The Democrats and front groups have so thoroughly trashed their credibility with transparently partisan and juvenile stunts that nothing they offer now is going to move the needle.

Kavanaugh will be confirmed on schedule.
 

SPAM's screed and prediction is by someone with little credibility and it is transparent how low he has sunk since he abandoned the 2016 Cruz Canadacy to bow at the feet of Donald J. Trump. Recall that when SPAM was an oarsman on the Cruz Canadacy, SPAM over and over and over claimed Trump was a fascist. Now he is in lockstep with his fascist. Does it make any difference to SPAM if the woman is telling the truth about the alleged incident? Maybe Kavanaugh will submit to a lie detector test by a former FBI agent, perhaps James Comey?
 

SPAM ia flake. But Senator Flake's judgment is not. Judge Kavanaugh presumably would want this issue to be heard by the Senate Judiciary Committee to avoid an Anita Hill cloud that might hang over him. Right now there is a presumption that the woman may have been deprived of her liberty.
 

I doubt there'll be a long period with a split Court. Even if the Dems take the Senate in November -- Nate Silver gives them just a 10% chance or so -- the Rs have until Jan 3, 2019 to confirm a new nominee. That seems like plenty of time.
 

"Kavanaugh will be confirmed on schedule."

That ought to be the case, but there are a number of very dubious Republican Senators who are retiring this year, and one consequence of their retiring is that they no longer have to care what the voters think of them.

And so their masks are coming off. Flake has already asked for a delay in the vote. For what reason? An evidence free allegation relating to conduct that supposedly occurred decades ago?

Presumptively a smear, but he's still crediting it, because he doesn't have to pretend anymore.
 

Check out at the NYTimes::

"Delay the Vote — for Kavanaugh, for His Accuser and for the Court, Christine Blasey Ford deserves to be heard. And the judge deserves a chance to clear his name." By David Lat.Mr. Lat is a former federal law clerk and prosecutor. Sept. 16, 2018

It is not disclose for whom Mr. Lat clerked. But Mr Lat is descried as " ... the founder of the legal news website Above the Law and author of the novel 'Supreme Ambitions.'” Under the Trump presidency, the website "Above the Law" might have some relevancy to Judge Kavanaugh's views on the Executive.

Here's a teaser paragraph from the OpEd:

"If Mr. Kavanaugh is confirmed without further investigation of Ms. Ford’s charges, he and his defenders will not even be able to claim what Mr. Thomas’s defenders can. Judge Kavanaugh will be dogged by these accusations throughout his entire, likely decades-long service on the court. And that will lead some to question the legitimacy not just of his appointment but of the court as an institution — especially when it decides knotty social and political issues by a 5-4 vote."


 

"An evidence free allegation"

You know, an alleged victim's testimony is evidence. People are convicted all the time on just that. Judges and juries have to make credibility assessments.

The woman seems to be a reasonably stable, professional woman from what I've read so far. I've read she passed a polygraph test and has therapists notes and her husband's recollection of her telling the story years ago.

I would think that before someone is given a lifetime appointment on the highest court in the land a little time could be given to look into such a serious allegation.

But remember, Bart and Brett, and a good chunk of the GOP base, are rabid paranoid conspiracy theorists. We've seen that demonstrated on this board time and time again. These people can't expect to be reasonable on this matter, just ideological, and that in an extreme and paranoid style.
 

Not to threadjack, but I also wanted to comment on our recent discussion about the a historical and a textual 'presumption of liberty' nonsense.

As Mark rightly pointed out before the revolution the colonies operated under the English system that the legislature was sovereign and could legislate in whatever area they wanted. After the revolution the states retained a general police power.

Bart operates on the premise that because the early nation had less laws on the books there was a presumption of liberty. That's nonsense. All agrarian and rural societies have less laws on the books than industrialized and urban ones, this is true over time, across nations and even within polities like our states.

What's important is that history shows that whenever state governments *did* perceive a threat to the 'health, safety or morals' of the people they freely legislated, and courts invariably upheld, such legislation even when it would defintely fall into any 'presumption of liberty.'

Like many Americans I spent yesterday in my home watching football games, eating a pizza I ordered, and drinking a beer. In pre-Civil War America many states had laws that prohibited alcohol, prohibited commerce on Sunday, and prohibited many forms of entertainment on Sunday, including sports. Later that evening I watched an R rated film that would have been subject to criminal prosecution under the obscenity laws of nearly every state in the US pre-Civil War (remember, James Joyce was barred in states until the 20th century). I also scratched two lottery tickets, before the Civil-War many states barred playing any lottery. When we went to bed my wife took her birth control pill, which she purchased via inter-state commerce. This would have been illegal in the US during Bart's 'Golden Age' of liberty (the federal Comstock law passed in 1873).

Courts regularly upheld these laws under the general police power (see, on the state side Commonwealth v. Agler, 1851 and, on the federal side, the License Cases 1847).

Later, when an increasingly urbanized and industrialized society turned the general police power onto the regulation of private property used in business, courts also blessed that as falling under the general police power (see Munn v. Illinois, 1877 [during Bart's 'Golden Age' of liberty).

So the 'presumption of liberty' has no historical leg to stand on.

And, of course, it has no textual leg either. The Constitution nowhere mentions a presumption of liberty. Liberty is not mentioned at all in the 9th Amendment. The only place other than the preamble where it is found is in the due process clauses which explicitly say the government can deprive persons of it as long as a due process is followed.

In short, when Bart accuses 'progressives' of not falling the text of the law 'as written' or as 'understood at the time of passing' he is actually making a confession of the same.
 

Add Senator Murkowski to Mr. Lat's list.

By the Bybee [expletives deleted, despite Gina], how naive was Kavanaugh when clerking for retired Judge Kozinski about the latter's conduct with female clerks? Kavanaugh went to an all-boys high school, a private school I assume. I attended an all-boys central public high school, Boston English High School (Class of '47). We had over 3,000 students back then. Boston had several single gender schools and a few co-ed high schools. These were remnants of puritan days perhaps. For Kavanaugh, the private all boys school he attended may have been related to desegregation in his community. The all girls high school that the alleged victim attended may have been private as well and similarly related. From what I have heard here in the Boston area over the years from people who attended single gender private schools, there were events for mixing of genders. Apparently there was a lot of horniness on the boys' side of the events. And of course there might be a tad of alcohol at these events. For Kavanaugh, that was decades ago. As we know from many Congressmen, boys will be boys, even in adulthood. The #Metoo movement cannot be stopped by angry white men with political and financial power. Assuming the event claimed did occur, it is of course possible that Kavanaugh learned a valuable lesson from it and has led an exemplary life since. But denial, assuming it did occur, is not exemplary. The cover up never is. A thorough investigation is appropriate. If not, then a Justice Kavanaugh may be just another one of President Trump's men in the spotlight. Justice Thomas has not been scrubbed of Anita Hill, as those charges resurface virtually annually as a reminder that Anita Hill was NOT judged by her peers, but by Thomas' peers in the Senate.
 

falling should read following
 

"You know, an alleged victim's testimony is evidence."

An alleged victim's testimony under oath might have some minor evidentiary value, and I know people get convicted all the time on the basis of that sketchy sort of "he said, she said" evidence. That they do is an utter outrage, because in a he said, she said situation, you should never be able to get to even preponderance of evidence, let along beyond any reasonable doubt; The evidence is balanced 50-50!

But an alleged victim's mere accusation, not under oath, about a matter which will never see the court room because the statute of limitations expired decades ago, at a politically charged moment?

The evidentiary value is indistinguishable from zero. The presumption should be that it is just a political smear.
 

I am certainly uncomfortable with convictions based solely on a single person's testimony. But I don't think all of them are inherently fishy. Consider that every speeding ticket is based on he said, she said (though there the she is a police officer). Additionally, in cases like threats over the phone or in person or criminal trespass, often it would be hard to have more than 'he said, she said.' Credibility assessments can be made in those situations (some 'stories' don't hold together as well as others, putting them in doubt).

A victim starts by making an allegation, not under oath. Later they give that testimony under oath. What you're asking for is to not get to the second stage at all, you don't want a delay where both this woman and Kavanaugh can, under oath, tell their stories and let people make their credibility assessments.
 

Assuming the incident actually happened, Ford already introduced a several decade delay. That's delay enough.

And, frankly, as soon as badge cams became a thing, they should have been mandated nation-wide; The decision not to record evidence when you could have, (Like the FBI refusing to record interrogations.) should be regarded as a form of spoilation, impugning the reliability of the person who made the decision.

I propose the following rule: If you want to accuse somebody of a crime, you must do so inside the statute of limitations, and for a serious crime, much sooner than that, unless you can demonstrate the delay is not your fault.

And once the statute of limitations has tolled, accusing somebody of a crime should be treated as actionable defamation, barring the production of evidence demonstrating that the accusation is likely true. And none of this "actual malice" standard for 'public persons'.

Libeling somebody at a vulnerable moment, by accusing them of some crime they can never be tried for, and without producing evidence, just comes too cheap. It's becoming a go-to technique in no holds barred politics. We need to do something to stop it.

Taking accusations seriously demands not just that we follow them up. We have to take them seriously as an assault on somebody's good name, too.
 

I would add that Feinstein sat on this letter for a month. No doubt while desperately searching for any evidence to support it, and coming up empty.

There's your delay: I'll give you a one month delay on account of this issue, and Feinstein already spent it.
 

"If you want to accuse somebody of a crime, you must do so inside the statute of limitations"

That's lunacy. We know, as a historical matter, that there are people who have committed crimes that didn't face accusations until after the statute of limitations has occurred (we know because in numerous cases the accused confesses, such as on their deathbed). You'd have a person who came out and made a an accusation that she could defend against a defamation claim criminal or automatic defamation? Libertarian indeed!

Let's recognize the hypocrisy in Brett's made-up-on-the-spot-to-satisfy-his-political-anger-of-the-moment stance: under his proposal anyone who says that Bill Clinton sexually assaulted Juanita Brodderick has committed defamation. I'm sure Brett was never one of those people!

"and without producing evidence"

A chance to gather, give and weigh evidence is exactly what you'd like to prevent by not even having a slight delay.

You can tell Brett's stance is just partisan paranoia and anger. Any reasonable person with on the one hand, let's look into a facially credible allegation of serious misconduct before we give someone a lifetime appointment to the highest court and on the other, let's take a brief delay to at least clear this up some, sees the possibility of the first to far outweigh the second.



 

"There's your delay: I'll give you a one month delay on account of this issue, and Feinstein already spent it."

See? Brett's not interested at all in a fair and open hearing about such a serious matter. He's fine with Feinstein being the arbiter and this being looked into no more than whatever her judgement is.

Of course he's not, he's just really looking to play politics, and thinks that line scores some cheap political point while expressing his anger that the dirty ol' Dems have 'no doubt' (no need to look into this!) played a dirty trick on the swamp drainers.... It's partisan sputtering all the way. All principals and no principles (you can tell, because the alleged principles are nonsense and hypocritically applied).
 

I first became aware of Brett years ago at this and other blogs complaining of his treatment from the legal system in connection with his divorce proceedings, with attacks on both his spouse's and his own lawyer and the court as well. Brett was anticipating social media perhaps. Back then he self described as an anarcho-libertarian and a 2nd A absolutist. This preceded the #MeToo movement. Brett went "international" later on and encouraged other men similarly placed to do so. Brett has found his political soul-mate in Trump who by Brett's standards (or lack thereof) was smeared by a dozen or so women. Brett's proposals for law changes would seem to violate conservatives' views of the 1st A's speech clause but is in sync with Trump's views. Perhaps Brett's proposals are personally self-serving as well. Perhaps the #MeToo movement should photoshop Brett's visage.
 

Shag: SPAM ia flake.

Nah.

I am Spartacus!
 

Here's what any reasonable, non-partisan person would suggest.

We delay the confirmation to extend the hearings to look into the matter. The woman gets to testify. Her therapist and husband get to testify. The alleged co-assaulter gets to testify. Kavanugh gets to testify. Anyone else he wants to call to discredit her allegation gets to testify. People make up their own minds about whether this person did something that should disqualify him for a life time appointment on the highest court in the land.

Remember, while this is an allegation about criminal behavior there is no criminal trial in question, no criminal penalties. Instead, we the people, and our representatives would be tasked with making the kind of determination that employers, business partners, club members, and neighbors commonly have to make when they're told about the misbehavior of a potential employee, business partner, etc., even though they know there will be no criminal trial on the matter. But Kavanaugh will actually have the advantage that he could get a fuller hearing of the allegation, one under some semblance of due process.

If we do that the worst that could happen is a decent, qualified man had to wait a month or two to have a smear against him rebutted before becoming a Supreme Court Justice. If we don't do that the worst that could happen is an attempted rapist would get a life time appointment on the highest court of justice in the land.

Like I said, it's obvious to any non-partisan extremist* what should happen here, which one of those possible outcomes is far more worthy of being avoided.

*This is aimed at left wing extremists, many who are saying that Kavanaugh should be denied right now on the allegation, as well.
 

And, let me be clear, if this woman is making an allegation that is found to be maliciously or recklessly false, she should be prosecuted and/or sued for libel.
 

Mr. W:

One of the reasons for a statute of limitations is because, as time goes on, witnesses disappear and memories fade or distort, reducing the accused's chances of defending themselves from false accusations. This is very much a libertarian principle.

The Democrats sat in this thirty year old accusation for months until just before an election, which all you need to know about what they think of its legitimacy.
 

"That's lunacy. We know, as a historical matter, that there are people who have committed crimes that didn't face accusations until after the statute of limitations has occurred"

We also know, as a historical matter, that people level false accusations for a wide variety of reasons. You're acting as though the only cost here was on the side of not treating a possible true accusation seriously enough. But there's cost on the other side, of enabling libel and slander, and calculated political smears.

The statute of limitations is there for a reason, and it's a good reason.


 

Mr. W: And, let me be clear, if this woman is making an allegation that is found to be maliciously or recklessly false, she should be prosecuted and/or sued for libel.

Kavanaugh is a public figure in a he says/she says case, making a defamation suit nearly impossible to prove under NYT v. Sullivan. Definitely not a libertarian principle.
 

"And, let me be clear, if this woman is making an allegation that is found to be maliciously or recklessly false, she should be prosecuted and/or sued for libel."

So, to get his reputation back, he has to prove not just that the accusation is affirmatively false, but that she was deliberately manufacturing it? In regards to an event that is alleged to have occurred decades ago at an unspecified time and location?

If this is a smear, and it sure waddles and quacks like one, the whole point of placing the alleged event 35 years ago is to make sure there's no chance of Kavanaugh proving it false. Surely you understand that: If she'd accused him of doing something last week, he'd have been able to prove where he was. But 35 years ago, on an unspecified date and time? No way to do it, so she's perfectly safe making the accusation, short of having bragged on social media of a plan to derail his confirmation by lying.

Nice concession to make, that you know you'll never have to pay off on.
 

"the reasons for a statute of limitations is because, as time goes on, witnesses disappear and memories fade or distort, reducing the accused's chances of defending themselves from false accusations"

Of course there is a good reason for it in regards to *criminal proceedings.* But this is not a criminal proceeding, this is a political proceeding, character, not criminal liability is at stake, and while the same principles that make a statute of limitations just for a criminal justice system to follow also make it wise to be suspect of character determinations based on allegations from events decades ago, the reason to not entertain the accusation at all is not there in the same force either. Given the fact that we know, with absolute certainty, that its not uncommon for someone to actually have committed a crime that they escaped the statute of limitations about, the matter at least deserves a hearing. There's no chance of Kavanaugh going to jail, and the smear, if it is one, is already out there. What can come from a hearing is a better understanding of its credibility. And it's that that partisan hacks like Bart and Brett want to prevent.
 

"This is very much a libertarian principle."

Making someone's speech, their claim, of criminal activity, criminal itself because the statute of limitations has run is libertarian?

Again, we all know Bart never said Bill Clinton assaulted Brodderick, right?
 

"of enabling libel and slander, and calculated political smears"

The cost on the other side is not just possibly putting an attempted rapist on the court but also restricting a massive amount of political speech.

Paranoid conspiracy folks such as Bart and Brett, who are constantly asserting conclusively politicians and others they are ideologically at odd with are not merely wrong but criminal would, of course, be the first to be prosecuted under the standard Brett is proposing.
 

" But this is not a criminal proceeding, this is a political proceeding,"

Which doesn't make witnesses and evidence suddenly become available, the same principle apples.

You're just saying that you're comfortable with destroying careers based on unsupported allegations of decades old offenses, so long as it's done in politics instead of a court.

If there were any record of the Republican party doing this to Democrats, you'd think differently. But, as it's basically only a Democratic tactic, you're fine with it, it won't destroy anybody you care about.
 

" but also restricting a massive amount of political speech."

Accusing somebody of having committed a crime 35 years ago isn't political speech. Unless you can prove it, it's libel.

Political speech would be talking about his record. But they've got nothing on him there, so they pull out the big gun: Find some woman willing to accuse him of raping her decades ago.

I'm getting tired of this tactic. You would be, too, if Democrats ever faced it.

Perhaps they should.
 

"to get his reputation back, he has to prove not just that the accusation is affirmatively false but that she was deliberately manufacturing it?"

Why, yes, that's our current defamation law. Any other principle would, and historically was used, to restrict an enormous amount of political speech.

Let me give you an example: you've said here that Hillary Clinton broke the Espionage Act. There's a five year statute of limitation on that. Under your principle, if you say the same thing about Hillary Clinton three years from now you should be criminally or civilly punished.

See, your principle is partisan-on-the-fly nonsense.
 

The statute of limitations is there to preclude *criminal* prosecution after a specified time. It has nothing to do with the Senate's advise and consent role.

More importantly, though, talking about the statute of limitations completely misses the crucial point: Kavanaugh's behavior as a 17 year old may or may not be disqualifying, but if he lies about it now that certainly would disqualify him.
 

Mr. W: Making someone's speech, their claim, of criminal activity, criminal itself because the statute of limitations has run is libertarian?

The issue is whether the Senate should provide this woman a platform to make a thirty year old allegation, not criminally prosecuting the woman.

The statute of limitations is basic due process.

Again, we all know Bart never said Bill Clinton assaulted Brodderick, right?

Your memory serves you correctly.

However, the Democrats rejection of that and other far more distilled and corroborated accusations against Bill Clinton does make their claim to believe this witness transparently partisan.
 

"But, as it's basically only a Democratic tactic, you're fine with it, it won't destroy anybody you care about."

Actually, no. For example, I think, had he not resigned, Al Franken should definitely have gotten hearings (and I think he was the target of a conservative effort to smear him), though his fellow Democratic Senators wanted him out without one.

Politics involves character Brett, and has from time immemorial. You should know that partisans don't just argue their opponents are wrong, they often try to argue their opponents are immoral or criminal. You should know this because you do it All. The. Time.

So your principle that no one should be able to allege another person did something criminal unless the person was convicted in a court of law is nonsense built on a stack of hypocrisy. You're just mad because you think a dirty trick is being played on 'your side.'

But what's a non-partisan non-paranoid conspiracy theorist to do? We've got a woman who seems, so far, reasonable. She's taken a lie detector test and passed it, it seems. She can establish some of the background of the allegation (that she knew Kavanaugh, travelled in some of his circles at the time, that his co-assaulter was a heavy drinker at the time), she has some apparent cooberation that this has been her story for a while. And she's saying a guy we're about to put on the highest court of justice tried to rape her. Absent any pre-determined ideas about the wickedness of the Democratic party any non-partisan person would have to say 'we better look into this more.'
 

"not criminally prosecuting the woman"

Brett: I propose the following rule: If you want to accuse somebody of a crime, you must do so inside the statute of limitations, and for a serious crime, much sooner than that, unless you can demonstrate the delay is not your fault.

And once the statute of limitations has tolled, accusing somebody of a crime should be treated as actionable defamation, barring the production of evidence demonstrating that the accusation is likely true. And none of this "actual malice" standard for 'public persons'.
 

"the Democrats rejection of that and other far more distilled and corroborated accusations against Bill Clinton does make their claim to believe this witness transparently partisan."

Actually, to their credit, if you talk to many liberals today they will say that a disservice was done to Ms. Brodderick. So while there's hypocrisy there to be sure, they seem to be on a better curve than today's conservatives.
 

Mark: Kavanaugh's behavior as a 17 year old may or may not be disqualifying, but if he lies about it now that certainly would disqualify him.

How precisely do you propose to prove Kavanaugh is lying concerning a thirty year old allegation?
 

"The statute of limitations is basic due process."

It's basic *criminal* due process.

There is no 'due process' for judgements of the character of politicians. Partisans commonly allege criminal behavior of figures on 'the other side' that has not and will not and can not be proven in a court of law. And, they've been found, at times, to be correct after all!

That's why, when you're talking about a lifetime appointment to the highest court of justice, it's worth taking a month or two to look into such a serious allegation. Like I said, the worst that happens is a slight delay and a smear rebutted, the worst that happens if you don't is an attempted rapist deciding, for example, what our nation's sexual assault policies can be.
 

BD: "the Democrats rejection of that and other far more distilled and corroborated accusations against Bill Clinton does make their claim to believe this witness transparently partisan."

Mr. W: Actually, to their credit, if you talk to many liberals today they will say that a disservice was done to Ms. Brodderick. So while there's hypocrisy there to be sure, they seem to be on a better curve than today's conservatives.

Decades after they cheerlead the Democrats and their media savaging Bill Clinton's accusers as trailer trash while he served as POTUS, a handful of progressives claim to have regrets now that the Clintons are politically irrelevant.

How sweet.

The only curve on which Democrats are outperforming Republicans is in sheer politically motivated loathsomeness.
 

As I said, the shoe is on the foot of your side as well, except to the Democrat or left's side, at least some now are questioning their wearing of it. You guys are still owning your hypocrisy.


 

During the 2016 campaign Trump repeated the charge that Bill Clinton raped Brodderick. I guess Brett wants Trump sued for libel since the statute of limitations on that alleged assault ran?
 

BD: "The statute of limitations is basic due process."

Mr. W: It's basic *criminal* due process

The principle of basic due process applies to all legal claims.

"That's why, when you're talking about a lifetime appointment to the highest court of justice, it's worth taking a month or two to look into such a serious allegation."

The importance of the appointment further argues for the application of basic due process to the process.

A thirty year old allegation denies the accused a fresh memory of the events, the ability to offer an alibi defense, the ability to obtain witnesses and, if he can obtain a witness, their fresh memory.
 

"Let me give you an example: you've said here that Hillary Clinton broke the Espionage Act. There's a five year statute of limitation on that. Under your principle, if you say the same thing about Hillary Clinton three years from now you should be criminally or civilly punished."

You quoted me, so you're quite aware that I wouldn't permit a libel suit if evidence could be produced. Under that standard Hillary could be accused of a great many crimes without risk of losing a libel suit.
 

Happy Constitution Day everyone.

The is "no evidence" that this thread was going to go well.

Sort of like the Browns ever winning. At least, hope they wait to after Thursday.

Reading his opinions last term, Kennedy was done.
 

I think the SoL argument is irrelevant, but it appears that in both MD and VA there is no SoL for felony sexual assault. See https://victimsofcrime.org/docs/DNA%20Resource%20Center/sol-for-sexual-assault-check-chart---final---copy.pdf?sfvrsn=2

"You quoted me, so you're quite aware that I wouldn't permit a libel suit if evidence could be produced."

This is a trivial argument as applied to the Kavanaugh case. Testimony from Ford is evidence. That's all she would need, even under your own standard.
 

This comment has been removed by the author.
 

I am intrigued by the repeated reference by participants in this thread to the alleged victim having passed a lie detector test. Given that polygraphs are generally accepted to be pseudoscientific, what do you hope to communicate by mentioning this over and over? Is it some sort of "tell," where you are communicating the meta-message that you are willing to make any argument, no matter how flimsy, to put Kavanaugh down - and thereby demonstrate your bona fides as a partisan? And if so, what should we conclude about your other arguments?
 

"even under your own standard"

Mark Field is not aware of [or ignoring] Calvinball rules.

A bit of trivia. Justice Thurgood Marshall originally tied his resignation with the confirmation of his successor. Thus, after the announcement in June, he later wrote a death penalty dissent in September 1991:

https://www.nytimes.com/1991/09/26/us/georgia-inmate-is-executed-after-chaotic-legal-move.html

In the end, he (according to the Oxford Supreme Court guide) retired as the new term began, Justice Thomas being confirmed three weeks later.
 

"Testimony from Ford is evidence."

Fine, then I'll testify that I was hiding behind a potted plant when she did it. Can't prove I was somewhere else? I'm good.

Look this "the accusation is evidence" line was tired the first time it was uttered. The accusation is evidence that you're being accused. It isn't evidence that you're guilty. It's a claim that you're guilty.

Yes, people get convicted on the basis of unsupported accusations. People used to get burned for being witches, should we revive that practice, too?
 

"polygraphs are generally accepted to be pseudoscientific"

They have a mixed record and are deemed credible enough to be used for various vetting purposes. They are admitted for evidence in many courts.

Along with other evidence, it is something that is reasonably used to make a case that there is at least enough for more examination.* I note that the other stuff is skipped over in the reply and even the flaws of the remainder is exaggerated.

This may or might not be a tell.

--

* For instance, David Lat, who is appealed to at times by his supporters:

https://abcnews.go.com/US/story?id=92847&page=1
 

Sorry Brett, but testimony -- that is, a *sworn* statement -- is evidence. That's true everywhere and always; jury instructions expressly state that the testimony of one believable witness is sufficient to convict. You use the word "accusation", but that's the term for a charge before a witness is sworn in.

Putting that aside, there appears to be other evidence available here too, namely therapist notes and prior statements by Ford. If that is authenticated, it's also evidence. The same holds true of prior statements that Kavanaugh and Judge drank heavily at that time.

Lie detector tests are not evidence. They are junk science and should never be credited.
 

"People used to get burned for being witches, should we revive that practice, too?"

This is a very revealing statement on several levels. First, witches don't exist. Attempted rape does exist. There's no comparison between the two.

Second, we're not talking about the relevant punishment, so your reference to "burning" is irrelevant. Kavanaugh will not be burned at the stake regardless of the outcome.

Third, you're missing one of the key flaws in the witch trials: the use of "spectral evidence". See https://en.wikipedia.org/wiki/Spectral_evidence That's not at issue here. At issue here is evidence used in (very slight rhetorical exaggeration) every single case ever, civil or criminal: eyewitness testimony. Plus other evidence I mentioned above.

 

Therapists' notes 30+ years after it supposedly happened, which are non-specific to the extent that they don't actually contradict the current story.

Are we marching towards McMartin Preschool territory here? Seems like it.

"This is a very revealing statement on several levels. First, witches don't exist. Attempted rape does exist. There's no comparison between the two."

There's a very revealing similarity, though: The accusation alone was enough to place the burden on you to prove your innocence. And that's what is being done here today.

No, Kavanaugh is not going to be burned at the stake, just his career.
 

But are lie detectors "junk science" in the Trump administration's efforts to "out" the anonymous senior Trump official whose NYTimes OpEd said naughty things about Trump? Mike Pence would take such a test in a heartbeat, assume a Revengelical has a heart. While I agree that lie detectors are junk science, the FBI and other federal agencies utilize them from time to time. Should such not be permitted?
 

Mark:

After the statute of limitations or repose have run, none of this is admissible evidence in a court of law.
 

As to Kavanaugh's career as a Circuit Court Judge, how would that be jeopardized? Keep in mind Judge Kozinski retired. Was Judge Garland's career as a Circuit Court Chief Judge jeopardized by Mitch McConnell's refusal to bring his nomination by Obama to a vote?
 

Brett:

What I found telling was the witness claims she just made up her mind to come foreward, but had her therapist notes and a lie detector test all lined up for a Washington Post interview.
 

SPAM's 11:03 legal opinion might not apply to a libel action such as the one brought against Trump in NY where the SoL had run against an alleged sexual assault on the plaintiff by Trump, such action being based upon Trump having called the plaintiff a liar about such alleged assault. I'm sure Judge Kavanaugh will not make the same mistake that Trump did. SPARTACUS? SPAM is more Doofus.
 

To add to my previous point about statutes of limitation, it appears that the relevant SoL in DC for the alleged crimes would be 10 years (third degree sexual assault).

"The accusation alone was enough to place the burden on you to prove your innocence. And that's what is being done here today."

No, that's not what's happening.

"Kavanaugh is not going to be burned at the stake, just his career."

If Ford had reported the crime at the time, he would never have had a career. In any case, your statement presumes that Kavanaugh is innocent, so you're presuming your conclusion.

"Therapists' notes 30+ years after it supposedly happened, which are non-specific to the extent that they don't actually contradict the current story.

Are we marching towards McMartin Preschool territory here? Seems like it."

You really should not be making claims about the use of evidence in court when it's clear that you don't understand it. First, your reference to McMartin is irrelevant. Ford was not a child when she saw the therapist, and you have no evidence to claim that the therapist somehow caused her to believe a non-existent fact.

Second, the notes would be admitted for a limited purpose, namely to rebut the accusation that she invented the crime recently for partisan or other purposes. If nobody made that accusation, the notes would not be admissible in court (subject to a caveat that nobody knows the exact content of the notes or what the therapist would say).


 

In a suit, the defense would have a strong argumrnt to discover the complaining witness’s entire file to rebut the prosecution’s likely admission of the notes as evidence. If the file reveals these notes are suspect, the defense may consider calling the therapist to attack her and the complaining witness’s credibility.
 

"Lie detector tests are not evidence. They are junk science and should never be credited."

It is appreciated that other things are cited, but lie detector tests are "evidence" in various judicial proceedings. The Supreme Court in United States v. Scheffer, 523 U.S. 303 (1998) held (noting the lack of scientific consensus of its probative value) that it "cannot conclude that respondent’s defense was significantly impaired by the exclusion of polygraph evidence."

But, they are allowed to be submitted as "evidence" in various jurisdictions.

https://www.legalmatch.com/law-library/article/admissability-of-polygraph-tests-in-court.html

The argument that it should not be is duly noted, but if we are going to use that requirement as to what "evidence" means, it is open to confusion. I'm sure many things allowed as evidence might be deemed not "really" evidence in a common sense usage. One lawyer on another forum, who me and Mark Field know online, e.g., suggested that at times eyewitness testimony might be less probative than a lie detector test.

Various jobs require a lie detector test. The Employee Polygraph Protection Act (EPPA) from 1988 is a federal law that prohibits most private employers from giving lie detector tests to employees, but government employees still might be required to take them subject to certain limits. If a negative result in the latter context leads to consequences, the person affected might be upset at the lack of "evidence," but that might not stop that word from being used against them.

https://www.thebalancecareers.com/lie-detector-tests-for-employment-2060487

I'm fine with noting the issues with lie detector tests, especially since they are not the only thing being used here, but the rest holds as well.
 

"The principle of basic due process applies to all legal claims. "

This isn't a legal claim. This woman is not asking for a prosecution or a civil suit. She is saying that this man did something awful to her. Not everyone or everything awful falls under government legal provenance (you'd think a 'conservative' or 'libertarian' would know that). This is a claim about character, which has always mattered in politics.

"The importance of the appointment further argues for the application of basic due process to the process."

Absolutely wrong.

If K is wrongly accused, but denied the confirmation, he will be besmirched (no small thing), but Trump has a list of qualified conservatives to take his place. The costs are very small.

If K is rightly accused, but given the confirmation, we have an attempted rapist on the court of highest justice in the land.

Only a partisan nut would think the first is the greater risk.
 

"I wouldn't permit a libel suit if evidence could be produced."

Actually, what you literally said was: "once the statute of limitations has tolled, accusing somebody of a crime should be treated as actionable defamation, barring the production of evidence demonstrating that the accusation is likely true"

That's quite different. But you've never been very careful about fine distinctions, have you? That's the kind of thing, btw, that would separate a non-libel liable defendant and a liable libel defendant (it's called 'recklessness' in the law').

You're confident that you and your ilk wouldn't be taken to court successfully under your standard. But confidence in extreme, nutty positions is the raison d'etre of extremists.

A lifelong GOP operative with a long, impressive law enforcement career, and with access to evidence and resources that you are not, looked at the charge against Clinton you so confidently assert. In our system we have a threshold for starting an investigation (1), a threshold for bringing a charge (2), a threshold for bringing an indictment (3), and a threshold for conviction (4). This man, and his team, with experience, education and resources far, far, far superior to yours, concluded that the case against Clinton faltered at step 2. Step 2.

And you think you could go into a federal court and prove otherwise?

Laughable.

You don't get it. The first persons bagged by the law you're proposing would be: you.
 

Let's be clear here. There are several reasons why Brett, Bart and other movement conservatives might fight even a mere hearing on the matter.

1. They don't think that an attempted rape disqualifies someone from being a US Supreme Court Justice as long as the person is of the party/ideology they share.

2. They don't think the charge could possibly be true, because it 'comes from' or was 'sat on' or whatever the rascally Democrats, who, everyone knows, are always up to no good.

3. No charge from decades ago deserves a hearing because of the logic of the statute of limitations in criminal matters.

Beyond all reason, I'm going to give them the benefit of the doubt on 1.

As to 2...I'm not someone who thinks the Democrats can't be rascals, but there's no reason to suppose that all and every accusation of this type that comes from them is just rascality. Even a stopped clock is right twice a day.

That leaves 3. It's not facially such a bad argument. I agree with the logic behind statutes of limitation. I deplore the trend to expand them.

But...do you really want to take a stance that no charge of a serious crime can never be considered for anything if it's passed the legal statute of limitations? That's...weird. I mean, historians that conclude that someone not convicted were actually guilty, their work should be ignored, not given a fair hearing because it's past the statute of limitations? We've had many examples of cases of egregious behavior that wasn't credibly established until decades after the statute of limitations (think of the Catholic Church scandal alone). So we *know* it happens....

But for some reason, Brett and Bart and their ilk think such allegations *should not even be given a hearing with fair process* in a *non-criminal setting.* I mean, we're just deciding whether this guy gets a political promotion.

Everything Brett and Bart have done here demonstrates they don't believe this principle they suddenly endorse. They constantly accuse their ideological opponents of crimes that they haven't, and will never be, convicted of, crimes that actually often have very small statutes of limitations. They think, well that's different, I *know* those people I oppose *did it.* But Alex Jones thinks that. The John Birch Society thinks that. The Weathermen thought that. Every extremists thinks they could show that their ideological opponents *obviously* did the evils they accuse them of. That's the mindset of paranoid conspiracy extremists.

But of course, they're weirdos. They'd be the first to be taken to court and convicted by non-weirdos.

But look, they don't believe in what they're professing today. It's just useful to their momentary partisan goals. If it becomes not useful tomorrow, it will change.
 

""I wouldn't permit a libel suit if evidence could be produced."

Actually, what you literally said was: "once the statute of limitations has tolled, accusing somebody of a crime should be treated as actionable defamation, barring the production of evidence demonstrating that the accusation is likely true""

So, you try to prove I contradicted myself by demonstrating that I'd said what I claimed I'd said?

Your "lifelong GOP operative with a long impressive law enforcement career" didn't say she didn't break the law, quite the contrary.

Rather, he just expressed his opinion that she wouldn't be prosecuted for the violations: "Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case."

Even this much required ignoring different laws she violated, and various factors such as the server being wiped after it was under subpoena.
 

Mr. W: But for some reason, Brett and Bart and their ilk think such allegations *should not even be given a hearing with fair process* in a *non-criminal setting.*

The Democrats had their chance to call witnesses and knew about this complaining witness since June.

However, in order to give wobbly Republicans CYA, invite the woman to appear Wednesday afternoon in a public hearing under oath for two hours followed by Kavanaugh for two hours.

I skimmed the complaining witness's non-credible WP story and some new facts emerging while waiting for court this morning. If I have time this afternoon, I'll break down how to cross examine this witness.
 

"But...do you really want to take a stance that no charge of a serious crime can never be considered for anything if it's passed the legal statute of limitations?"

No. I take the stance that it shouldn't be considered in the absence of evidence.

And you can call an accusation "evidence" all you like, but it's still just an accusation. "So and so did something to me 35 years ago, but I don't remember where or when, and I didn't mention it to anybody for 3 decades, when I told somebody a substantially different version of the story." is not much in the way of proof.

Talk is cheap, proof is expensive. You want to buy the delay of Kavanaugh's confirmation beyond the election, and you don't want to pay the hard coin of evidence. You want to buy it with the chump change of an unsupported accusation.
 

Brett, you're obviously terrible on fine distinctions that matter quite a lot in the law.

Producing evidence is not the same as producing evidence demonstrating that the accusation is likely true.

"there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case"

Again, a distinction that a partisan extremist could never understand.

"evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case"=a big legal nothingburger. He's literally saying that, with all his access and resources, this political enemy of hers *couldn't even recommend the second of the four steps outlined.*

You confidently express the fourth step all the time. Good luck with proving that in court Brett!
 

"The Democrats had their chance to call witnesses and knew about this complaining witness since June."

If you're not a partisan hack, who cares? Who cares about how badly the Democrats may or may not have 'handled' this?

A woman who doesn't seem insane or troubled and who definitely travelled in the circles of K at the time says he attempted to rape her.

Who cares who or how 'handled' this allegation? Do you really suggest that an allegation from a non-obviously crazy person that a potential supreme court justice attempted to rape them should not be given some time to explore?


 

Brett, do you discount the historical fact that sometimes a person will not complain of an actual criminal act by another until well after the statute of limitations?

It's a fact you know. We know that from deathbed confessions. So it happens, as a demonstrable fact.

So what's your argument that it should never be considered, even in a non-criminal, simply character based context?
 

Over at Verdict [https://verdict.justia.com/] as an example Prof. Hamilton (a conservative leaning sort) has been for some time strongly pushing for justice of victims of sex crimes, including involving the Catholic Church.

I have been wary about a push to change the statute of limitations in that context but that is different from non-criminal matters. And, given the need for openness there, possibly civil damages in various contexts (e.g., hiding evidence) and the proper placement of church officials, that distinction matters. Also, more recent handling of past acts [such as lying under oath] can matter as well.

Such distinctions should be carefully kept in mind. Plus, this hasn't been the first time concerns have arisen about Kavanaugh in relation to the #MeToo movement, if not in such allegedly horrible way:

https://thinkprogress.org/brett-kavanaugh-has-a-pattern-of-implausible-claims-about-sexual-misconduct-7613d60b8ab7/

The process raises questions that are important to think about. But, when Judge Thomas was nominated, I think he was too green for such an important role, especially if he was going to replace a civil rights great. Someone in his early 40s generally going on a court with life tenure was concerning.

Mitch McConnell warned Trump about nominating Kavanaugh. Perhaps, if not for the same reasons in his mind, it was good advice above and beyond this incident.
 

"Brett, do you discount the historical fact that sometimes a person will not complain of an actual criminal act by another until well after the statute of limitations?"

I'm perfectly aware of that, and if Ford had any actual evidence her allegations were true, it might be reasonable to discuss the implications of what she alleges in regards to Kavanaugh's fitness.

But in the absence of any evidence, we must also keep in mind that people make false accusations all the time.

It may seem unfortunate that, if somebody does something bad to you, and you stay silent for 3 decades, tell your therapist one version of what happened, without names, and then another half decade later go public with a different version of events when it helps your political party, all without any actual corroboration, (Denial by somebody you say was there, rather.) you don't get any traction.

But that's just the price we pay so that random people can't destroy careers on their unsupported word.


 

It's interesting that Brett wants beyond-legal standards to apply to a non-judicial hearing, but also wants below-legal standards to apply to an actual prosecution of Hillary Clinton.
 

What I wanted in the case of Hillary Clinton was for her to be treated like any ordinary person, instead of being given a "headquarters special".
 

Anyway, my own off topic comment: David Pozen's latest post rivals Tushnet's usual output for exposing the scary side of 'liberalism'. Tushnet doesn't write quite as obscurely, though. Got to give him points for clarity.

"1st amendment Lochnerism"; You can just see where THAT is going. The left is abandoning any pretense of caring about liberty so fast it's leaving a vapor trail.
 

Yeah right Brett, the people yelling 'Lock her up' before, during and after the process clearing her are just champions of due process...

And as to Pozen's piece: the people that think the essence of the First Amendment is corporate access to pharamacy prescription records but are not concerned when the government criminalizes meeting with 'terrorist organizations' to give them advice on peaceful dispute resolution techniques are, of course, not to be taken seriously.
 

Thought this would be a good time to remind folks: despite the fevered paranoid conspiracy theories of our resident movement conservatives (which, sadly, is a majoritarian position among conservatives now), it is actually THEIR administration that currently has FIVE top level campaign advisors/managers and administration officials who have pled guilty to offenses related to their service to a hostile foriegn power.

Can you imagine the fevered, illogical partisan scenarios they would be cooking up if the shoe were on another foot?
 

"and if Ford had any actual evidence her allegations were true, it might be reasonable to discuss the implications of what she alleges in regards to Kavanaugh's fitness."

But exactly what you want to block is a hearing for her to produce and assess (and critique, K's supporters will be empowered to cross examine) that evidence.

So we've got a woman who is probably not crazy (she's a middle aged professional). She has made an allegation about someone that she certainly travelled in the circles of at the time of the allegation. She has reportedly passed a polygraph on her claim and has told this story years before the nomination.

And you want to block a chance, under a fair hearing (if anything, since the committee is run by Republicans the process will favor K) to have her defend that evidence and present any more she may have?

The only reason you think that is that you really want your man on the court and/or have pre-determined that any allegations against him must be Democrat dirty tricks. But why should any non-ideological extremists buy into your thing?
 

"What I wanted in the case of Hillary Clinton was for her to be treated like any ordinary person, instead of being given a "headquarters special"."

Not to go through this for the umpteenth time, but the whole point of Comey's statement -- "no reasonable prosecutor" -- was to say that she was being treated like any ordinary person.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Christine Blasey Ford is hardly an unbiased witness. The professor is a progressive Democrat activist who is a donor to ActBlue, an organization funding progressive Democrat candidates; signed onto a letter attacking the Trump prosecution of illegal aliens; and participated in an protest ranting that Trump is 'anti-science'. More bizarrely, it appears Kavenaugh's mother was a judge in the case where a lienholder was attempting to foreclose on the Blasey family home.

Now, let's take a look at the allegations to date.

You can read the alleged July 30 Ford letter to Feinstein as it was leaked to here to CNN.

Feinstein took Ford's allegations so seriously that she sat on the letter and never once raised the claims with Kavanaugh during the days of confirmation hearing questions.

On September 13, after the confirmation hearings and only a week before the committee vote to confirm, Feinstein told the Democrat media, but not her GOP colleagues on the committee, that she referred a confidential letter alleging sexual assault against Kavenaugh to the FBI.

Three days later, the Washington Post published an interview with Ford.

The letter and her statements to the WP are a hot mess of contradictions.

Ford gives extraordinary detail of Kavenaugh's alleged act well over thirty years ago, but she fails to give the location of the act or even the year when it occurred, beyond saying it happened in the early 1980s. Very likely by intent, these selective memory losses prevent Kavanaugh from offering an alibi.

Ford tells the WP that she wanted to remain anonymous and not come forward until Feinstein announced the existence of the letter on September 13, just three days before the WP published the interview. However, Ford was in contact with WP back in July before writing Feinstein, then engaged attorney Debra Katz, underwent an lie detector test and presumably provided Katz with her therapist notes in early August, weeks before the WP article was published on the week of Kavenaugh's committee vote. Revealing timing.

Ford and her husband claim Ford first disclosed this act to her therapist in 2012, specifically identifying Judge Kavenaugh. However, the alleged therapist notes are quite vague, with no detail concerning the act and not identifying Kavenaugh. The timing of the disclosure is curious as well. 2012 was roughly thirty years after the alleged act, but was an election year where Kavenaugh was on the GOP short list for the Supreme Court if Romney was elected. Coincidence?

 

Continued...

Finally, in addition to being a high-powered DC sexual harassment attorney, Debra Katz is a long time Clintonista propagandist and Democrat donor. Back in the day, Katz defended Bill Clinton and trashed Paula Jones as being non-credible. Currently, Katz is a leading light of the #metoo movement and argues that it's not Ford's job to corroborate her story. I wonder who hooked up Ford and Katz during the summer when Ford claims she had no intention of going public.

If you find any of this credible, I have some white sand Pacific coast property to sell you here in Colorado.
 

"But exactly what you want to block is a hearing for her to produce and assess (and critique, K's supporters will be empowered to cross examine) that evidence."

She doesn't need a hearing to reveal evidence. And, again, a one month delay might be reasonable to evaluate her accusation. Too bad Feinstein already spent that month keeping the accusation under wraps.


 

Technically speaking, nothing is evidence unless it's admitted into a hearing. For testimony that means it must be sworn and otherwise admissible. For documents, that means they have to be authenticated and otherwise admissible.

Your accusation against Feinstein is partisan nonsense.
 

Monday hearing announced.

 

The defensive position for Kavanaugh now seems to be that Ford is mistaken as he was not at that place when and where the alleged assault took place.. Kavanaugh will not claim that Ford is lying as that could lead to a defamation action. (Think that case pending in NY against Trump.) Maybe an assault of Ford did take place but she is mistaken that it was he.

Reminds me of the DUI defense counsel who asked her client at trial: "How fast was that tree traveling when it hit your car?"
 

Who hatched this defensive posture? 12 guesses.
 

"Not to go through this for the umpteenth time, but the whole point of Comey's statement -- "no reasonable prosecutor" -- was to say that she was being treated like any ordinary person."

Then the whole point of the statement was to lie.
 

Shag:

What location? Ford told the WP she could not recall.
 

Is this an old "Laugh-In" variation: "There go the Judges, there go the Judges"? Cute Judge memoir anecdote about George W. slapping Laura's behind to remind her who's in charge. Is it a coincidence that a Judge and a future Judge worked in tandem while under the influence? It's understandable why angry older white men were against the ERA.

I guess SPAM doesn't want to take a 7:26 PM guess.
 

When I say that Comey's statement would have been a lie if he was claiming that Clinton was treated like anybody else, it's because Congress already has found internal communications within the FBI stating she was getting a "headquarters special".

A "headquarters special", for the curious, is where a case is diverted from the regular process ordinary people are subjected to, and handed over to a handful of political appointees in the head office, to NOT be treated like anybody else.
 

Brett is really a conspiracy dickhead. I guess he's a full-time troll now that he's apparently in retirement from his day job. But #MeToo has Brett and SPAM in its sights. But, hey, they're just lemmings following their leader.
 

Check out this post headlined at the VC:

Politico Symposium on How to Handle the Kavanaugh Sexual Assault Accusation
It includes contributions by a variety of legal scholars and commentators, including myself.
Ilya Somin|September 17, 2018 10:15 am
 

Check out this NYTimes editorial:

#BrettToo? The Senate Judiciary Committee is right to reopen hearings on Brett Kavanaugh’s confirmation after a claim of sexual assault."
Sept. 17, 2018
A wise observer had noted that the orchestrated presentation of Kavanaugh focusing on women and girls and family was in anticipation of possible claims such as the one that finally publicly emerged, that effort at pre-emption having failed.

SPAM provided a litany of the Trump/Republicans talking points. Compare SPAM's listings with those in the editorial. Especially $72.00 in political contributions.

In the end, Trump/Republicans and our own Bert and Brat will pull out the "boys will be boys, so what?" defense. Perhaps Kavanaugh should have addressed head-on his teenage proclivities revealed in his school friend Judge's memoir referenced in the editorial, and that he learned from "wasted" occasions, going off to college and law school and lawyering, getting into politics, becoming a judge, becoming another Coach K and recognizing the value of having so many female clerks. Just a tad of humility and of youthful human errors. But "no," as the editorial points out it's the Trump "deny, deny, deny." Women represent more than 50% of voters. Republicans on the Senate Judiciary Committee no longer have the luxury of 27 years ago with Thomas.


 

And check this out from Ryan Cooper at "The Week":

***

Kavanaugh has denied the assault ever took place — which also bears directly on his morality and honesty right now. It is certainly possible he is right and Ford is lying or misremembering the event. But the very first public thing Kavanaugh did as a Supreme Court nominee was lie straight through his teeth, preposterously asserting that: "No president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination."

At a minimum, this story deserves careful consideration at next week's hearing. But if the moral debauchery of the Republican Party is any guide, deceit is much more likely in the offing.

***

The Kavanaugh quote was obviously in the spirit to Trump's claim of yuge, largest ever inaugurations crowds. This was an obvious suck-up to Trump, perhaps even scripted by Trump. (Sort of like the recent statements made by the FEMA guy on deaths resulting in Puerto Rico from hurricane Maria.) Will Justice Thomas get his soulmate?
 

NYT: A wise observer had noted that the orchestrated presentation of Kavanaugh focusing on women and girls and family was in anticipation of possible claims such as the one that finally publicly emerged, that effort at pre-emption having failed.

A dishonest observer, maybe.

That dog and pony show was meant to respond to the Democrat slander Kavanaugh was “anti-woman,” not to preempt the Ford fabrication.

BTW that beachfront property I am selling is $3 million. I will take payment wired to my Panamanian bank account.
 

Here's the URL for that Politico Symposium on Judge Kavanaugh:

https://www.politico.com/magazine/story/2018/09/17/what-should-the-senate-do-with-brett-kavanaugh-219985

Sandy is one of the contributors.
 

Shag:

Richard Epstein offered only Politico essay worth reading:

‘A perfect sandbag’

The Democratic resistance to the Kavanaugh nomination has been an all-out assault on his judicial philosophy and personal integrity from the moment that it was announced. I have no doubt that any senator has the full and complete right to vote whatever way he or she thinks fit on the nomination. And I have no doubt that if the Democrats held a majority of the seats in the Senate, they could have stonedwalled this nomination, just as the Republicans did with Merrick Garland. It is well-established constitutional law that the Senate need not call a hearing, let alone schedule a vote. In retrospect, the decision not to hold any hearings on Garland should be regarded as a wise and humane political decision, because it spared Garland and the nation a similar disgraceful exhibition of intolerance that some conservative opponents of Garland may well have launched to tarnish his confirmation chances.

But this last-ditch decision to sabotage Kavanaugh at the 11th hour is a disgusting piece of political propaganda. Christine Blasey Ford behaved wholly improperly when she decided to write a letter only to “a senior Democratic lawmaker,” in which she made the most serious allegations of sexual assault against Kavanaugh. At the very least, she ought to have handled matters wholly differently. If she wanted to keep matters confidential, she should have sent that letter to President Trump and to Senator Chuck Grassley (R-Iowa), the chairman of the judiciary committee. She also should have sent it to the FBI for investigation. And she should have done all of these things at the earliest possible moment, in time for a principled and neutral examination to take place before the Senate hearings took place. Then, she should have sat for a cross-examination.


Putting the information exclusively in the hands of key Democrats thus invited the wholly corrupt strategy that has now unfolded. First, the Democrats would try to discredit Kavanaugh by engaging in a set of procedural antics and obnoxious substantive questions during the hearing, without mentioning this letter. When that strategy abjectly failed, they knew they had to go to Plan B, which was to release the letter and the allegation days before the confirmation vote. A perfect sandbag, for the Democrats knew full well that there was no time to respond to them, without causing an enormous delay in the confirmation hearings. Their hope was, and is, to create a huge media circus that would take weeks if not months to sort out. Shipwreck this nomination. Make it impossible for the current Senate to pass on any subsequent nominee before January. Then take control of the Senate and create a stalemate that could run on until the next presidential election.

And for what? Ford, Kavanaugh’s accuser, maintained a stony silence on these allegations for more than 35 years. At no point did she raise them in connection with the Senate confirmation hearings before Kavanaugh was confirmed in 2006. Kavanaugh has categorically denied the allegations. Late last week, Mark Judge, his alleged accomplice, denounced the allegations as “absolutely nuts.” No other woman has ever made any allegation of this sort against Kavanaugh. and 65 women have written an explicit letter in his defense. Kavanaugh is right not to respond beyond his categorical denial, knowing full well that further comment would only draw him further into a vortex on which credibility determinations would be unending. And the Senate is right to continue with the confirmation vote. The institutional damage to the Senate, the Supreme Court, and the nation has already been enormous. What is left now is only the sorry task of damage containment. What sane judge would like to be the next Supreme Court nominee?
 

SPAM, whose only redeeming feature is that he will not pass on his vile genes, is comfortable with the anti-abortion views of Judge K. is SPAM's reference at 8:57 AM to "That dog and pony show ... " Judge K's orchestrated presentation? If so, it was indeed such a "show." What might a Justice K think of any of the females expressing support for him who might seek abortions because of health, financial or other reasons they might feel would be in their best interests? Or are all Judge K's female supporters also anti-abortion on principle?

SPAM ignores the Judge memoir referenced in the NYTimes editorial that Judge K and his handlers were well aware of in advance of the Committee hearings, to wit, Judge K's teenage indiscretions.

Now, how about the $72.00 in political contributions. As Trump would say, "That's YUGE!"

Our own dynamic dyslexic duo Bert and Brat must be upset with their failed efforts in this thread to thwart any further delays at the Senate Judiciary Committee on voting on the confirmation. Trump and the Republicans caved despite the time consuming efforts of Bert and Brat. But as faithful lemmings, Bert and Brat will probably join in the Trump/Republicans final "Boys will be boys, so what?" defense.

By the Bybee [expletives deleted, despite Gina], it is worthy reminding visitors to this thread that all Republican members on the Committee are boys, excuse me, men.
 

My, my, is SPAM such a fast reader, or did he scroll until he came to the Epstein screed? Perhaps others among the "usual suspects" at this Blog might be tempted to counter SPAM's cheap trick selection by selecting other comments.
 

No entry from Eric Segall (Dorf on Law), just off from debating (there is video) originalism with someone, perhaps a lead-up to his "Originalism as Faith" book launch?

Could be short. "Just keep it at eight." That's his thing -- four justices picked by each party with cases themselves chosen by a roving panel of court of appeals judges.

So, if he isn't confirmed, he still could have influence while he commiserates with Merrick Garland. "Sorry about that, Brett. Thanks for saying nice things at the hearings about me. If I had any, I would have done the same."

Sandy Levinson made a comment about honesty. But, as noted by others regarding his comments under oath about Kozinski et. al., I think that ship probably sailed.

IF someone was fully aboveboard upfront and something came up like this from their past, it might be able to be let go. I think when you get to top positions, at least in this day and age, something like this probably (given current understanding, my constitutional guide) would be disqualifying. Something certain Democrats found out for lesser positions.

Senator McConnell warned them about the complications that would arise if they chose Kavanaugh. This specifically might not be what he had in mind but he's a savvy political animal. Should have listened. Aim for 85% instead of 100%

We shall see what happens.


 

Shag:

The Politico profs were not offering deep analysis.

The progressives were repeating Democrat talking points about Kavanaugh honesty and the need to delay, delay, delay.

The libertarian/conservatives were doing the Flake two step - let them testify and let the chips fall where they may.

Epstein was the only one with the honesty to call out this transparent Democrat sandbag.
 

This thread is a trainwreck.

If Kavanaugh did this, he should admit it and let the chips fall where they may.

If he didn't, he should deny it and see if the American people believe his accuser.

Either way the delay of the vote is proper.

And despite Bart's comments, it is possible to be a Democrat and to still make a credible assault allegation. "She's a member of the other party so this must be made up" is the most tired talking point of all.
 

Dilan:

Of course, partisan Democrats can be sexually assaulted. Indeed, the reporting of the #metoo era suggests partisan Democrats are more likely to be both perps and victims.

For the multiple reasons I noted above, Ford is non-credible.
 

SPAM dug into Epstein's pile of "deep analysis" (aka Deep Doodoo) and found a pony to saddle up. As to Epstein's "honesty," it's on a par with SPAM's.
 

Remember that commercial of years ago: "There's a Ford in your future!"? Well, ....
 

Query: has #MeToo posted SPAM's photo to inform SPAM's neighbors in his rural CO mountaintop community?
 

Bart:

To be clear, Democrats are sometimes assaulted by Republicans too. No party has a monopoly on sexual assault.
 

"This thread is a trainwreck."

As compared to others?

With the Killer Bs, two slavery apologists, a former Pat Buchanan supporter and Ben Franklin's protégé seems par for the course.

Anyway, this is good:

https://www.nytimes.com/2018/09/18/opinion/anita-hill-brett-kavanaugh-clarence-thomas.html

If not applied here, it should be a guide for others who wish to listen.
 

Christine Blasey Ford is hardly an unbiased witness. The professor is a progressive Democrat activist who is a donor to ActBlue, an organization funding progressive Democrat candidates; signed onto a letter attacking the Trump prosecution of illegal aliens; and participated in an protest ranting that Trump is 'anti-science'. More bizarrely, it appears Kavenaugh's mother was a judge in the case where a lienholder was attempting to foreclose on the Blasey family home.

So she is a Democrat. Your description of her political activities is hyperventilating. They are mainstream actions, not radical at all.

As for the foreclosure case, that is cited in some RWNJ web site and has not, AFAIK, been picked up by anyone else. So my guess is it is a big nothing, if it's true at all.

I note that Grassley appears deaf to pleas for evidence other than direct testimony from Ford and Kavanaugh. He wants the allegation to remain uncorroborated at all costs, it appears.
 

Joe:

Like a good apparatchik, Hill is parroting the party line about the necessity to conduct an investigation of the Ford fiction past the election.

Given this is an academic venue, we should instead apply the lessons provided by recent university kangaroo courts persecuting students with non-credible accusations of "sexual assault" with all the due process of the Chinese communist cultural revolution.

Our current political standard of anything goes and using reprehensible and non-credible slanders to destroy political opponents is simply a part of the game (at least when used by Democrats against Republicans) makes the Duke lacrosse team star chamber appear to be sober reflection in comparison.

In this venue, at least, we should return to the basic due process standards of probable cause within a reasonable period of time to start a prosecution and the standard of proof beyond a reasonable doubt for a conviction.

Sadly, I have no reason to suspect we will.
 

byomtov: So she is a Democrat. Your description of her political activities is hyperventilating.

Only a tiny fraction of Democrats engage in Ford's extra-curricular activities, despite the Democrat media's disproportionate coverage of them for propaganda purposes.

Ford is a very public partisan and Trump opponent, which is perfectly admissible evidence of her bias in making these claims.

As for the foreclosure case, that is cited in some RWNJ web site and has not, AFAIK, been picked up by anyone else. So my guess is it is a big nothing, if it's true at all.

As I noted above, I considered the fact to be bizarre. This is one of those things you explore ahead of time and not in cross examination because you have no idea what rabbit hole into which the witness may plunge.

I note that Grassley appears deaf to pleas for evidence other than direct testimony from Ford and Kavanaugh. He wants the allegation to remain uncorroborated at all costs, it appears.

What evidence? Ford has offered no corroboration and her attorney is making the rounds of the Democrat media claiming that, unlike Paula Jones, Ford need not provide any corroboration.

 

byom:

That was the same strategy Biden adopted with Thomas. He refused to put on testimony of women who would corroborate Anita Hill. It was shameful.
 

Bart:

So just to be clear, you feel any assault allegation by a partisan Democrat is by its very nature not credible. Partisan Democrats are never assaulted by Republicans.

And you would apply the same standard if a partisan Republican lodged an allegation against a Democrat.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Dilan: you feel any assault allegation by a partisan Democrat is by its very nature not credible.

You are misrepresenting what I posted.

Evidence the complaining witness making an allegation of sexual assault against a Trump nominee has a history of anti-Trump activism would be admissible as evidence of her bias in any court of law.

And you would apply the same standard if a partisan Republican lodged an allegation against a Democrat.

It took me a minute to envision your proposed counterpart.

So you are asking if I would make the same argument against a conservative professor who donated to a PAC dedicated to electing conservative Republicans, joined other conservative professors in submitting a letter condemning Obama's failure to enforce our immigration laws, and condemned Obama as 'anti-science" for not providing more funding conservative bureaucrats who later made a sexual assault allegation against Sonia Sotomayor four days before her confirmation vote?

If you can find such a unicorn, yes, I would make the same argument.
 

Despite the representions of her Democrat attorney making the rounds of the Democrat media that Ford is chomping at the bit to tell her story, Ford has yet to accept the Senate offer to testify.

Inetresting.
 

She's probably concerned about the implications of being put under oath.
 

Only a tiny fraction of Democrats engage in Ford's extra-curricular activities, despite the Democrat media's disproportionate coverage of them for propaganda purposes.

Bart, ActBlue is not a PAC. It provides a vehicle for Democrats to raise money online. The contributions go to candidates who use the service. It does request additional contributions for itself, but these are to finance the operation, not to spend on candidates.

The terms you use about the letter and the demonstration are unduly inflammatory. It was a "rant" that Trump is anti-science. It was a statement, a true one. And the separation policy, which is what the letter was about, deserved to be attacked by any decent human being.

And apparently you have no more to say about the mystery foreclosure case. Unsurprising.

Oh, and it is uncommonly rude and boorish to consistently refer to the Democratic Party as the Democrat Party. What are you trying to prove about yourself?
 

byomtov:

As an aside, the only reason CO does not classify ActBlue as a PAC under our laws is because their primary purpose is not to support CO candidates.

https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/ActBlueAO.pdf

As a further aside, I refused to refer to your political party as "democratic" after they openly ruled by decree with a pen and a phone.
 

Brett said... She's probably concerned about the implications of being put under oath.

I am sure her Democrat attorney has advised Ford, even if the US Attorney was willing to prosecute a witness claiming sexual assault, proving the perjury beyond a reasonable doubt without a confession or some evidence in addition to Kavanaugh's denial before a DC jury would be nearly impossible.

Nor is her university likely to make Ford pay any professional price for committing perjury or any other crime to stop the evil King Donald. Indeed, I am certain Ford's colleagues will unreservedly celebrate her "bravery."

However, if the GOP performs a competent cross examination, they can make her look like a partisan liar to millions of Americans. Does she care about her reputation outside of progressive quarters?
 

Our dynamic dyslexic duo Bert and Brat are feebly attempting to recover from the fact that Trump/Republicans caved, providing for the hearing on Monday. Apparently Trump/Republicans did not listen to our dinosaur duo in making this decision. The lemmings are frustrated. Perhaps they think Trump/Republicans will listen to them between now and Monday. The 12 Republican boys, excuse me, men, on the Senate Judiciary Committee can't assume that the tactics for Thomas' Committee hearings will apply in this age of #MeToo.

By the Bybee [expleives deleted, despite Gina], since Trump's takeover of the Republican Party, it may be more accurate to refer to it as the "Pubican [sic] Party.

By the Bybee II [expletives again deleted, despite Gina], an apt counter to SPAM's closing sentence at 2:10 PM is: "Does Judge K care about his reputation outside of the Pubican Party?"
 

Nothing to recover from: I may be of the opinion that the GOP should show a spine, but I'm not under the illusion they have one to show. They did about what I expected them to do.
 

Brett demonstrates his expertise with after-the-fact predictions. So Brett was feigning th at he was upset with reopening the Committee hearing?

Does Brett accept the new Publican [sic] Party designation? Access Hollywood deserves much of the credit.
 

Brett:

Susan Collins tweeted an interesting suggestion that the committee allow Kavanaugh's attorney to cross examine Ford and then Ford's attorney to cross examine Kavanaugh, with the senators following up.

I don't know if this was meant to scare Ford off, but I would take time off from my vacation over the next week to see that hearing.
 

Maine voters have been singing "Wake Up Little Suzy" in cautioning Sen. Collins on her vote on confirmation of Judge K. Does Collins' suggestion provide for objections by counsel for the person being "cross-examined" and for rulings on objections? Grassley, as Committee Chair is not that well versed in law. But I suspect that Committee rules may not accommodate this suggested procedure. It might of course "protect" the Senators on the Committee from the Anita Hill syndrome. I would expect a #MeToo reaction to this. It could be an in terrorem procedure intended to get the Committee's "Pubican" [sic] boys, I mean men, off the hook. Let's listen to another chorus of Maine voters singing "Wake Up Little SuzY."
 

By the Bybee [expletives deleted, despite Gina], from all the time SPAM spends trolling at this and other blogs, SPAM always seems to be on vacation, unless trolling is his real job.
 

"Judge not, lest Judge K be truly judged" seems to be Senator Grassley's position on no other witnesses than Judge K and Ford.
 

"I don't know if this was meant to scare Ford off, but I would take time off from my vacation over the next week to see that hearing."

Hasn't she already said that, if she deigns to show up, (A bit unclear about the meaning of a "subpoena", isn't she?) she won't be answering any questions from the Republican members of the committee? I expect that extends to Kavanaugh's attorney.
 

I refused to refer to your political party as "democratic" after they openly ruled by decree with a pen and a phone.

Laughable.
 

It seems to me that Ford holds all the cards for any hearing. Consider the possibilities:

1. She could file criminal charges in MD.
2. MD authorities could independently open an investigation.
3. Other witnesses to the party could come forward.
4. Witnesses to yet additional misconduct by Kavanaugh could come forward.

The Rs can't afford to confirm him without knowing what's out there.
 

Brett's non-responsivecomment on SPAM's quoted comment:

"Hasn't she already said that, if she deigns to show up, ...."

fits Brett's #MeToo image. Bully for you, Brett, about scaring women from testifying, so Trumpian.