescencs are *educating* our children and grandchildren!

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gabe
on October 01, 2018 at 17:30:30 pm

Ford’s allegations raise difficult questions, both factual and procedural. But for me, they’re now beside the point.

I have sympathy for Kavanagh’s predicament. Nevertheless, I think he has displayed some qualities that would seem to put him outside the bounds of judgeship, let alone membership on the Supreme Court. First, both in his prior confirmation, and in this one, he has said things that I have difficulty believing—though I guess it’s’ possible that people of good faith might have different views on that. But second, and more importantly, his lashing out at some vast left-wing conspiracy gives more than half of all the nation’s voters cause to doubt that he would be willing to hear their cause in an unbiased manner.

So even if every allegation against Ford, the Democratic Senators, the Democratic donors, etc., were accurate—even if we stipulate that the entire circus was orchestrated to provoke Kavanagh into displaying a lack of judicial temperament—well, the most charitable conclusion we could draw is that he took the bait, fell into the trap, and made a great display of his lack of temperament and his political bias. The Democrats may have behaved wretchedly, and perhaps voters should take that into account on election day. But that does not excuse Kavanagh’s behavior. The vast majority of the public, including the vast majority of liberals and progressives, had nothing to do with the Democrats’ behavior—and they are entitled to an unbiased court the same as anyone else. Kavenaugh gave the whole nation cause to doubt that he could deliver that.

Unless Kavanagh is planning to recuse himself every time a politically-tinted issue comes before the Court, he really shouldn’t be on the court. It’s no longer an issue of what the FBI discovered about how he behaved in the 1980s; it’s now an issue of how he behaved on Thursday. He didn't behave like a judge.

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nobody.really
on October 01, 2018 at 17:41:56 pm

What if there *is* a vast left-wing conspiracy out to get him?

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Michael Towns
on October 01, 2018 at 17:57:17 pm

Michael,

That would not matter at this point. Kavanaugh showcased at the Senate hearing his propensity to deflect concise, uncomfortable questions, with millions of people watching him. That suggests that he would likely do so in the SCOTUS for the sake of forcing impermissible holdings.

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Iñaki Viggers
on October 01, 2018 at 20:37:02 pm

Lack of judicial temperament? This is disingenuous in the extreme.

For one thing, you overlook history. And by history, I mean 3 weeks ago, and 3 months ago. Three months ago, when Trump announced his short list of 3 candidates, the Left sprang into action and had pre-printed signs denouncing all 3. Each of them was was to be #resisted. The #resisters knew nothing of any of the 3 candidates except that they were not judges who ignored the Constitution in favor of social justice. They knew Kavanaugh had to be #resisted "by any means necessary" even if they could not tell you why.

Three weeks ago, when the Kavanaugh hearings began, we were treated to Spartacus, the Handmaid's Tale, the Democratic members ushering in pre-programmed protesters to shout and perform guerrilla theater and generally make a mockery of the conformation hearings. Kavanaugh endured all those slanders with equanimity, a model of the judicial temperament.

This Ford theater is not occurring in a vacuum. It has a context which must bear heavily on any evaluation of the episode.

Every Democrat on the committee had publicly already vowed to vote against Kavanaugh but that was insufficient to prevent his confirmation even after Spartacus and the Handmaids. So Feinstein played her trump card. An alleged sexual assault 36 years ago cried out for justice so much that Feinstein would not have even allowed Ford her turn in the limelight had the previous proceedings succeeded in derailing Kavanaugh's nomination. That's how much the Democrats think of Ford's trauma. Clearly a woman's sexual assault is not so important that it demands justice absolutely, but only when it can be of some immediate political use. They only need a couple of spineless GOP senators to hesitate and they had to find a way to bring the pressure of their mobs to bear on those weaklings. That is all Ford and her "trauma" is to them--a means to turn 2 or 3 weak GOP senators. But Ford will get a book deal and some paid appearances on The View out of it, so she can't complain she wasn't paid for her trouble.

Ford was used and badly so. Already she is receding into the background as people like you gravely pronounce on Kavanaugh's temperament and also maybe his teenage drinking. You could tell how important Ford's story was to the Left by the way that all of the outraged women complained about themselves, about their own alleged sexual assaults, making it all about "me me me." No doubt the "investigation" will turn up that while a high school football player, Kavanaugh once drew a penalty for unsportsmanlike conduct, further convincing you that he doesn't have the right stuff for the Bench. Kavanaugh will be the first person denied an appointment to the Court over his behavior in high school.

The Democrats set a trap which you fell right into. A perfect heads-I-win-tails-you-lose. Accused of being some sort of monster, with his wife and children having to endure the public assassination of their father's character, after every other woman who suggested she too had been a victim of Kavanaugh either publicly recanted or was proved a liar, notwithstanding the reams of testimonials to his good character from other women going back to his high school days ; notwithstanding Yale Prof. Amy Chua from her deathbed refuting the charge that she and her husband somehow groomed female law clerks for Kavanaugh--Kavanaugh when given the chance to speak did no less than you would have done in defending himself. Had he sat there Sphinx-like as you now suggest would have been more in keeping with a correct judicial temperament; had he calmly absorbed all of those vile attacks on his personal character and only meekly re-asserted his innocence, no doubt you would now be here explaining that a man who reacted so mildly to such attacks obviously was either guilty or was too dense to understand just how serious the matter was, either way a disqualification. So Kavanaugh was doomed no matter what he did. Given that, he determined not to just passively accept those attacks with equanimity, nor would you, nor would I. Do you have children? Would you not get angry were someone to disparage you so horribly to them? If I were going to lose the appointment owing to a couple of mob-whipped GOP senators over baseless charges, I would make sure that the nation knew exactly what I thought of the scurrilous charges made against me and of the character of those who so cynically made them. I would do that for my children more than for myself.

Maybe now you understand just what "by any means necessary" means.

And it is you who took the bait. The Democrats are counting on people like you to swallow it whole. Although I have a feeling that you were opposed to Kavanaugh from the beginning and that this latest act in the drama had no effect on your opinion but gives your conscience an escape hatch because you are obviously aware enough that a single uncorroborated allegation--vehemently denied and contradicted by the testimonials of many other people from those years all the way up to today--of teenage sexual misbehavior almost 4 decades old is a completely inadequate basis on which to refuse confirmation of a judge whose qualifications are otherwise unimpeachable.

Disgraceful.

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QET
on October 01, 2018 at 21:29:50 pm

What if there *is* a vast left-wing conspiracy out to get him?

Oh, I expect there is. I don't know how vast, but I understand that there's a PAC for attacking him (and a bigger PAC for promoting him).

But that's not the issue. The issue is how HE behaves.

If a black defendant started screaming at Kavenaugh, "You white-assed honkeys just have it out for us brothers! Well, when the revolution comes, you white folk are gonna get yours, and get it good and hard!", Kavenaugh would have many possible responses. He might gavel over his tirade and demand order. He might order the bailiff to remove the defendant from the courtroom. He might sit impassively and, when the defendant was finished, simply ask counsel to proceed. Or he might cry out, "OH YEAH? That's just the kind of thing I expect from niggers! Have no fear, white folk know how to take care of darkies like you!"

Any of those responses might be justified at a visceral level. But one of those responses would not only get the charges dismissed, it would signal to all black defendants that the judge is biased against them. The defendant's speech, no matter how reprehensible, is not the issue; the judge's is.

Now, we might imagine circumstances under which it might become relevant for a nominee to acknowledge and discuss the fact that political forces have lined up against (and in favor of) his nomination. But if he did so, I'd expect him to cite evidence in support of his claims (for example, ads that he had heard or seen discussing the matter), and I'd expect him to address it matter-of-factly. Because truly, these political attacks (and supports) are not personal; they're ends-oriented.

The only people speaking personally (potentially) are the people who claimed that Kavenaugh attacked them.

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nobody.really
on October 01, 2018 at 21:35:07 pm

Hmmmmm, yes there are at minimum multiple levels of the Ford-Kavanaugh controversy. Indeed, "if there's one thing every conservative Republican knows, it's that Brett Kavanaugh is a devoted husband, loving father, and brilliant jurist who's always treated women with respect and who is now the innocent victim of a smear campaign orchestrated by the left and its amen chorus in the liberal media." However, the assumed aforementioned exists on the basis of partial evidence and reasoning ostensibly tied to an motivated ideological commitment, if honestly examined

Yet as nobody.really notes and Mike Rappaport implies, the Ford-Kavanaugh dilemma warrants more humility and tentativeness than its observers and commentators have generally brought to bear. That is, if truth more than scorched-earth partisanship victory is an objective then distinctions beckon - a United States Life-Time appointment to the Supreme Court warrants at least that!

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Anthony
on October 01, 2018 at 22:01:24 pm

OH, NOBODY
You are full of it as normal.
Cleberly debeloped line of arguemtn that allows you to psoture as the hypothetical reasonable man.

Well, how about this.

What you are *expecting* (actually hoping for) is that a man who has shit thrown on his face repeatedly will refrain from objecting AND if he does object will be deemed to have an inappropriate temperament.
I predicted this line of *assault* some week ago. Nice to see that you have once again proven me right.

I am sorry nobody BUT YOU HAVE FINALLY AND FULLY REVEALED YOURSELF AS A DEMOCRAT PARTY BULLSHIT ARTIST - albeit a *clever* writer, certainly more adept at the art of obfuscation, mendacity and spurious guidance than the average SHITHEAD from WAPO, NYT, LA TIMES, etc.

The truly sad thing, and one that no doubt brings glee to your posturing, self righteous and *reasonable* countenance is that the bulk of the populace believes your lies, half-truths and misdirection.

I am sorry but you and your ilk have absolutely "no sense of shame" and no sense of honor.
If you do not like this "intemperance" -too bad. One grows weary of BULLSHIT, however well postured as believable or "credible such as the "eidetic" Ms Ford, who cannot recall the FUCKING YEAR, place, or number of people alleged to have committed this offense.

I take back each and every offer of good red wine to you. instead, i leave you only with the lying, whining Democrat Party liturgy as a source of inebriation.

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gabe
on October 01, 2018 at 22:30:41 pm

Had he sat there Sphinx-like as you now suggest would have been more in keeping with a correct judicial temperament; had he calmly absorbed all of those vile attacks on his personal character and only meekly re-asserted his innocence, no doubt you would now be here explaining that a man who reacted so mildly to such attacks obviously was either guilty or was too dense to understand just how serious the matter was, either way a disqualification.

Right—just as I condemned Hillary Clinton after her 11-hour-long patient response to Republican allegations that she had contributed to the murder of four State Department staffers in Bengasi. Oh, wait—I did no such thing.

Go watch Clinton’s 11-hour hearing, and then come back and tell us all how it would be simply impossible for any mere mortal to refrain from shouting, crying, and exhibiting disrespect for members of the Legislative Branch.

So Kavanaugh was doomed no matter what he did.

Not from my perspective. I’d think that he could simply ride this out with simple denials plus a Republican majority. Yes, Democrats would make hay of the sexual assault issue—but they’re going to anyway.

But I grant you, the politics are tough. All the same, I’d like to think that a federal judge would retain the propriety and evenhandedness even if it cost him the confirmation; at least then he could return to the DC Circuit without having announced to the world that he harbors an undeniable partisan grudge. Now, confirmation or not, he’s damaged goods. The only question is whether he spreads the damage to the High Court.

Given that, he determined not to just passively accept those attacks with equanimity, nor would you, nor would I.

Somehow Hillary Clinton chose the equanimity path—for 11 hours. Imagine if, instead, she had shouted and cried and mouthed off to the Senators and decried the partisan nature of the hearing. Would that have served her better?

I think maintaining equanimity was the best choice under those circumstances—and under these circumstances. But I acknowledge that plenty of people have different sensibilities than I do. For example, I find Trump’s demeanor loathsome—but obviously many people like it. Likewise, I now hear many people praising Kavenaugh’s all-out partisan response. I suspect they’re the same people who like Trump—and care little about the neutral role of the judiciary.

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nobody.really
on October 01, 2018 at 22:51:01 pm

Nice to see that you have once again proven me right.

Happy to oblige.

I take back each and every offer of good red wine to you.

Oh, fine, hoard the Northstar Premier merlot to yourself, and leave me with the Wild Goose pinot gris? Well, if I must....

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nobody.really
on October 02, 2018 at 08:42:27 am

Not even close to the same situation. HRC was criticized/attacked for something done (or not done) within her official capacity as a high-ranking Executive department officer, something that was within the scope of her public duty. More akin to "Bush lied, people died" and otherwise normal politics (e.g., accusing Republicans who want to repeal the ACA as murderers). No one claimed HRC personally pulled the trigger or that she somehow personally arrranged the death of the ambassador. Finally, HRC immediately blamed the Benghazi attack on a video some poor guy had made and then had him arrested. It was that pusillanimity that prompted the severity of the criticism against her.

And of course, now comes the entirely predictable further evolution of the attack strategy. http://thefederalist.com/2018/09/30/media-sink-to-new-lows-in-their-anti-kavanaugh-smear-campaign/

But I suppose that if a candidate were to grimace and display umbrage and indignation and raise his voice in refutation of such an imputation, that, too, would be "unJudicial."

Your theory that judicial impartiality requires Stoic indifference to such character assassination is, to say the least, a novel one. It is also not, per Kant, a maxim that you would make a universal law, because without knowing you I am certain that you yourself would not abide by such a maxim.

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QET
on October 02, 2018 at 09:38:09 am

It figures you would be a WHITE WINE drinker.

Recall that some great man (or woman, who knows) once said:

"That all wine would be RED if only it could."

But seriously. nobody, you do not really mean to equate Benghazi (with multiple deaths and KNOWN lies, i.e. the video and the resultant imprisonment of an innocent man) with the Ford fiasco, or DO YOU?

Again, you offer a false equivalency to justify the current slandering of a political opponent.
However well phrased, such an argument is shameful.

BTW: The Northstar Merlot IS expensive and failry good but does need some cellaring, in case you want to give up on Hillary and try red wine - Ha!

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gabe
on October 02, 2018 at 10:12:55 am

Your theory that judicial impartiality requires Stoic indifference to such character assassination is, to say the least, a novel one. It is also not, per Kant, a maxim that you would make a universal law, because without knowing you I am certain that you yourself would not abide by such a maxim.

Again, the issue isn't simply a lack of judicial temperament (although that's bad enough). The issue is that, having lost his composure, he proceeded to reveal his deep, tribalist animosity toward Democrats. So even if we conceded that he is otherwise blameless, lack of bias is a bona fide occupational qualification. And yes, I would hold myself to the same standard if I were sitting being nominated to the court.

As a slight aside, Kavenaugh seemed to allege that his treatment before the Senate Judiciary Committee had been driven by, among other things, a desire for revenge arising from his participation in Bill Clinton's impeachment proceedings 20 years ago. Quick show of hands: Has ANYONE seen evidence supporting that claim? Does ANYONE believe that?

I don't mean to suggest that Democrats aren't being opportunist in seeking to investigate an allegation of sexual assault by a Republican nominee. Quite the opposite: Democrats would have done so regardless of the nominee's involvement in the Clinton impeachment. I find it beyond credit that anyone would think otherwise--unless that person had a persecution complex. And Kavenaugh apparently does.

I wish the man well in his future endeavors. But those endeavors should not be as a judge on the Supreme Court. Or any court.

I have no special knowledge about the allegations of sexual assault.

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nobody.really
on October 02, 2018 at 10:20:59 am

It figures you would be a WHITE WINE drinker.

ACK! My latent bias for white has been revealed. Now I'll never get on the Supreme Court!

And the last time we discussed cellaring, it was because you alleged I had three old ladies locked in the basement. I really can't recall how we got onto that line of discussion. But they say hi.

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nobody.really
on October 02, 2018 at 11:05:31 am

I have sympathy for Kavanagh’s predicament. Nevertheless, I think he has displayed some qualities that would seem to put him outside the bounds of judgeship, let alone membership on the Supreme Court. First, both in his prior confirmation, and in this one, he has said things that I have difficulty believing....

Uh oh--more witnesses against Kavenaugh come forward.

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nobody.really
on October 02, 2018 at 11:58:47 am

Any judge not outraged by blatant, politically motivated injustice that flouts all legal due process would be suspect in my book. Kavanaugh was testifying as one accused of serious crime with all the flimsiness of evidence, and high-handedness of timing as noted by his supporters. In this "case" he has NOT been sitting as the judge, so "judicial demeanor" is not even appropriate, as long as he stays within bounds of civility, which do not preclude righteous indignation and recognition of the perpetrators in defending one's reputation.

What I think could be a positive outcome of this mess, as I suggested in a comment on John McGinnis' article, "How Our Confirmation Wars Resemble the English Civil War" ( https://www.lawliberty.org/2018/10/02/how-our-confirmation-wars-resemble-the-english-civil-war/ ),
would be to see if this impasse could be turned into a Grand Compromise to finally impose term limits on federal judges at all levels, but particularly for the Supreme Court. But the Democrats would have to immediately fully support such a compromise, as well as the Republicans, once it is agreed.

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R O
on October 02, 2018 at 12:06:55 pm

Related topic: Wouldn't John Riggle be a better person to play Kavenaugh than Matt Damon? Maybe Damon has better hair--but SNL folks have wigs, right?

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nobody.really
on October 02, 2018 at 13:24:31 pm

R O,

Kavanaugh's tantrum despite knowing he was being watched by millions of people on September 27 shows how blind and lacking of self-control his power (regardless of his beers) has rendered him. As I stated in my comment above, if a litigant in court adopted Kavanaugh's manners at the Senate, that litigant would be held in contempt of court.

Kavanaugh's improper conduct where he is not acting as "judge" suggests that his demeanor, acts, and decisions are even worse where he is vested with the tremendous powers of the court.

Kavanaugh's conduct at the Senate hearing reminded me of his [somewhat] look-alike Timothy Connors, a despotic, volatile, impatient, and self-repeating judge sitting in the Washtenaw County Trial Court, in Michigan; interrupting litigants to the extreme of preventing them from articulating their arguments for the record, always quick to yell at litigants as soon as his incompetence decisions are questioned.

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Iñaki Viggers
on October 02, 2018 at 13:26:29 pm

(obvious) errata:
wrote "incompetence decisions"
should read "incompetent decisions"

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Iñaki Viggers
on October 02, 2018 at 13:33:26 pm

I think it was the case that Kavanaugh's tirade was deliberate and calculated. It was hardly a question of the man losing control of himself. He had to decide (and he had time in which to mull the options) what sort of posture to adopt in response, and he calculated that a tone of defiance and outrage would serve him better than a posture of meek submissiveness. Only time will tell if he made the correct choice.

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QET
on October 02, 2018 at 13:36:59 pm

As I replied to Inaki Viggers below, Kavanaugh did not, in all probability (who can read a man's mind?), "lose his composure." He made a calculated choice, in advance, to appear defiant and outraged rather than meek and submissive, thinking the former would sere him better under the circumstances. Time will tell.

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QET
on October 02, 2018 at 14:23:29 pm

You know, I've been pondering that same possibility.

After all, Kavenaugh (and all the Senators) seemed to deport himself well in the morning. Then came the Ford's testimony, where she said--well, pretty much what everyone expected her to say, right? So if the CONTENT of her message were enough to provoke Kavenaugh and the Republican Senators to lose their composure, they should have been raving in the morning. Instead, they began raving only in the afternoon. Why? This suggests that the triggering event was not the substance of Ford's testimony, but its persuasiveness--it's political power. And that suggests that the behavior of Kavenaugh et al.'s was more calculated than it appeared.

This would indicate that Kavenaugh did not lack for self-control--but it amplifies the allegation that he lacks judicial temperament. Specifically, it implies that he was confronted with the possibility that he might not be able to become a Supreme Court justice unless he played the tribalism card--and he deliberately chose to sacrifice judicial neutrality in service of his (and the Republican Senators') ambitions.

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nobody.really
on October 02, 2018 at 14:27:16 pm

QET,

You might be right. In that case, we have to admit that Kavanaugh deliberately ridiculed himself with his cheesy attempt of theater performance. That includes his (fake?) tears; his sketch for opening statement which "his staff did not read beforehand"; his facial holograms between reading his notes and then frowning at Senators; and so forth. But people do not need an actor-wannabe in the judiciary.

People need for judge someone capable of responding to questions presented to him, not one who deflects issues by repeating himself over and over again with self-serving notes he drafted beforehand. The latter spells unfitness for judicial office.

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Iñaki Viggers
on October 02, 2018 at 15:05:44 pm

Tribalism? You mean like "wise Latina" tribalism? Or what, exactly? No matter, I have no illusion that anything I or anyone else can say will interrupt for one moment the mental circle you so obviously enjoy running around in.

And your inferences are suspect, to say the least. Kavanaugh is waging his fight against appearance, not reality. Ford's testimony was persuasive in the same way a preacher's testimony is persuasive to his choir.

As an aside, I regret the departure of Pukka Luftmensch from these shores. I can only imagine the grandeur of the jeremiad he would pen in this matter.

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QET
on October 02, 2018 at 15:53:56 pm

Off-topic:

I regret the departure of Pukka Luftmensch from these shores.

Wait ... what? Did he leave without even a parting "fuck off"? Or am I simply repressing the memory?

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nobody. really
on October 02, 2018 at 16:00:47 pm

My understanding is that some weeks back he penned a mighty (and lengthy) comment that took him some hours, he said, and when he hit "Post Comment" all he got was a message saying the comment exceeded the allowed length, but the comment itself vanished into the ether with no way for him to retrieve his work. That was the last of many L&L straws for him, apparently, and he announced his departure and then made good on it.

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QET
on October 02, 2018 at 17:38:21 pm

Wow. I've written some pretty long things here but haven't yet bumped my head against a size limit. Sure, I've had stuff held in moderation for a while--so long that I'd re-submit it, and then the moderators would post BOTH copies and I'd look a bit obsessive. Or more obsessive than usual, anyway.

Occasionally folks ask why I walked away from posting at First Things. I explain that I was banned. But this taught me not to make assumptions about why people stop posting.

Well, I'm sorry to hear about Luftmensch. But I don't begrudge anyone taking a break. Perhaps Luftmensch will grace us with his(?) presence again someday.

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nobody.really
on October 02, 2018 at 19:22:00 pm

I am glad to hear that your little Lady friends are fine and prospering.!

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gabe
on October 02, 2018 at 19:32:38 pm

Uh-oh - more of Ms Ford's lie come to light.

It appears that along with her alleged fear of flying, which did not prevent her from flying to hawaii for sufring, and all manner of other vacation spots, it appears that her ALLEGED and overwhelming fear of being trapped which caused her to install a SECOND DOOR on her house as an escape route TURNS OUT to be a second door used to ACCOMODATE her marriage counseling clients, while also being used as a part time rental to students, Google interns and others.
SO TELL ME: HOW IS IT THAT ONE WHO IS ALLEGEDLY "LIVING IN FEAR" FOR HER LIFE AND OF BEING TRAPPED WOULD ALLOW NUMEROUS OTHERS TO NOT ONLY ENTER HER HOME BUT ALSO LIVE THERE.

It is time that this lying fakir be challenged and prosecuted.

HOW MANY MORE LIES / EVASIONS / EXCUSES must we be forced to accept.

And yes, that big bad Kavanaugh once threw ice cubes at a friend. Apologies to Seinfelds "soup nazi" but the Sex Nazi's of today are shouting in unison "No Supreme court for you" you dastardly ice cube thrower.

My God, " is there not a man of honor within all of Washington DC?
Is there not anyone who will confront those who would perpetrate such an outrage?

Sadly, it appears as if there is not? And we will be "entertained" for a few more weeks by the mendacious minstrels of modern morality whilst the supine Senators of the Republic seek further cover.

Nobody, where are you. An excellent bottle of Petite Verdot awaits us for our mutual lamentations.

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gabe
on October 02, 2018 at 20:27:59 pm

That makes me wonder if it will come down to who put on a better performance. That is what I keep thinking as all the inconsistencies and lapses in Ford's story are pointed out in various conservatives' writings on this issue.

Yet she is quite "convincing", even if there is little objective evidence or testimony from others to support her allegations. I have viewed many dramatic plays, movies, and TV shows with equally convincing performances by good actors/actresses, that are totally fictitious. How is this different, aside from Ford not being known as a career actress? How can we be sure this is not simply a very well conceived and performed "alternate personal reality" drama by someone who missed a thespian calling motivated by the "#Resistance"? Similar professional stage performances have proliferated in this vein since Trump was inaugurated, and this will certainly spawn more.

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R O
on October 03, 2018 at 06:17:46 am

R O,

I would direct you to the paragraph starting with "If Dr. Ford's accusations are false [...]" in my first comment (https://www.lawliberty.org/2018/10/01/the-multiple-levels-of-the-ford-kavanaugh-controversy/#comment-1722886).

As a victim of defamation, I do not wish innocent people to endure something like that. But I think differently when it comes to judges, for they leave defamation unpunished no matter how clearly a plaintiff has proved his case and supported his arguments with case law released even by the SCOTUS. My criticism applies to the narcotics felon who presided my cases in trial court (see police report and other records in the link I posted in my first comment) all the way up to the crooks sitting in the SCOTUS.

Seeing Kavanaugh's tears and lack of dignity at the Senate, I cannot imagine how much he would cry when his Petition for Writ of Certiorari in the SCOTUS is followed by a "PETITION DENIED" decision. His love of the legal "profession" will have ended well before he files anything there.

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Iñaki Viggers
on October 03, 2018 at 18:09:46 pm

In reading Professor Rappaport's innocuous if uninformative commentary (tell us something that isn't obvious) and the flurry of heated replies thereto (to be expected, given the topic) I note that two loyal L&L commenters, QET and nobody.really, noted my absence, QET going so far (thank you) as to suggest that on the Kavenaugh matter I might have provided a jeremiad, nobody.really lamenting that I had departed L&L without so much as a "fuck you" farewell to him and both gentlemen speculating as to the motivation for my departure.

So, I return momentarily and address those matters by paraphrasing Mencken, " Say what you will against me when I am gone, but don't forget to add, in common justice, that I was never (a Democrat, a Rockefeller Republican or a Never Trumper,)" biographical facts which would explain 1) why L&L drove me to distraction (and departure) with its combination of selective editorial (mis)management of my comments on a few important occasions and its ongoing, cowardly neutrality and political diffidence in the midst of our nation's existential Uncivil War and 2) why a jeremiad over the Kavenaugh matter is not nearly enough.

Given the risk that L&L will once again deploy its unpublished, variable rules on word count to vaporize my effort without its ever seeing the light of day, I will be especially brief and say only that I am flattered by QET's notion that I might deliver a jeremiad. Jeremiah is a worthy role model for any man. He was a persistent realist (the hallmark of a conservative) who was hounded by false prophets ( today's DemocRats, anti-nationalist Never Trumpers and one-world Rockefeller Republicans) as he faithfully delivered for decades the unwelcome bad news (but definitely not fake news) that Jerusalem was governed by hypocrites, crooks and tyrants (the likes of which are now killing our country.)

But it's too late for a mere jeremiad. A nationwide "J'Accuse" levelled against the DemocRats by a Republican Zola would be inadequate to address the tectonic impact of the DemocRats' conspiracy to assault the nation's founding moral, legal and political principles that is typified by the Kavenaugh confirmation crisis. Chronicling post facto such a calamitous milestone in the decline of a culture (once upon-a-time) of law and a nation (formerly) of republican principle and virtue will require a Gibbon; reporting it contemporaneously calls for a Victor Davis Hanson. I suggest those looking for a jeremiad in the Kavenaugh crisis read both of those historians instead, the former for his insights into moral rot to the point of national self-destruction, the latter for his perspicacity in describing the sordid historical symbolism of the Kavenaugh affair.

BTW: my own observations as a retired Washington, D.C. lawyer accustomed, for over four decades, to observing the swamp ways of Congressional Committees and the swamp behavior of swamp witnesses and swamp lawyers and the mores and standards of federal trial and appellate judges are:
1) Losing one's temper (which did not happen,) let alone displaying great offense at being defamed by a deceitful witness and slimed by her unprincipled cabal of Senatorial co-conspirators is not "unjudicial" behavior and the notion that it is (foolishly espoused by some commenters herein) is both silly (reflective of their deplorable ignorance of a federal courtroom and of judicial ethics) and consciously self-serving (reflective of a standard DemocRat/Saul Alinsky tactic of political disruption called "move the goal post," as in shifting the objection to Kavenaugh from the crumbling "he's a sex-offender" tactic to the tactic of "he lacks judicial temperament," a shift reprising the DemocRats' and their media allies' shifting mantra from "Trump colluded with the Russians" to "Trump obstructed Comey's investigation of Hillary." ( I love the legal irony of that DemocRat charge, as if the nation's chief law enforcement officer could unlawfully obstruct an unlawful criminal conspiracy by exercising his constitutional responsibility to fire a key conspirator.)
2) The uncorroborated, refuted, politically-motivated and highly dubious witness against Judge Kavenaugh has proven herself a liar with an exceedingly bad, ever-shifting and selectively self-serving memory, and she has strongly suggested that she suffers mental health issues that, if disclosed as they should be, may well further diminish her rapidly vaporizing credibility. Her social media records and her health records would be fully disclosed in a criminal defense of her incredible charge, exculpatory information that is unfairly denied the accused here, who suffers the additional unconscionable inability even to verbally defend himself without being politically accused by his DemocRat/media accusers of misogyny, alcoholism and injudicious behavior. But even without her disclosing such (very likely) incriminating medical and social media evidence, in my opinion the accuser's not a victim, she's a criminal, a mentally unstable perjurer who warrants neither sympathy nor respect, conclusions that are sound enough on the basis of the current record which she, herself, made and which proper cross-examination would assuredly have demonstrated even further but which even her soft-ball questioning during the Senate hearing by the hog-tied surrogate of the cowardly Senate Republicans strongly suggested.

I would say more about why I left L&L, but I fear suffering (once again) "retribution by selective deletion" with verbosity L&L's unwarranted allegation. So I'll stop now.

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Pukka Luftmensch
on October 04, 2018 at 13:12:31 pm

Please don't take this the wrong way--but nobody would be sorry to see you go.

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nobody.really
on October 04, 2018 at 15:21:14 pm

Whether I'm to sneer or say "aw shucks," I do say HaHa and bravo!

Two separate sentiments (a cautionary note to take this the "right way" and an expression of moral sentiment as to a departing adversary,) each sentiment posing two separate possible meanings, one in opposition to the first, the second in harmony with the first, both sentiments expressed by one particular man who is pseudo-named with a universal, indefinite, singular pronoun.

Now you've gone and done the inscrutable, presented me with a utilitarian enigma wrapped in a verbal riddle: "Should I stay or should I go," "stay or switch" in order to please nobody and make everybody happy?

http://www.stayorswitch.com/blog/fork_in_the_road/

BTW: is there any schizophrenia in your family? There's the old story of the schizophrenic who passed a lie detector test after replying "yes" to the question, "Are you Napoleon?"

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Pukka Luftmensch
on October 05, 2018 at 21:00:38 pm

As a codicil to my very brief comments on Judge Kavenaugh's confirmation hearing I would add the following:

There can be no last laugh in a tragedy, which is the form of drama the nation has witnessed in the Kavenaugh confirmation hearing. But, as in Othello, Hamlet, Macbeth and King Lear, there can be a final blow, and I predict that final blow will be struck in the foreseeable future by Justice Kavenaugh concurring in the vote to overturn Roe vs. Wade.

And that blow will be delicious irony because Judge Kavenaugh, meeting with Senator Collins prior to the hearing, spoke of Roe v. Wade as a precedent deserving of respect according to the myriad considerations of stare decisis. But Justice Kavenaugh will be a constitutional originalist and will assess the value of a precedent in light of whether it can be found within the four corners of the constitution as originally written and amended, where Roe (and Casey) cannot be found. Furthermore, after his recent ordeal at the hands of the vindictive, unlawful Left, Kavenaugh, now, is also "woke" and possesses, up close and traumatically personal, complete awareness of the deceitful, destructive legal ins and outs of the dystopian constitutional world the Left inhabits.

Justice Kavenaugh is likely to be eager to stike the Left a severe blow if he can do so by defending the constitution and the rule of law. Tossing out Roe (and Casey) like the garbage they are presents just such an opportunity.

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Pukka Luftmensch

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