Last thoughts on Kavanaugh: like it or not, this is the bottom line

No, a confirmation hearing isn't a trial. But it isn't a "job interview," either. Job interviews are not broadcast on national TV, and hiring decisions aren't made by a vote of one hundred personnel managers. Things which might understandably be concerning in a job interview take on a different character when they are voiced in a forum in which they can ruin a person's life.

Congressional hearings are, in fact, quasi-legal events. Witnesses are called and are placed under oath.  They are examined and cross-examined. And while nobody claims that the standard of evidence required to conclude that a candidate should not be confirmed is proof beyond a reasonable doubt, the civil standard of the preponderance of evidence is and always has been assumed to be in force.

The question was never whether Brett Kavanaugh's accusers were telling the truth. The question was, and of necessity had to be, whether the preponderance of the evidence supported their accusations to the point that a reasonable person would believe that they were probably true. Not might be true. Not sufficiently credible to leave the possibility open that they could even very well be true. But that they were true. Any lower standard would be savagely unfair not only to Brett Kavanaugh but to any nominee being considered for any office. Any lower standard would mean that no sane and self-respecting person would allow his or her name to be even placed in nomination for an office requiring Senate confirmation.

Anybody can make any accusation at any time against anyone. A mere accusation cannot be enough to block a nomination. If it were, nobody would ever be confirmed to any office.

That really isn't a difficult point to grasp. Could the accusations have been better handled? Absolutely- and they should have been. As I've pointed out earlier, we have never had a president as inept at public relations as Donald Trump. He is instinctively secretive and opaque. His natural tendency is to make himself look like he's hiding something even when he isn't. Just as he would have been well advised to cooperate with the Mueller investigation and abstain from saying anything remotely negative about it precisely because an innocent man would welcome an investigation, being confident that it would clear him, so a president who truly had confidence in his nominee would have bent over backward not only to see that the charges against that nominee were fully investigated but that they were seen to be fully investigated. Instead, Mr. Trump and the Republican Senate majority and Chairman Grassley handed the Democrats their entire case on a silver platter.

Mr. Trump disastrously misspoke when he said that there were no limitations on the FBI's probe of the accusations that was demanded by Sen. Jeff Flake (R-Az) as a condition of his support for Kavanaugh. In his testimony before the Senate Judiciary Committee, Director Christopher Wray has made it clear that there were indeed limitations placed on the investigation by the White House, as there always are. However, in spite of the spin the very headline of the article linked to in the previous sentence puts on the limitations, Wray's testimony should have been a win for Trump.  It made clear that there are always limitations on an FBI investigation of this kind, and that the kind of the open-ended, time-consuming investigation the Democrats demanded and are still insisting should have been done are simply not normal FBI procedure in such cases.

There is a term for the type of investigation the Democrats wanted. It is "witch hunt." The FBI did, in response to President Trump's order and Sen. Flake's demand, the very kind of brief, focused investigation it always does when tasked with getting to the bottom of a matter like this, and not an ongoing inquisition into every detail of Brett Kavanaugh's life.

In short, despite the attempts of the left to suggest otherwise, as much seems, in fact, finally to have been done to examine the charges against Kavanaugh as could reasonably be asked. In the eyes of any fair person, due diligence can now be seen to have been done, no matter how much doubt the Democrats want to cast upon that fact. And any doubt that remains in the public mind about that fact is due to the fact that Mr. Trump, Chairman Grassley, and the Republican Senate leadership were so inept in handling the matter. They should have ordered the type of investigation that was finally done- the type the FBI did in the Anita Hill case- from the outset.

And the conclusion the FBI reached seems to have been the same conclusion the Judiciary Committee's investigators had reached, and that the FBI had previously reached in the Hill affair: that there was insufficient evidence to sustain the charges made against the nominee.

Judy Sweatnick's rather lurid charges about Kavanaugh being present at a party at which she was gang-raped and trying to drug other women so that they could be gang-raped could not be collaborated by anyone else. Deborah Ramirez- who was admittedly drunk at the time, had "holes in her memory," and until a day or so before she made her charges wasn't sure the man who exposed himself to here even was Brett Kavanaugh, had a stronger case: she was able to supply a list of others who were present when the incident occurred and who presumably could have collaborated her suddenly revitalized memories of the event, but apparently did not. And Christine Blasey Ford's story suffered from the same two, rather serious flaws we all knew about: she was able to supply neither a date nor a location for the assault (though she was able to narrow it down to a possible season and year), and three of the other four people she said were present denied that it ever happened, while a fourth- a lifelong friend of Ford's- had no memory of it.

That didn't leave the FBI much to work with. But we knew that going in.

This is not to say that any of Kavanaugh's accusers were lying. It is not even to say that any of their accusations were false. But it is to say that after a standard FBI examination apparently just as thorough as the ones it usually conducts in such cases,  none of the three accusations seem to be supported by any evidence whatsoever except the account of the accuser herself.

Yes, we know that Brett Kavanaugh was a heavy drinker in high school (though I don't recall any evidence that the problem has continued). He admitted as much before the committee, contrary to insinuations to the contrary by the media. We have evidence that he was a mean and aggressive drunk, which adds substantially to the credibility of the accusations but offers no evidence whatever that any of them were, in fact, true.

If Brett Kavanaugh had been denied confirmation on the basis of the evidence against him, it would have established a precedent for refusing to confirm any future nominee of either gender or party if there was any evidence in his or her background suggesting that he or she might even have been capable of having done something disqualifying if people simply came forward to claim- completely without collaborating evidence- that he or she had. And no self-respecting person of either gender or party who was not a blithering idiot would ever again have agreed to be appointed to any position requiring Senate confirmation.

I found Kavanaugh's anger at the Judiciary Committee hearing appropriate for a man whose name was being publicly dragged through the mud even though I have problems with certain of his answers he gave to the Committee about Dr. Ford's accusations. I am troubled by his obvious partisanship, but the same can be said of other sitting members of the Court. Of the candidates being discussed, at the time of his nomination, he was the one I hoped would be nominated. That would not have been the case if I know what I know now.

But when all is said and done, neither his accusers nor the Democrats nor a standard investigation of the charges against him by the FBI was able to show and to establish by a preponderance of evidence just cause why, having been nominated, he should not have been confirmed. And whatever doubts any of us may still have about Brett Kavanaugh- and whether we like it or not- the Senate did the right thing in confirming him.

If it hadn't, it would have established a precedent by which any future nominee for any office appointed by a president of either party could easily be  "borked" (or "garlanded," if you prefer) without any pretense whatsoever of due process.


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