Sen. Grassley's creepy circus
But there are no "good guys" and "bad guys" here. There are just silly, posturing ideologues turning a nomination to the Supreme Court into a tragic, ugly farce. No matter what happens, this is not going to end well.
The ugly fact is that it is the nature of sexual assault allegations that on one hand, they are extremely serious, but on the other hand, that they are very hard to prove. Yesterday I blogged a tweet from NBC's Peter Alexander to the effect that his organization had sworn affidavits from four "witnesses" collaborating Dr. Ford's story. I took that to mean- reasonably, I think- that four people who had been present at the incident were prepared to collaborate Dr. Ford's version of events. While this doesn't seem to be absolutely clear, it's beginning to look like they actually were merely people willing to testify that the teenaged Kavanaugh was an aggressive drunk, which is not exactly the same thing.
If such is indeed the case, to say that it was irresponsible journalism not to make this clear is an understatement. Nobody sympathizes more than I do at the plight of women who are victims of sexual assault but cannot prove it. Yet pleas to "believe the victim" and automatically treat any charge of sexual assault as proven by the very fact that it has been made are invitations to an Orwellian nightmare. Anyone can make an accusation against anyone else at any time. The most basic claims of justice demand that evidence needs to be gathered of the highest available quality and a judgment made about the actionability of a charge on the basis of the available evidence. I cannot believe that any reasonable feminist truly wants to create a situation in which those accused of sexual assault- as ugly and heinous a thing as it is, and as difficult to prove- are treated as guilty until proven innocent.
Opponents of the Kavanaugh nomination point out that this is not a criminal charge. That's true. The standard of proof required to reasonably reject Judge Kavanaugh's appointment does not rise to the level required for a criminal conviction. But it does require that the preponderance of the evidence support the charge. And here is the place where the administration and Judge Kavanaugh's supporters, including Chairman Grassley and the Senate Judiciary Committee, have dropped the ball. They gave simply nor allowed circumstances to unfold in such a way that the American people will be able to form a reasonable judgment of what the evidence does show.
I have maintained for a very long time that Donald Trump is simply not a very smart man. He is a cunning one; his career as a corner-cutting real estate investor and self-promoter required as much, and he has amply demonstrated his street smarts in that arena. But anyone with an ounce of political sophistication would have bent over backward, especially given his record and reputation, to be transparent. For Mr. Trump to refuse to release his income tax returns creates the impression that he has something to hide. That he is not required to do so does not change that.
A politically sophisticated president in Mr. Trump's shoes would have bent over backward to be seen to cooperate with the Mueller probe for the same reason. To try to discredit an ongoing investigation makes it appear, whether such is the case or not, that again, Mr. Trump has something to hide. Firing Director Comey and mooting the possibility of firing Mueller were anything but smart moves. They made him look like he was stonewalling, trying to keep the hounds at bay and prevent something from coming to light. I myself do not believe that Mr. Trump was involved in the FSB's activities in the last election. But by seeking to derail the investigation and discredit Mueller, and certainly, by defending the Russians long after it became clear that they were the ones who hacked the DNC's computers, Mr. Trump could not have done a better job of making himself look guilty. He even sought to discredit America's own intelligence agencies and sided with Russia's against them!
The case for Judge Kavanaugh has been similarly mismanaged. The fact of the matter is that the accusations against him, whether true or not, will follow him for the rest of his life. Even if he is confirmed and takes his seat on the Court, his career and his legacy will always be under a shadow. And especially since definitive evidence in a matter like this is so hard to come by, perceptions are all important. The fact is that the FBI has been called in to vet Supreme Court nominees before, and in the Anita Hill-Clarence Thomas incident concluded its investigation before Prof. Hill even testified before the Judiciary Committee, establishes a precedent which it is hard to explain the Committee departing from. When Dr. Ford and the Democrats demanded that the FBI investigate the charges against Judge Kavanaugh it was incumbent upon the Judiciary Committee to comply if only in order to let it be seen that every effort was being made to be fair to Dr. Ford and to Judge Kavanaugh alike. If Judge Kavanaugh's reputation was to be salvaged and his nomination not placed in dire peril, he and his supporters would have had to have been seen to give his accusers every opportunity to make their case and to make the maximum possible use of the resources available to get at as much truth as is available. That the Judiciary Committee has its own, very competent investigators, as Chairman Grassley points out, is beside the point. Appearances are all important, and once again, the Trump administration has done a brilliant job of making themselves appear to be trying to hide something even if they are not.
An FBI investigation could have been concluded in days. I understand the urgency of getting this matter dealt with and a replacement for Justice Kennedy confirmed before the election. To be blunt, if the Democrats recapture control of the Senate in November, no Trump nominee will ever be confirmed.
The Democrats, of course, would treat that as payback for Merrick Garland. But that doesn't mean that the administration needs to let them get away with it. Instead of hemming and hawing, the investigation should have been ordered immediately. Granted, as more and more charges are made, it could be drawn out. But at a certain point, it would become difficult for the Democrats to pretend that they weren't trying to "run out the clock." Then would be the time, after having been seen to bend over backward to be fair, to call the Democrats out on their dilatory tactics and proceed to a vote.
As it stands, one of Judge Kavanaugh's three accusers will testify before the Judiciary Committee, his opponents are making full use of the talking point that the Committee has not called in the FBI, and the appearance is created of an attempt to steamroller the Democrats and rush the nomination through without adequately examining the evidence against Judge Kavanaugh. He may be confirmed. But frankly, I have doubts as to whether Sen. Collins, Sen. Murkowski, and other independent-minded Republicans will let that happen. Once again, it appears that the Trump administration has conducted itself in precisely the manner most likely to produce the opposite result from the one they seek. Between Mr. Trump's intemperate attacks on Dr. Ford and the heavy-handed, inept handling of the charges against Judge Kavanaugh by the Republicans, his confirmation is at present very much in doubt.
It needn't be. If the charges had been fully and promptly aired and the facts made public, there would be no question of slander and innuendo blocking the Kavanaugh nomination. The charges would have been fairly heard, duly examined, and justly dealt with, and have been seen to have been justly dealt with. If the evidence supported the allegations, the nomination could have been withdrawn and a new one submitted and dealt with in a timely manner. And if, as seems quite possible, the evidence boils down to nothing more or less than Judge Kavanaugh's word against that of his accusers, perhaps combined with gossip about how the teenaged Kavanaugh held his liquor, that would have been seen to be the case.
As it stands, that is anything but clear.
A great deal of rhetoric is being spouted about whether "women" come forward at risk to their jobs and reputations to make false claims. But this is not about gender, as much as Third Wave feminists would like to make it so. There is no shortage of fanatics of both genders and at both ends of the political spectrum at this insane, polarized moment in our nation's history willing to "take one for the team" in order to either facilitate or prevent conservative control of the Supreme Court. The stakes are high, and this is not the moment to ask what it would or would not be reasonable for a politically motivated partisan to do.
As I write this, Dr. Ford is beginning her testimony. We'll see how it goes. Sen. Feinstein has made an opening statement for the prosecution. Sen. Grassley has said, in essence, that the other charges will be discussed in due course, but that today's business is Dr. Ford's accusation.
Dr. Ford deserves to be heard. She (and also Judge Kavanaugh) deserve the FBI investigation that hasn't been done. And Mark Judge, who was in the room when the incident occurred, needs to testify. Dr. Ford is a convincing witness who seems quite agitated and even traumatized by the experience of reliving the events of the night in question. It might come down to whether she or Judge Kavanaugh is more credible. It shouldn't, but it may.
But no investigation has been done by the FBI to collaborate (or refute) the story. As the Democrats rightly say, it's always been done before. That very fact makes it look like the Republicans are trying to hide something. It's Mueller redux. If the Trump administration and the Republicans had set out to sabotage the nomination of Judge Kavanaugh they could not have done a better job.
We have yet to hear Judge Kavanaugh's version of events. If indeed, the preponderance of evidence supports Dr. Ford's story, Judge Kavanaugh's nomination needs to be rejected.
And if such is the case, we'll see whether the Trump administration has learned anything. If it becomes clear that the nomination will fail, it needs to be withdrawn and a new nomination made as soon as possible.
But it seems to me that it would be in character for President Trump instead to hunker down and fight on even after becomes clear that Judge Kavanaugh will not be confirmed, thus playing into the hands of the Democrats. That clearly would not be the smart play, but it would be what I would expect.
If the nomination is withdrawn in a timely manner, I hope that the new nominee is a woman. I say this with great reluctance, and once again I want to emphasize that this has nothing to do with either gender or partisanship. But we are at a moment in the history of our country in which the center is all but abandoned, and one party has staked out its territory firmly at each extreme of the political spectrum. There is no shortage of fanatical partisans, and to ask what would or would not be reasonable behavior is not very helpful. That is only underscored by the fact, which Sen. Durbin has just revealed, that two different men have come forward and claimed that they, and not Judge Kavanaugh. were the one who assaulted Dr. Ford.
If we get to the point that the mere making of an accusation is enough to derail a nomination, nobody will ever be confirmed by the Senate again. If the fact that multiple accusations have been made is taken to be proof that any of them must necessarily be true, due process will toast and confirmation hearings will be mere farces. But if nominations are ramrodded through without due diligence, as this one seems to be in the process of being, the process will lose credibility and the already thin ice on which Congress and the courts alike are skating with the American people will crack and give way.
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