It has been referenced various places that if they WANT to do so, the Republican controlled Senate Judiciary Committee can subpoena people. Senate Dems at the very least are on record supporting it.

The last sentence, without explanation, is hackish.

It has been spelled out why Feinstein acted as she did. Even if you disagree with her judgment, I have seen reference to various suggestions other insiders were upset how she handled things. So, even if she was wrong [and to me at worse there is reasonable debate over her handling], the "Senate Democrats" comment doesn't hold up.

But, you know, "both sides do it." Yeah yeah.


 

Most locations of Burger King open at 6 a.m., and begin serving breakfast at that time. If it's a 24-hour location
what time does burger king stop serving breakfast
 

Ford already made public her allegations in a detailed letter leaked to CNN and during a Washington Post interview, then proclaimed through her Democrat attorney making the rounds through the Democrat media that she wanted to personally tell that story to the world. No one is alleging Ford left any material facts out of her public statements.

The GOP did not call Ford and Kavanaugh to testify before the Judiciary Committee because they do not know her allegations, but rather to cross examine those allegations under oath and to give Kavenaugh a chance to respond. In short, the GOP is calling Ford and the Democrats' bluff.

Ford immediately went into hiding to avoid cross examination and the Democrats ran interference by demanding an FBI investigation first. As part of this effort, NPR called a former FBI investigator to confirm "FBI could do this sort of thing." The investigator confirmed the FBI could question her, but noted the Senate staff attorneys are perfectly qualified to do so during Monday's hearing. Ooops.

If Ford refuses to defend her increasingly obvious slander of Kavenaugh, why bother to subpoena her to testify? Hold the hearing on Monday, wait a half hour for Ford to show, then hold the committee confirmation vote.

For the sake of argument, let's say the GOP wanted to subpoena Ford to testify. How do they accomplish this? In order to enforce the subpoena, Congress would need personal service of a witness who is in hiding. If the GOP sent the Marshall's office to hunt Ford down, the Democrats would disingenuously howl that the GOP is persecuting a traumatized sexual assault victim. Indeed, the Democrats are already advancing this meme to cover for Ford refusing to appear voluntarily.

Time to end this corrupt charade. and publicly ask the question: Where does Judge Kavenaugh go to recover his reputation?
 

What Joe said about the last sentence.

The Senate Judiciary Committee is just about the last place one would suggest if the goal were "to find out the truth". Among other flaws, it's televised, so witnesses can't be sequestered; the questioning would be done by Senators, rather than by trained interrogators; the panel is partisan (both ways, but majority R); the Chairman has shown bias; the Rs are trying to limit the number of witnesses; and there's a completely unnecessary time deadline being imposed.

Anyone actually interested in the truth would support an investigation by the FBI or the MD authorities. It's not Dr. Ford or the Senate Dems who are opposing those.

 

I would add that hearings are at times off camera and means such as written interrogatories and pre-hearing interviews and such by staff can be helpful.
 

Mark:

Neither FBI or Maryland will conduct a criminal investigation without the complaining witness coming in and making a complaint. Ford has refused to do so for over thirty years. After all, making a false police report is a crime.

FBI has already completed its background check of Kavenaugh and, as noted above, will not ask any questions the Senate staff attorneys cannot have their Senators ask.

More importantly for Kavenaugh, because the evidence Ford provided would not provide probable cause for actual criminal charges and a trial, the committee hearing will be the only opportunity for the accused to confront his accuser and (through the Senate) to cross examine Ford's allegations under oath.

This is why Ford is in hiding.
 

It's fair to say those are possible, Joe. I haven't seen any evidence that Grassley intends any of them, however. And even if he did, I wouldn't consider them good substitutes for law enforcement investigators.
 

SPAM closes his 3:12 PM comment with: "This is why Ford is in hiding." For obviously cowardly adversarial, ideological reasons SPAM ignores death and other threats made against Ford. #MeToo movement in CO take note.

Regarding Gerard's comment on Sen. Feinstein, I'm in accord with Joe and Mark. Maybe the Senate and the House should promulgate rules requiring Congressmen to disclose letters from persons requesting nondisclosure when it pertains to a matter concerning matters before and/or involving Congress. Query: Could such rules changes pass?
 

Per page 11, issuing a subpoena requires the consent of the ranking minority member. IOW, no, the Republicans can't subpoena her if the Democrats won't agree to it. At least that's how I read it.
 

Here's a comment I made this morning before the Thursday liberals (some progressives) lunch:

***
Blogger Shag from Brookline said...
I watched much of the Senate Judiciary Committee hearings before Ford's complaint about Judge K. I do not recall if Georgetown Prep, the private hight school attended, was brought up by Judge K in his opening statement or in questioning. Assume Judge K's mom wass a Maryland judge at the time he attended the all boys private high school. I wonder if there was an awareness among his fellow students, particularly Mark Judge, tho this. I also wonder if at parties that included girls from area private schools that Judge K's mom was a MD judge. Was Ford aware at the time of her claim of alleged assault that Judge K's mom was a MD judge. Was this common knowledge among students from elite MD schools back then? Did Judge K board at the all boys private high school or did he commute?

Judge K in his opening statement led me to think that his references to DC and its diversity suggested he understood racial issues. Pre-Georgetown Prep did Judge K attend public or private schools whether in DC or MD?

Samantha Bee stung the Committee yesterday. Her "Full Frontal" included excerpts from a fairly recent talk by Judge K to the effect that what happens at Georgetown Prep stays at Georgetown Prep - perhaps for the same reason as Las Vegas? But what about off campus? Mark Judge may have some answers.

10:55 AM

***
 

Shag:

Has Ford’s attorney offered any evidence of death threats?

In any case, there are not many safer places for Ford than Capital Hill.
 

SPAM is not aware that the threats against Ford have been reported to authorities, federal and state? [Mother Tucker Carlson as a Trump acolyte at Fox blames Democrats for these threats.] Will the Committee provide for her protection on her trip from CA to the Senate hearing? Will the threats be investigated by federal and state authorities?
 

Shag:

Evidence. Team Ford is good at making allegations. Evidence.
 

Judge K's opening statement was inspiring here:

"I am here today with another of my judicial heroes … my mom. Fifty years ago this week, in September 1968, my mom was 26 and I was 3. That week, my mom started as a public-school teacher at McKinley Tech High School here in Washington, D.C. 1968 was a difficult time for race relations in our city and our country. McKinley Tech had an almost entirely African-American student body. It was east of the park. I vividly remember days as a young boy sitting in the back of my mom’s classroom as she taught American history to a class of African-American teenagers. Her students were born before Brown versus Board of Education or Bolling versus Sharpe. By her example, my mom taught me the importance of equality for all Americans — equal rights, equal dignity, and equal justice under law."

I wonder how this compares with his pre-college schooling experience in MD. Equality for all Americans -- equal rights, equal dignity, and equal justice under law that he was taught as a young boy hasn't been achieved as yet. What can we expect from a Justice K?

 

After the FBI investigation ploy went nowhere, Ford’s attorneys (they appear to be multiplying) claim Ford is willing to appear next week after Monday if her safety is assured and the hearing is “fair” Sounds like another delay ploy.

Set the hearing for first thing Tuesday morning.
 

Sen. Collins reported threats from Maine constituents follow recent statement by her of the Judge K nomination process. Where's the evidence, Sen. "wake Up Little Suzy" Collins, SPAM personally needs evidence of threats.
 

Collins has not accused another of a crime and then claims she cannot come to Capital Hill because of death threats.
 

Collins can easily obtain government protection for the threats against her. After all, "Was Up Little Suzy" is a Pubican [sic].
 

Are you guys like trapped in some circle of hell where you trade the same partisan charges and countercharges over and over again? You realize you have been doing this for over a decade, right?

Obviously, few, if any, members of the Senate Judiciary Committee want to find out "the truth" if the truth turns out to be something that is going to make their side look bad.

FYI, the committee cannot issue a subpoena without the agreement of the chair and ranking member, or else there has to be a committee meeting to vote to authorize the subpoena. So there is no practical way that she could be subpoenaed for Monday. And clearly the Republicans would not subpoena her unilaterally (even if they wanted the truth) because they would be accused of mistreating the victim of a sex crime. Which would be a ridiculous accusation, but one that would be treated as self-evident truth by most of the media.

That is your dose of "truth" for today.
 

"then proclaimed through her Democrat attorney making the rounds through the Democrat media that she wanted to personally tell that story to the world"

Citation?

"The GOP did not call Ford and Kavanaugh to testify before the Judiciary Committee because they do not know her allegations, but rather to..."

You have no idea why the GOP did what they did.

"Ford immediately went into hiding to avoid cross examination "

You have no idea why Ford 'went into hiding.'

"increasingly obvious slander of Kavenaugh"

It's 'increasingly obvious' but for heavens sake let's not take a closer look at, not one minute of a look! That seems on the up and up!


"Neither FBI or Maryland will conduct a criminal investigation without the complaining witness coming in and making a complaint."

It's this kind of nonsense (among much other things) that makes me think Bart's internet backstory is just that. Of course law enforcement conducts criminal investigations even when the alleged victim doesn't come forth and make a complaint, it's not uncommon at all, especially for certain crimes (domestic violence for example). Heck, it's not uncommon for an investigation, and actual conviction, to occur when alleged victims don't cooperate with the authorities at all.



 

If you were part of a board interviewing an applicant for a very important position with your organization and a woman who went to school with the applicant contacted you saying he had attacked her in school, what would any sane board member do? Of course you'd take a second to look into it. The 'tell' here is the GOP doesn't even want to wait a relatively tiny amount of time to look into the allegations more. They just want their Justice confirmed asap.
 

This comment has been removed by the author.
 

There is the usual dance here, including some people doing their "both sides do it" above the fray routine. If you look closer, these people aren't really above the fray and they get about as touchy as others when pushed on it. Truth.

As to practicalities, Monday is impractical, but in large part because of failure of agreement arising from one side wanting to rush it instead of having a careful process for partisan reasons. As has been noted in respect to rushing the hearings, even though this nomination had more than usual paper etc. to handle, the net result here very well can disadvantage the nominee.
 

"If you were part of a board interviewing an applicant for a very important position with your organization and a woman who went to school with the applicant contacted you saying he had attacked her in school, what would any sane board member do? Of course you'd take a second to look into it."

Indeed I would. I'd contact the complainant and ask her to explain the nature of the allegations, etc.

Suppose the complainant refused, insisted it was unsafe for her to explain things to us, and insisted we, rather than she, contact the police about the matter. What would any sane board member think? At a minimum, your belief in the merit of these allegations would be shaken.
 

Mr. W:

Have you been living under a rock?

Attorney claim to CNN that Ford willing to testify: https://www.cnn.com/2018/09/17/politics/debra-katz-christine-blasey-ford-brett-kavanaugh/

Do you really think the GOP intends to do anything other than cross examine Ford at such a hearing? They will not be running interference for her like the Democrats.

As for Ford’s intent in going into hiding, there is no report her phone or email accounts are public or that she has a social media account on which death threats were made. Even if some yahoo managed to make a death threat to her phone or email, the Democrat establishment could have easily obtained police protection for her. Instead, Ford disappears and her attorney did not respond to communications for days.

Ford is the only claimed witness to this alleged crime. The police are not (and have not) started an investigation when she refuses to give them a statement.

https://bethesdamagazine.com/bethesda-beat/police-fire/county-police-wont-investigate-allegations-against-kavanaugh-unless-complaint-is-filed/
 

Indeed I would. I'd contact the complainant and ask her to explain the nature of the allegations, etc.

Suppose the complainant refused, insisted it was unsafe for her to explain things to us, and insisted we, rather than she, contact the police about the matter. What would any sane board member think? At a minimum, your belief in the merit of these allegations would be shaken.

Suppose you preceded your conversation with public statements that you were going to listen to her, but had already decided to go ahead and hire the applicant in question, and wanted to get the conversation over quickly. Suppose some of your allies on the board had made public announcements that they thought the allegations false. Suppose the complainant was shaken by the response to her allegations and wanted some time to sort things through. Suppose you had at your disposal investigative resources and powers far better suited to the job than she did. Suppose you said you were uninterested in hearing from anyone else who might contribute to the case.

What would any sane person think about your interest in getting at the truth, as opposed to just hurrying the hiring process along?
 

mls, with all due respect, your " "Which would be a ridiculous accusation, ... " is your opinion, not "truth."

If the Chair and Ranking Member cannot agree on a subpoena and a Committee vote is sought, I assume a majority vote would determine whether a subpoena would issue such that all of the Republicans by voting "no" could thwart its issuance.
 

1. She needs to testify. An FBI investigation is ideal, but if the Republicans won't agree to one, she needs to make a deal with Grassley and testify.

2. There's absolutely no basis to call her allegation a "slander", as Bart does.

3. After she testifies, either people will believe her or not. If people believe her the GOP will have to withdraw the nomination.
 

What's the FBI supposed to investigate? Do you suppose there are records of Kavanaugh's location every hour over a 2-3 year period 35 years ago? There's nothing to investigate, closed room, the only witnesses she claims deny it, and she says she didn't tell anybody for 30 years.

He's already been through 6 FBI background checks, most recently for this nomination. All they could do is repeat that, which would be absurd this soon after, they'd never find anything new.

The demand for an FBI investigation is transparently a delaying tactic, to push his confirmation out late enough that he can't serve in this term of the Supreme court, and ideally never gets confirmed because the Democrats take the Senate.
 

Dilan:

Check my post in the last open thread breaking down the case. I would love to have a couple hours to cross examine Ford.
 

Here's a link to an article at Huff Post:

https://www.huffingtonpost.com/entry/georgetown-prep-student-party-culture-kavanaugh_us_5ba28cf7e4b07c23ef37a06c

on the culture at Georgetown Prep based upon recollections of a student who overlapped with Judge K's days there. It's not a quick read. Judge for yourselves whether Mark Judge's "Wasted" is a similar reflection. The article is very disturbing as it brings back memories of the drug overdose demise of David Kennedy.
 

Bart:

You have no idea if her story would stand up under cross-examination.

Remember (and I shouldn't have to remind you of this given your job), it doesn't matter if the defense attorney doesn't believe the complainant, only if the jury doesn't believe her.
 

SPAM has honed his cross-skills in that rural police court in CO defending alleged drunks for almost a couple of decades. Also he was for a short time a misdemeanor prosecutor in FL. How can one challenge his self-proclaimed chops. Heck, if it works in the sticks, he's got the chops - for Egg Foo Yung - but not in the Committee scenario. Lyin' Ted is on the Committee to demonstrate his chops after crashing the Cruz Canadacy in the 2016 Republican campaign. Lyin' Ted needs help in his reelection campaign from Trump who branded "Lyin' Ted" and insulted Lyin' Ted's spouse's appearance. But I digress. Maybe SPAM will get a lot of "likes" for his claims of cross-skills, or more likely "LOLs."

As to what the FBI can do, perhaps it can investigate the culture at Georgetown Prep when Judge K was a student. The Huff Post article could be a starting point, including Mark Judge.
 

What's the FBI supposed to investigate?

Her claim? I'm not as sure as you are that the FBI can't get some useful information. Of course, I would bow to your lengthy experience as an investigator, if it existed.
 

"What's the FBI supposed to investigate?"

Did any of the participants make contemporaneous statements to witness which contradict their denials now? Whose house was it? Etc. There are plenty of questions to be asked.

And I think having criminal investigators do the questioning would have a salutary effect on anyone who might be committing perjury. And as I pointed out above, it's Dr. Ford who's asking for that and the others who are resisting.

It's pointless to limit the witnesses at this point. The Rs want to turn this into a he said/she said contest, declare victory and go home. That may happen in the end anyway, but it shouldn't be that way until there's a legitimate -- that is, not Judiciary Committee -- investigation.

 

At TPM:

https://talkingpointsmemo.com/edblog/this-is-nuts-3

Josh Marshall has posted an item that references Ed Whalen's twitter account theory that suggests that based upon Whalen's "evidence" Ford may have indeed been assaulted, but not by Judge K. A link to the twitter account is provided that includes comments by others critical of Whalen. This thread is in for a long night before moderation sets in. But I'm going to bed.
 

PS: Maybe the FBI could follow Whalen's theory. Contrary to Judge K, what happens at Georgetown Prep may not stay in Georgetown Pres. (I assume readers are aware of Whalen's connections with the late Justice Scalia.) Now to bed. I hope to be back tomorrow.
 

Whelan's tweet creates a pretty strong defamation suit by his "suspect".
 

I think the FBI demand is unrealistic. The reality is the Republicans hold the cards on that- no swing voter is going to be persuaded if she doesn't testify at the committee.

And like it or not, the Senate, not the FBI, has the constitutional responsibility to investigate this.

The real problem here is the Senate isn't going to want to do a real investigation. They want to just call the 2 witnesses. But there may be other relevant people to talk to.
 

The White House also has a constitutional responsibility and can authorize a FBI investigation. The real problem there is expecting responsibility from that source is tough. But, the Browns won. So, anything goes now, I guess.
 

Shannon Bream tweets: “SOURCES: Ford team wants NO questions from lawyers, only Qs from Committee members, #Kavanaugh cannot be in the room, Kavanaugh must testify FIRST - more to come ...”

Team Ford must be terrified she will perjure herself. In what justice system does the accused testify first?
 

Joe:

NOTHING in the Constitution calls for any executive branch involvement in the confirmation process. Period. I don't doubt the FBI could be called to investigate, but it isn't a requirement and the Senate is the body that runs the advice and consent process.

It's just a losing argument. In the end, she is going to have to testify, even if an FBI investigation would be better.
 

Bart:

It's pretty clear that's a negotiating position. They will come to some sort of agreement and the testimony will happen. Stop making inferences. EVERY lawyer negotiates the best scenario for testimony.
 

Also, Whelan's shenanigans make me wonder if the nomination might even get pulled. For the first time, I am starting to think he may not be confirmed.
 

NOTHING in the Constitution calls for any executive branch involvement in the confirmation process.

"he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court"

The executive has a constitutional role along with the Senate to properly vet nominees, which is why the there is a background check by the FBI in general. This role is ongoing and executives regularly pull nominees when further investigation, with or without involving federal official investigations, deem it proper.

The "by and with" language in particular suggests a joint effort. At the very least, that has been practice -- the executive has long had a constitutional duty here to vet and assist the vetting. This would include offering FBI assistance. Any failure of argument here is because both the White House and Republican controlled Senate is failing on their duties. Pressure might help in that department.

There also would be an executive duty to investigate any ongoing possible federal crimes (take care duty) though that might not involve investigating the original events. As to Whelan's shenanigans, which very well might not be his alone (news reports suggest involvement with one or more senators and maybe even Kavanaugh himself), that might pressure Republicans to give in more too.
 

Joe:

You are making up the law. It's beneath you.

1. There is NO requirement that the executive "vet" a nominee. None at all. The executive can pick anyone eligible, with or without "vetting".

2. The Senate DOES have the right, but not the obligation, to "vet". A Senate majority can instantly confirm with a voice vote.

3. If the Senate wishes to, it can investigate as part of advice and consent. As part of that, the Senate can hold hearings. It can also choose to involve the FBI, or to not involve the FBI. The Senate gets to choose. That means, right now, the Republican majority.

4. As a CONSTITUTIONAL matter, that's it. Anything you say inconsistent with that is you making up your own law.

5. For many years, confirmations happened with no hearings and limited investigations. Indeed, confirmations happened for over a century without even the existence of the FBI. So the idea, which you just made up and which isn't supported by one single case, that "by and with" requires that the FBI must be involved even if the Senate majority doesn't want it, is complete hackery.

6. None of this matters anyway. This is a political issue. Nobody outside party activists cares about the FBI issue. The public wants to see Kavanaugh and his accuser testify. If the nomination is not pulled, that will happen, and your made up constitutional rule of FBI involvement will be ignored.
 

"The real problem here is the Senate isn't going to want to do a real investigation."

No, the real problem here is that the accusation is 35 years old and insanely vague, to the point of being basically unfalsifiable. Nobody who lived within a hundred miles of her school roughly 35 years ago has an alibi, she could have put any of thousands of people in the same position if she'd felt like it.

No system, justice or otherwise, should act on such an evidence free allegation.

And Feinstein sat on this for MONTHS. When it could have been brought up in closed session, or Kavanaugh could have been questioned about it. She didn't pull it out until all other ploys had failed, and she just wanted something, anything, to fling at the wall in the hope it would stick.

Only this dry as the tomb turd isn't sticking to anything.

This isn't about learning something about the nominee. It's about stopping him from being confirmed by any means fair or foul.
 

What isn't 35 years old is Judge K's current Egypt defense, DENIAL. Back 35 years ago in the elite private school culture in MD 17 year old Judge K presumably had at his back a state judge. Currently, another Judge, i.e., Mark, a potential witness to the alleged event, has Judge K's back by not being a current witness before the Committee thanks to it Chair and other Pubican [sic] members.

Brett'assertion:

"No system, justice or otherwise, should act on such an evidence free allegation."

neglects that the Committee seems to be thwarting a presentation of evidence by way of all potential witnesses and the aid of a professional investigation in order to address Judge K's allegation of his Egypt defense, DENIA, aka the Mark Judge cover-up.

 

Again, he's BEEN professionally investigated, six times now, and the allegation is so vague as to be unfalsifiable.

You can't take this sort of thing seriously unless the accuser presents evidence up front, or anybody could accuse anybody of anything.
 

Brett continues to distrust the legal system obviously based upon his personal experiences that one can ascertain by Googling his comments at this and other blogs. A more open mind might check out this OpEd in the NYTimes:

"Why We Need an F.B.I. Investigation - A hearing without evidence would be little more than theater." By Nancy Gertner, a retired federal judge. Sept. 20, 2018

She describes the FBI procedure she went through when nominated as a judge for the federal court in Boston.

Let's focus on the political aspects, going back to the Clarence Thomas hearings some 27 years ago when Anita Hill came forward with claims of sexual harassment that triggered further FBI investigation. Keep in mind that the claims were sexual harassment, not physical assault. Additional witnesses beyond Hill were not called (for which then Committee Chair Joe Biden later apologized). Recall the political backlash that followed. Since then there has been the #MeToo movement exposing men with power, political, financial, celebrity, who engaged in sexual abuses of various sorts. With Dr. Ford the claim was not words but physical assault. What political repercussions may result if the Committee is not fair with Dr. Ford, but is "fowl" [sic], aka Chickenshit ideological in support of Trump who has been accused of sexual assaults by about a dozen women? As Charles Blow of the NYTimes recently pointed out if Judge K is confirmed then one-third of SCOTUS' male Justices would have clouds of sexual harassment/assault hanging over them. Keep in mind that over 50 % of voters are women, who may also be reminded of how ratification of the ERA had been thwarted pre-#MeToo. Rumor has it that Committee member Sen. Lyin' Ted Cruz is worried about reelection, calling for Trump's support, a man who attacked the physical appearance of Lyin' Ted's spouse during the 2016 Republican campaign.


 

Here's another link to Huff Post:

https://www.huffingtonpost.com/entry/kavanaugh-fraternity-womens-underwear_us_5ba429aee4b0375f8f9b7ba9

this time on Judge K's days at Yale regarding a frat he was a member of and a secret Yale society he belonged to. Was this an extension of the Georgetown Prep culture during Judge K's private elite high school days?
 

Over at TPM at this link:

https://talkingpointsmemo.com/news/whelan-apologizes-for-insinuating-that-kavanaugh-classmate-attacked-blasey-ford

Ed Whalen apologizes for "outing" Judge K's private elite high school classmate as the doer. Perhaps Whalen took note of Dilan's comment of possible defamation.
 

"he's BEEN professionally investigated, six times now"

One for each drug test Lance Armstrong passed.
 

""Why We Need an F.B.I. Investigation - A hearing without evidence would be little more than theater.""

The reason I object to yet another FBI investigation is that there is no realistic prospect that it would turn up more evidence. So, she describes the investigation she underwent. He's already been similarly investigated 6 times, and likely more rigorously than Gertner, as the last investigation was for the Supreme court. What's she trying to suggest, that he hasn't already been through it?

If Ford had just provided even a bit of evidence implicating him, like those therapists' notes having named him back in 2012, an investigation might be justified. But I just don't see enough here to merit it. Accusers have a minimum increment of evidence they have to bring to the table, to deserve being listened to, especially when they're alleging something happened long, long ago. Otherwise anybody could accuse anyone else of just about anything, on their bare word, and force action.

Ford hasn't gotten anywhere near that threshold.
 

Trey Gowdy on Fox last night: “I don’t know how an FBI investigation would help — unless they’re able to locate witnesses that can either corroborate or contradict.”

Well, yes, though he might have added that good investigators could test the stories of the known witnesses.

It seems pretty obvious that no previous investigation is relevant here because previous investigators lacked the evidence provided by Dr. Ford. Nor does Brett (or anyone else) know whether Kavanaugh's high school classmates, much less those at other schools, were even contacted in those previous investigations.
 

You are making up the law. It's beneath you.

No. You disagree with my argument. I might even be wrong. But, I'm not -- as the tired old trope has it -- acting in bad faith. Just making things up. It's so hard, apparently, for some to simply accept people disagree with them honestly. It's so obvious!

But, after years, I realize you, Brett and even Mark Field a few times (e.g., on Ted Cruz's natural born citizen status) are honestly wrong though it seems fairly obvious to me. It might be clear that certain people are unable to reason things out enough to make it worth engaging with them. Sometimes, though less often than it seems, they are simply trolling.

Anyway, to repeat the argument: "NOTHING in the Constitution calls for any executive branch involvement in the confirmation process."

I will respond separately.
 

I guess I should be flattered by the "even". :)

It seems to me that the faithful execution clause is pretty relevant here. If Dr. Ford is telling the truth, Kavanaugh is lying. That's disqualifying even if we put aside the original crime for the sake of argument.
 

Joe:

Without caselaw and without consistent historical practice in the first 100 years, your "interpretation" is made up.

Here's a simple example. Let's say Trump appoints someone eligible for a position requiring Senate confirmation without an investigation, and the Senate immediately confirms her.

Can the Democrats sue and invalidate the appointment? Didn't think so.

There's no rule whatsoever.

And again I will emphasize, your "rule" will be ignored this next week unless the nominee is withdrawn (and even though Shag and Mark are right that an FBI investigation is a good idea on the merits).

And there will be no suit, because there will be no constitutional violation. The Constitution doesn't enact all your policy preferences.
 

The faithful execution ("Take Care") clause is meaningless. It provides no standards for evaluating executive action. Congress, of course, can impeach for any reason it feels like or no reason at all, as Gerald Ford correctly observed.
 

I think practice does back me up.

The matter is basically a question of proper application of power that will be tested as a political question. This doesn't change the constitutional questions of power, which is to me is the basic point of the dispute.

Raw power repeatedly pushes past constitutional duty. The "meaningless" nature argument moves the goalposts. The concern is executive involvement. The fact that what exactly is required needs to be worked out in political practice is noted.

Anyway, lots of constitutional provisions have no "standards." They are worked out over the years by the "We the People" and our institutions.
 

[Originally quoted Dilan's comments, but it was too many characters; I will leave my answers tied to each numbered point.]

1. Practice, a basic way to determine what is required, demonstrates an understanding of a duty of the executive department to show some due care when nominating judges and thus the practice of FBI vetting is in place. An overriding understanding of some basic due care in the application of the executive's duties is a reasonable constitutional argument and a total fulfillment of the constitutional oath. At the very least, that is how it has been applied. There has been a basic understanding that picking a judge's name out of a phonebook is not "something" correctly done as a constitutional matter. It "calls" for something else.


2. "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court"

I would phrase it as power. The language suggests an obligation as well as a power. He "shall" etc. An obligation that is joint. I question if a mere instant voice vote is truly "advice and consent." Senators too have to take a constitutional oath/affirmation that has some implied duties.

But, again, there is some room for debate and all that needs to be shown is some "call for involvement." "By and with." This is basic to my understanding that the executive has a role in the confirmation process.


3. The executive "by and with" shall appoint & thus there is a "call" for executive involvement as well. Obviously, in both cases irresponsibile people control things, so we are in a bad way. To toss it in again, there is also ongoing concerns about possible laws being broken etc. that arise during the process and the Constitution "calls" for some executive involvement there too.

4. If you grant premises, you get to a conclusion faster.

5. Limited investigation. Yes. As noted, I think some degree of vetting is a constitutional duty. To clarify my assumed ad libbing, the FBI is merely a means. Something akin to the exact phrasing of a Miranda warning. The same with hearings. The Senate can "advise and consent" in various ways. But, merely flipping a coin or the like would be a failure of any reasonable application of that duty. Shall.

6. It matters because a claim was made and the claim affects the constitutional workings going on. Things that are "political issues" still use constitutional principles. People outside party activists care. They care in various ways, some do thinking state or federal investigation above a he said/she said hearing would be important. The fact things I think are true or should happen will be ignored is duly noted.

Anwyay, the executive does have a constitutional role in the confirmation process.
 

"The matter is basically a question of proper application of power that will be tested as a political question."

That's how I understood your point. Nobody thinks there's a judicially enforceable issue here.
 

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Mark: It seems pretty obvious that no previous investigation is relevant here because previous investigators lacked the evidence provided by Dr. Ford.

The only useful investigation the FBI could perform is to cross examine Ford for a couple hours the day before the hearing. Given that lying to the FBI is a felony and Team Ford is allegedly refusing to answer committee lawyer questions, why on Earth would Ford agree to an FBI interview?

Ford’s current story gives the FBI almost nothing to ask Kavenaugh. Did you drunkenly paw Ford at an undisclosed time and place? Absolutely not. I don’t even know the woman. Thank you, sir, that will be all.

Sorry, this is no longer the Obama FBI, which would have used such an unfounded allegation to go on a fishing expedition for dirt against a political opponent.
 

Mark Graber's post at this Blog today "Kavanaugh and Underage Drinking" is most insightful. I was not aware of Judge K's romanticizing in speeches his youthful drinking referenced in the 4th paragraph of Mark Graber's post. I assume that evidence of such speeches is available.

I attended an all boys public high school in Boston (English High, Class of 1947). There were a number of all boys central high schools in Boston. Boston English had about 3,000 students at the time. Many of us walked or took public transportation to and from school. I did not drink at the time. I knew very few classmates who did drink and even fewer who would get drunk. Back in my Roxbury District of Boston neighborhood, I had seen older fellows drink in public and getting drunk. That was a different time as we had gone through the Great Depression and eventually WW II.

Back then I had no knowledge of drinking behavior at private schools, as few in my circles attended such elite private schools. Later on in college and law school i learned of such problems from fellow students who had attended one of the several elite private high schools in the Boston area. Some of these students would romanticize their youthful drinking habits from time to time. And as a practicing lawyer (1954) in MA i had occasion to meet other lawyers and professionals who romanticized their elite private school drinking days. There was of course the movie "Animal House" with its drunken frat students presented as a comedy but had sad aspects.

I understand Mark Graber is from the MD area and perhaps he has knowledge personally of Judge K's romanticizing, that such was public knowledge to a certain extent. I wonder if such may have surfaced in the course of 6 FBI investigations of Judge K, and if so, the treatment thereof by the Senate Judiciary Committee for nomination as a Circuit Court Judge as well as his current nomination. Perhaps those Judge K speeches were delivered after his earlier confirmation?

I wonder if those in the Trump Administration assisting Judge K in the confirmation process were aware of the youthful drinking? If so, why wasn't it addressed openly to pre-empt any criticism of Judge K? Judge K's opening statement to the Committee was structured as that of a perfect human. But few of us are perfect. If in that opening statement Judge K had disclosed drinking problems when he was a teenager and that he had learned lessons of better behavior since, with his college and law school days and lawyering days and serving in the George W. Bush Administration, and then serving as a Judge in the Second Circuit being exemplary, perhaps he would have less of a confirmation problem, including with the public's perception. Recall that George W. Bush opened up about his past drinking before running for President. But perhaps those advising Judge K felt that would not be necessary. Was the confirmation process mishandled by Judge K and his confirmation enablers? We have learned much of the "deny, deny, deny" mantra of Trump who nominated Judge K.

 

By seeking to disqualify Kavenaugh for his teen drinking nearly forty years ago, Graber and others in the Democrat media are essentially conceding Ford’s allegations are non-credible.
 

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The original author here had a series of posts, of which I disagree with in certain respects, on the possible lingering status of the ratification of the ERA. The matter is also addressed here:

https://verdict.justia.com/2018/09/21/what-legal-effect-if-any-can-recent-state-ratifications-including-illinoiss-earlier-this-summer-of-the-equal-rights-amendment-have
 

Thanks, Mark. I will rest on my comments above.

I too think the post Shag references was interesting. It's unfortunate no comments is allowed in those posts. Prof. Kate Shaw also had an interesting op-ed:

https://www.nytimes.com/2018/09/20/opinion/kavanaugh-blasey-allegation-disqualify.html

The various factors used in judging here, part of the "constitutional conversation" if one likes, is rather interesting as well as an important part of our system.
 

SPAM's conclusion at 12:51 PM demonstrates his skills at plea deals in his local police court but not of much else in his representation of alleged drunks. It was presumably as an adult, not a 17 year old teenager that Judge K allegedly engaged in his romanization of teenage drinking in speeches. It was as an adult when Judge K stated that what happens at Georgetown Prep stays in Georgetown Prep. It was after Dr. Ford's claim a week ago that Judge K made a firm denial of the claim. All of this goes well beyond Judge K's elite private high school days. Much of this makes Dr. Ford's claim credible.

Mark Graber, to his credit, offers more reasons that Judge K should not be confirmed beyond Judge K's teenage drinking.
 

I am glad Graber posted that and hate underage drinking (indeed I am not a gigantic fan of many forms of overage drinking- all but the most moderate consumption of alcohol is dangerous and plays a role in everything from sexual assault to domestic violence to highway deaths).

And lots of liberals, especially those who came from higher social classes, have the same cavalier attitude Kavanaugh does about it. They had a great time getting drunk when they are young, and don't want to hear about how bad the stuff is.
 

Bart:

The FBI could do a lot. They could question Judge. They could question Dr. Blasey's family and therapist. They could do a real version of what Whelan tried to do, going around the neighborhood and seeing if the story checks out geographically. They could cross examine Kavanaugh, of course. They could investigate if Kavanaugh had any role in Whelan's misadventure.

Now, they won't. Your side is going to win this, and despite what Joe says, there will not be a constitutional violation when that happens.

But an FBI investigation would be superior as a fact-finding process.
 

Joe:

Two points.

1. I really don't give a crap if unenforceable parts of the Constitution are supposedly violated. Not one bit.

The Constitution is not a religious text. It is positive law, and positive law only matters when it can be enforced.

Lots of wars are unconstitutional too you know. But they can't be stopped. Which is why we don't care anymore that Congress doesn't declare war. And unlike your fanciful arguments, that is required by the plain language. Doesn't matter because it isn't enforceable.

2. At best, all your argument would mean is the executive is required to do some vetting. But they did that! If the vetting is inadequate, the obvious constitutional remedy is the Senate can refuse to consent, which might still happen. So even under your strained interpretation, there's zero constitutional issues here.
 

Shag:

One of the requirements of a criminal defense attorney, which apparently is not required of tax attorneys or law professors, is a knowledge of basic rules of evidence.

Evidence that Kavenaugh drank as a teen is not relevant because it does not make more likely the fact of the assault. (Rule 401).

Even if a judge found the evidence somewhat relevant, the relevance would be outweighed by its prejudicial effect (Rule 403).

If course, basic rules of evidence don’t apply to progressive politics of personal destruction.
 

Dilan: The FBI could do alot.

The only thing the FBI coud do of use is cross examine Ford. However, as the FBI itself noted, the Senate staff attorneys are more than capable of doing this in public hearing under oath.

I already summed up the only question they could ask Kavenaugh, the answer to which he has already provided the public.

Ford claims she did not tell anyone about the alleged act apart from her therapist and husband in 2012, so questioning the family would be useless, except to discredit Ford’s claim.

Ford claims she has told all she recalls, which means interviewing the therapist and husband should not reveal anything new. If it did, this would discredit Ford’s claims concerning her lack of memory.

Ford claims she does not recall where and when the alleged act took place and no one apart from Kavenaugh and his wingman were present. What precisely will the FBI ask when it cold canvasses to entire town?

You will note that the Democrats (including Ford and her attorneys) are not attempting any of this on their own.

The bottom line is a GOP senate staff attiorney can dispose of this claim in a couple hours of cross examining Ford and needs no assiatance from the FBI.
 

Bart: "Ford already made public her allegations in a detailed letter leaked to CNN and during a Washington Post interview, then proclaimed through her Democrat attorney making the rounds through the Democrat media that she wanted to personally tell that story to the world. "

Me: Citation

Bart: "Have you been living under a rock?

Attorney claim to CNN that Ford willing to testify"

As I see, per the story you link to, it says that this switch was a "major development from a woman previously reluctant to face the brunt of public scrutiny." Your comment strongly implied a continuous desire to go public, but that has certainly not been demonstrated. She initially used an anonymous tip line and asked to be confidential. One can see now why she did...


 

"I'd contact the complainant and ask her to explain the nature of the allegations, etc."

This is entirely rational, but it's not rational if that's *all you would do.* You wouldn't, for example, ask the applicant about this charge? You wouldn't ask anyone that you easily could that might have knowledge of it? You'd only ask the accuser? That hardly seems diligent to me. In fact, if you did that and hired the applicant and then they assaulted someone on site at the workplace I'd think you might have a negligent hiring suit against you.


 

Mr. W:

According to the Sunday WP article, Ford obained Democrat attorneys, an alleged lie detectors test and her therapist notes just after communicating with both her Democrat representative and senators and the Democrat Washington Post. These are not the actions of a woman seeking to avoid publicity. This is one of multiple contradictions in Ford’s claims about which Senate can and should cross examine her.
 

" he's BEEN professionally investigated, six times now"

Background checks like the FBI are general ones, they wouldn't have come across this. It's not uncommon in sexual assaults that the woman victim not tell anyone about it for years, even decades. Researchers have explored the mechanism behind that.

So, here's what we have: a woman who has a professional career and doesn't seem to be psychotic, who it can be confirmed traveled in the circles of K at the time of the alleged assault, who alleges a drunken assault by K (who has said he had youthful bouts of drunkneness) and someone who it can be confirmed was a 'running buddy' of K (and who has written extensively on his black-out-drunk history). She appears to have shared this story with her therapist and husband half a decade before K became a household name.

Is this enough to conclude that K did the assault? I would say no. I know many leftist partisans who have concluded based on this that K is clearly guilty and unfit. But that's partisanship speaking.

However, is this enough to look further into this? Of course it is. The only people who think otherwise are proven partisan hacks on the other side.
 

"These are not the actions of a woman seeking to avoid publicity."

You have a history of coming to these kind of mind-reading conclusions and a history of doing so with a very limited ability to think or see how people other than yourself might, can and do act.

It makes total sense for a person to hold in their heads both 1. I can't let this man who attacked me attain this public promotion, I must warn the world of what he did and 2. I don't want to be the focus of attack that women who accuse powerful men of abuse have traditionally been the focus of.

So, she sends a letter to her representative asking for confidentiality. She uses a WP anonymous tip line. She asks the Senator for confidentiality. These are all facts on the record, what you are supposing against them are inferences based on mind-reading and your usual paranoid conspiracy mindset.

Of course someone who wanted to remain confidential but who had and proferred this information would get an attorney, only a fool would not (she was right not to trust Feinstein, wasn't she?). It's quite natural her attorney would tell her to take steps to shore up her credibility if attacked. This is all quite compatible with a woman who would have truly liked it if she had never been publicly identified.
 

What a shame that such an endowed defense attorney with great cross-skills and knowledge of rules of evidence in legal proceedings, even though self-proclaimed by SPAM, are limited to his CO police court practice, where such skills may be seldom utilized in representing alleged drunks in economic plea deals that result because of short money for fees for full trials. (Of course those plea deals provide SPAM with plenty of time to troll this and other blogs where he gets his "rocks off" challenging law profs.)

But the proceedings before the Senate Judiciary Committee are not governed by the rules and procedures of courts of law. SPAM knows that but SPAM needs to be self-promotional, which is unusual for someone middle-aged.
 

"Otherwise anybody could accuse anyone else of just about anything, on their bare word, and force action."

As long as the 'action' is simply a thorough and careful investigation, what's the problem?

I mean, yes allegations without corroborating evidence are not so impressive. Yes, allegations about things from years ago are also not.

But we also know, as a matter of FACT, that sometimes terrible crimes are committed when all the authorities might start with is just that scenario. It's happened.

So, what's the general rule you propose? That we ignore, not even *investigate* such allegations? Since we know, as a matter of FACT that this can happen, you're just out of hand dooming the victims to no chance at justice?

Of course the subject of the investigation should be protected. It's fascinating to see movement conservatives suddenly discover the rights of the accused, suddenly sounding like ACLU members. Welcome aboard, finally!

But, I think even the ACLU member shouldn't object to a non-heavy handed investigation.
 

"K is clearly guilty and unfit"

I don't think "clearly guilty" is required to determine he should not be confirmed. See, e.g., Prof. Kate Shaw's NYT op-ed.

It's duly noted that I find him unfit for a range of reasons, not based on this incident alone, including his response (see, e.g., the post Shag referenced).

But, even if things were in the balance a "clearly guilty" standard is not the one I'd use here. I do personally think it reasonable to "believe her" as a type of default, and one need not be a leftist to "believe" objectively reasonable accusers in these situations, though that is not quite the same as saying he is "clearly guilty."
 

Mr. W:

If all Ford did was write a letter to Feinstein asking for her identity to remain confidential, then her claim to desire confidentiality might hold some water. A California professor hiring a high powered DC Democrat attorney at the same time and then making preparations to go public weeks beforehand destroys that claim and most of her credibility.
 

"a knowledge of basic rules of evidence."

1. This is not a court of criminal law. This is more akin to a job interview.

2. You seem to not understand what you cite. How does the fact that a person had bouts of drunkenness (which people often do impulsive, forgotten things like sexual assault during) *not* make an allegation of an assault during a bout of drunkenness more or less probable than it would be without the evidence?

If there were no evidence that K ever drank to excess during the time I would say that would be a huge score in his favor, making it far less probable that an allegation of an assault during a drunken bout occurred. And vice-versa, of course.
 

"Ford claims she did not tell anyone about the alleged act apart from her therapist and husband in 2012, so questioning the family would be useless, except to discredit Ford’s claim.

Ford claims she has told all she recalls, which means interviewing the therapist and husband should not reveal anything new. If it did, this would discredit Ford’s claims concerning her lack of memory."

Here's the tell. Bart actually thinks the FBI investigation *could* add something, but, uber-partisan that he is, he just thinks it would provide more evidence of Ford and the evil lizard-people Democrats perfidy.

So, you'd think uber-partisan Bart would want to see more evidence of Ford and the evil lizard-people Democrats perfidy, right? Boy, would he revel in it.

Nope. He then calls this 'useless.'

Because finding out what has happened has never been relevant to Bart and his ilk. He's engaged in pure, 100% propaganda, not actual discussion or argument.
 

Bart:

I have a feeling that when you defend your own clients, you don't take the position that all you have to do is question one witness to get the truth.
 

"A California professor hiring a high powered DC Democrat attorney at the same time and then making preparations to go public weeks beforehand destroys that claim and most of her credibility."

This is laughable.

If someone came to Bart with a story that would get the CO governor in a mess of trouble, saying they wanted to remain confidential but at the same time felt this information had to be considered for the public good, what would Bart, as an attorney, do? If he didn't take measures to sure up their credibility because of the possible, more likely probable, event of such information eventually ending in a focus on his client, then one might conclude that he's an even worse attorney than he's pretended to be here.

Of course taking steps to protect yourself if you *do* become exposed is not evidence that you wanted exposure.
 

Here's another link to another Huff Post report:

https://www.huffingtonpost.com/entry/brett-kavanaugh-yale-law-school_us_5ba551a9e4b069d5f9d2c4d4

about the roiling of Yale Law students on Judge K. Keep in mind that more than 50% of voters are women. Public opinion is important, especially with the upcoming midterm elections.
 

I have read that the GOP hopes to have a woman attorney/staffer examine Ford because the optics of the all white old male GOP Senate doing the same is, of course awkward.

1. Where are Brett and Bart, decriers of affirmative action, on this? Surely the job should be assigned on merit, not on something like gender, right?

2. How can the Senate delegate their 'advice and consent' role to an unelected bureaucrat like this? The Constitution clearly and literally gives this power to the 'Senate,' not their unelected employees...
 

The Whelan story is fantastic. Whelan is a notorious hyper-partisan in the mold of Brett and Bart. He really thought he had all this figured out, much like Brett and Bart casually do about so many complex topics far out of their field of expertise. With similar partisan-induced confidence he told his colleagues to expect his slam dunk (Bart says in this discussion 'obvious') arguments.

He produced them.

Somehow, others didn't see them how he did.

He tried to double down.

Yet, somehow, reality failed to bend its knee.

Now he's backpedaling and apologizing as fast as he can.

At least Whelan has some sense of when he's been a fool...
 

Assuming Mark Graber's 4th paragraph of his post at this Blog is accurate, I wonder what if anything Judge K's parents knew about the situation with their teenage son? I don't know if he was in a dormitory or lived at home while attending Georgetown Prep. According to Ed Whalen's detailed tweets, Judge K's home was only a few miles from this elite private school. If the parents knew, I assume they would have done something about it. Was Mark Judge persona non grata at their home? Were there parties at their home for students form the areas elite private high schools? Might an FBI investigation include contacts with Judge K's parents?
 

To the politics of this...

If I were a Democratic (or as Bart would say, 'Democrat') political adviser, interested solely in my clients political success, I would advise them to tell Ford to hold fast, to deny a hearing until a proper non-partisan, professional investigation. Let the committee of all old GOP guys vote that they don't believe a woman's allegations of sexual assault and aren't interested in even looking into the matter any more. That would be a powerful message to many women with the upcoming election, where the focus is on the rather unpopular pussy-grabber in chief.
 

Mr. W:

The principle of disregarding unfounded, misleading and prejudicial evidence underlying the rules of evidence should have equal application in a job interview, especially one to serve on the highest court in the land.

The measure for Rule 401 in this case is whether evidence Kavenuagh consumed alcoholic beverages over a period of years proves in any way the allegation he pawed Ford at this particular undisclosed date and time.

Now, if Kavenaugh claimed he did not drink during his teenage years as a defense to the Ford allegation, eveidence of his drinking would be relevant to rebut the defense and attack Kavenaugh’s credibility.
 

Mr. W:

Any trial attorney knows you offer your client’s story in the form most likely to be accepted by a jury.

I am realistic enough to understand an experienced female attorney would be a better messenger than I to the Democrats’ target audience of female voters.
 

"The principle of disregarding unfounded, misleading and prejudicial evidence underlying the rules of evidence should have equal application in a job interview"

You don't believe that for a second and it's laughable.

More importantly, you clearly don't understand the rule as you didn't even attempt to speak to my point on it.

The FACT that K engaged in youthful drunken bouts at the time of the alleged drunken assault *of course* makes it more probable that the alleged drunken assault occurred.

 

"I am realistic enough to understand an experienced female attorney would be a better messenger than I to the Democrats’ target audience of female voters."

Lol! So supporters of affirmative action are, shall we say, more realistic than opponents such as yourself?
 

It's getting more and more obvious to me that those from the White House shepherding Judge K's confirmation have done a miserable job if they had knowledge of Judge K's drinking as a teenager.

Mark Graber's post does not accommodate comments, for which I do not criticize him. But I wonder if what was expressed in the 4th paragraph of his post at this Blog was sort of common knowledge in the exclusive area of MD, then might the shepherds have known as well as politicians in the same social circles as Judge K? Were these persons aware of Mark Judge's "Wasted" memoir? How close are conservative politicians in the DC area with the ultra conservative Mark Judge?
 

Let's engage in some Bartism or Brettism. After all, their entire strategy/mindset is to be on the offense, to keep flinging, as Brett says, 'dry turds' at the wall hoping something sticks. It's Goebbels's advice.

Whelan is a known friend and supporter of K. What does his pathetic Sherlock Holmes' routine infer?

Were I a Bart or Brett of the other side, I'd suggest it infers they know K is in a bad spot, one where deflection and misdirection needs to be employed...

Because I guess McConnell saying that K was going to be confirmed no matter what wasn't good optics...
 

As to Whelan, it is to be underlined that reports have shown he was working with others, including a spin factory that also was involved in other smear campaigns.

As to his judgment of success, as Rick Hasen notes at his Election Law Blog, he has been at this for a while. Such tactics work sometimes. OTOH, as an article in Slate suggests, the desperate nature of this one might be a sign of well desperation.
 

SPAM is really anxious to show his skills but faces reality:

"I am realistic enough to understand an experienced female attorney would be a better messenger than I to the Democrats’ target audience of female voters."

Of course SPAM as the griller might be hoisted by his own petard with exposure of the amount of time SPAM spends trolling at this and other blogs, quickly adding SPAM nationally to #MeToo websites.

 

By the Bybee [expletives deleted, despite Gina], Justice Gorsuch also attended Georgetown Prep, overlapping with Judge K. But Justice Gorsuch was not part of the same party culture as Judge K and Mark Judge.
 

Remember, the GOP and Trump must have known about this allegation and that it might be taken seriously. You don't come up with a list of 60 women classmates that like the nominee otherwise...

Why K, then, when the Federalist list was long and surely included people they didn't have to assemble a list of 60 women classmates who attested the nominee was not an attempted rapist?

Let's put our Bart/Brett hats on.

Was it because of K's particular (and, of course, flip-floppy) views on protecting the Executive?

Did Trump go out of his way to nominate a flawed name from that list because of that nominee's demonstrated history of protecting executives, from, say, an investigation which has already netted guilty pleas from about a half a dozen high level foreign agents working in the current President's administration/campaign?

Is K the Manchurian Appointee?
 

For some reason I just thought of Tricky Dick Nixon's "Dirty Tricks" team in his campaigns. Also, Whalen is wailing.

Oh, don't forget Mitch McConnell's role in this and the concern with separation of powers with his spouse serving in Trump's cabinet at Trump's pleasure.
 

Here's another example for Bart of something that one might investigate aside from questioning Blasey:

Apparently she became reclusive after the alleged attack. Her friends noticed:

https://www.yahoo.com/lifestyle/christine-ford-fell-off-face-224151078.html

An investigator could ask her friends about this.

 

"You don't come up with a list of 60 women classmates that like the nominee otherwise"

Strictly speaking, the women who signed that letter were not "classmates" -- Georgetown Prep was an all-boys school. The media have consistently made this mistake.
 

Dilan:

The Democrats are perfectly capable of calling any witnesses they please. Indeed, they could have done so weeks ago.
 

Since it's obvious that Ed Whelan was working in conjunction with many other people before he published his defamatory and idiotic "conclusion", an investigation into the whole process, including Kavanaugh's knowledge/participation, would seem to be in order.
 

That's a silly answer, Bart. The Republicans are blocking not only an FBI investigation but also other witnesses at the hearing.

And it is also a dramatic, dishonest backpedal from "no other witnesses are relevant". I caught you.
 

What do you know? The cowardly Elephants have grown a spine. Grassley issued the following statement:

“Despite the fact that the July 30th letter remains hidden, my committee has been investigating the allegations and has heard from multiple witnesses since Sunday. Ms. Katz has discussed Dr. Ford’s allegations in numerous media interviews and said on TV Monday morning that Dr. Ford wants to share her account with the Senate Judiciary Committee. It’s Friday night and nothing’s been agreed to despite our extensive efforts to make testimony possible,” Grassley said. “I’m extending the deadline for response yet again to 10 o’clock this evening. I’m providing a notice of a vote to occur Monday in the event that Dr. Ford’s attorneys don’t respond or Dr. Ford decides not to testify. In the event that we can come to a reasonable resolution as I’ve been seeking all week, then I will postpone the committee vote to accommodate her testimony. We cannot continue to delay.”
 

Like everything else, that is a negotiating position.

I don't know who is worse, you thinking every negotiating position is unmoveable gospel, or Joe thinking every single political position he takes on the issue of the moment is constitutionally mandated.

Let. Them. Negotiate.

It might go through the weekend.
 

"Joe thinking every single political position he takes on the issue of the moment is constitutionally mandated."

Not a serious comment. It's hard to engage people who say things like that. It is the sort of thing that leads many at another blog to block the guy.
 

It is a serious dedescription of your constitutional arguments in this thread.

Here's an indicator- NOT ONE Senate Dem is making your argument about a constitutional requirement of an FBI review. And it is in their partisan interest to do so.

Even partisans who would love to make the argument obviously see it as a non-starter.

Don't say things about the Constitution that aren't true just because you don't like the political situation you are in. This sort of talk damages the Republic- way too many people can't separate what they want and what the Constitution requires. People who do what you have done in this thread make it worse.

Learn to separate your political aims from the Constitution. The Constitution simply has nothing to say about the way the Republicans run the Senate.
 

More generally, I have a personal perspective on this. I have practiced in constitutional cases for over 20 years And one of the annoying aspects of the job is listening to theories from prospective clients, unsupported by caselaw, as to why this of that too clever by half parsing of the Constitution entitles them to sue.

And I have to tell them "that's not how it works".

The Constitution is everyone's trump card. They search and search and search for some weird interpretation nobody ever considered before as to why whatever situation they are in cannot stand.

It's a headache. Real violations of the Constitution are incredibly serious things. John Marshall was right anout the province of the judiciary. But Henry Monaghan was also right that there is no sich thing as "Our Perfect Constitution".

We have to win arguments on the merits, by winning elections and getting our way in Congress.

Republicans too. The use of litigation to attack Obamacare on ridiculous theories was outrageous.

The Constitution does not speak to the normal power plays between Republicans and Democrats. The political process exists to remedy those things. And we have to stop thinking, as a society, that the Constitution rights all wrongs.
 

I just did a little Googling on Mark Judge and his memoir "Wasted." Here's a link to a Washingtonian article:

https://www.washingtonian.com/2018/09/17/mark-judge-michael-judge-brett-kavanaugh-memoir/

There is a lot of sadness in an essay by Mark Judge nohow the family "accepted" the blame Mark placed for his alcoholism on his dad, who had died before the book was published. Mark's brother Michael sent in a letter defending their dad. These were tough reads I trust that Mark continues as a recovering alcoholic as it is said one is not cured but attest continues in recover.

There can be much sadness resulting from excessive drinking. Based on Dr. Ford's claim, she was and continues as a victim of someone who was drunk. Mark's drinking continued into his college years. At some point he decided that he needed help. As to the book, was it necessary for his recovery? It cause damage to Mark's brother Michael and to their mom. I trust that Mark has not had relapses since his recover in the 1990s.

Maybe Dr. Ford will get to write a book whether or not Judge K is confirmed. Maybe it will help her to put her travails with her experience over the past 35 years. Such a book might cause pain for others, including elected and appointed officials, with her honest recollection that would include the treatment she has received after making her claim against Judge K (and Mark, who was also there).

If Judge K was a reckless teenage drinker, I'm not aware that he suffered the same path as his high school friend Mark. Perhaps Judge K had learned valuable life lessons from those teenage days.such that he is a good husband, son, father and a judge, perhaps soon a SCOTUS justice. But the claims of Dr. Ford will not disappear, as Anita Hill's claims have not disappeared. Maybe Judge K has to consider the situation carefully for himself and his family, a nice family. Things don't always work out as planned.

I feel sad right now for a lot of people currently involved in the process. I recall Judge K'sopening statement to the Committee, especially about justice for all, equal justice. I quoted a portion from his statement in this regard in one of the threads at this Blog. I believe in equal justice, for all.

I apologize for talking too much, but I felt compelled.
 

Mark Judge has made it clear that he does not want to testify. As a recovering alcoholic I assume Mark went through the 12 step process, which a recovering alcoholic should continue to observe. I just read the 12 steps and can understand how difficult it would be for Mark to say he was not present at the event as described by Dr. Ford if indeed he was there.
 

But the spirit of the 12 steps would appear to be violated if Mark Judge declined or avoided giving testimony if called upon by legal process.
 

"The use of litigation to attack Obamacare on ridiculous theories was outrageous."

Most of the theories were ridiculous, that I agree. The sound theories were dependent on aspects of the Constitution, such as enumerated powers doctrine, or the origination clause, that are effectively dead already.

In the end, the Constitution isn't just a paper barrier, it's a shredded paper barrier.
 

Query: Are there any studies on recovering alcoholics serving as witnesses under oath as to truthfulness?
 

"I just read the 12 steps and can understand how difficult it would be for Mark to say he was not present at the event as described by Dr. Ford if indeed he was there."

It's difficult in any case for him to testify about what didn't happen at a drunken party, when he was apparently in the habit, (Like Ford) at one time of getting falling down drunk. The most he can honestly say is that he doesn't recall the event happening, since he can't rule out the possibility that it happened, and he doesn't remember due to being drunk.

That's not testimony that's going to move Kavanaugh's accusers. They're in full "guilty until proven innocent" mode.
 

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Brett at 8:36 AM:

"In the end, the Constitution isn't just a paper barrier, it's a shredded paper barrier."

seems to be reverting to his anarcho-libertarian mode. Or did Brett just have Shredded Ralston for breakfast? Just listen to Tom Mix: "When it's roundup time in Texas ...."

http://www.horntip.com/mp3/1940s/1940s_tom_mix_(radio)/ralston_cereal.htm
 

Based on Brett's approach to Mark Judge, what's the harm in his being a witness under oath testifying as Brett, a mind reader, suggests? Of course there might be nasty follow up questions regarding any post-event/nonevent conversations that Judge might have had with Judge K in more sobering days. Judge might be asked whether when he went through recovery he did contact people that he might have wronged as an alcoholic, including back in his elite private high school daze [sic]. Why Judge might be asked if Judge K was his co-pilot back in those HIGH school daze [sic].
 

Notice that Brett parenthetically tries to sneak in the suggestion that Dr. Ford might have had, like Judge, a habit of "getting falling down drunk." Brett seems to have been schooled by Ed Whalen who heads some conservative ethics group (oxymoron) that engages in Tricky Dick Nixon "Dirty Tricks." (Brett at 8:42 AM.)
 

Why would I have to sneak it in? Are we pretending that Ford's high school yearbook isn't now public knowledge? This is the caption to a photo of her in the yearbook:

“Lastly one cannot fail to mention the climax of the junior social scene, the party. Striving to extend our educational experience beyond the confines of the classroom, we played such intellectually stimulating games as Quarters, Mexican Dice and everyone’s favorite, Pass-Out, which usually resulted from the aforementioned two.”

What did you think the game of "Pass-Out" entailed?
 

Brett:

Most of these folks only consume Democrat media. Conservative social media is not on the approved list of news sources for a party member.
 

"Conservative social media" must be a hoot for our own conservative Sesame Street variants Bert and Brat. I personally do not engage in social media, although Bert and Brat may use this and other blogs as part of their social media as trolls. Perhaps that "conservative social media" discloses entries from the yearbooks of Mark Judge and his co-pilot Judge K about falling down drunk in their elite HIGH school daze [sic]. Perhaps such might confirm the 4th paragraph of Mark Graber's post on excessive drinking.

This could all be revealed by a professional FBI investigation. Who knows, the ultimate defense might be "rough horseplay" or perhaps the recently raised defense of "outercourse," conservatively speaking.

Elected officials who are recovering alcoholics know the risks of a recovering alcoholic as a witness under oath.
 

Here's a link to a report from Daily Kos:

https://www.dailykos.com/stories/2018/9/22/1797803/-Grassley-staffer-promoting-Kavanaugh-resigns-after-his-own-history-of-sexual-harassment-is-revealed#read-more

that suggests a connection between Sen. Grassley and Ed Whalen's efforts to blame someone else. It addresses the role of the Committee's communications guy handling the Kavanaugh situation who just resigned for interesting reasons. This guy may have been outed of certain sexual harassment charges from a prior job and who also has connection with Ed Whalen's conservative "ethics" organization. Will Sen. Grassley demand an investigation to clear his name as he denies any connection personally to Ed Whalen's efforts that Whalen has meekly apologized for? How will "conservative social media" address this report?
 

“Lastly one cannot fail to mention the climax of the junior social scene, the party. Striving to extend our educational experience beyond the confines of the classroom, we played such intellectually stimulating games as Quarters, Mexican Dice and everyone’s favorite, Pass-Out, which usually resulted from the aforementioned two.”

I read this as sardonic. It might be self-referential (assuming she wrote it, and not the yearbook staff), but it might be a commentary on fellow students.

Regardless, I don't see how her possible drinking habits would be relevant here.
 

Here's a link to another Daily Kos report:

https://www.dailykos.com/stories/2018/9/22/1797782/-Kavanaugh-pal-who-tried-to-pin-sexual-assault-on-someone-else-is-lying-about-White-House-connections#read-more

fingering Ed Whalen possible coordination with the White House with his "someone other than Judge K" tweets that Whalen eventually deleted but are preserved elsewhere (e.g., at TPM).


Maybe Whalen's "someone else" will consider a defamation claim leading to discovery that could be very revealing.
 

Brett reads a lot into his yearbook quote as deftly pointed out by Mark Field, especially with his most apt use of "sardonic." [I have to distinguish him from the other Marks I have referenced in this thread.]

Years ago I recall a comment by Brett at another blog following his divorce recommending to men similarly situated that they might emulate the benefits of "going international" as he was. What should I read into that? Brett was well into adulthood at the time, not a teenager. Perhaps he meant it in the sense that Donald Trump had gone "international."
 

There, of course no "Democrat media," at least in the sense that there is a very real conservative media, one whose purpose is to promote conservative goals and often coordinates closely with each other, conservative groups and politicians.
 

Shag:

Bloggers of all ideologies often scoop the news media finding documentary evidence online. A conservative blogger found the yearbook and preserved the key parts with screenshots before the high school took it offline.

Bloggers did the yeoman work digging up Obama’s history at university, DSA and CPUSA before these organization could go Stalin and erase Obama’s socialism.
 

Mark, I think her drinking habits at the time can be relevant (when someone is drunk they often recall things poorly), just as K and MJ's habits at the time of their alleged drunken assault would be.

The problem, of course, is that the GOP don't want most relevant things looked into in this matter.
 

Please. We have had partisan media since the dawn of the Republic.
 

Yes, but most of what is called the 'MSM' makes an honest effort to 'play it straight down the middle.' The outlets that made the nothingburger that was Hillary Clinton's email scandal the most featured story of the 2016 election can only be called 'Democrat media' by someone with a severely distorted view of reality.
 

I appreciate Shag's extended remarks.

It perhaps is merely trivia that his birth was around the time of the end of the Prohibition and the birth of the AA.

As this thread eventually goes into hibernation as the summer itself does later today, I would underline that this is but a moment in a wider continuing history. Part of this is that it is in the #MeToo Era.

There is no likelihood of full satisfaction, especially when dealing with the past here. The best you can hope for is a fair process that provides all some grounds to be satisfied. This isn't a solitary thing. It is a continuing thing that happens in a range of places. It will happen again, including in a place not so divided by party. Here, to be fully honest, we are dealing with someone who has shown himself problematic above that. It is not merely a matter of his ideology. Some other nominee would get strong opposition but somewhat less since they would not be as bad.

And, I think overall -- as earlier in the process -- one side continues to handle things worse. The original had a sort of above the fray "both sides do it" character. That doesn't always work. It isn't shown here on balance.

There is always going to be distrust. Thus, I myself here was alleged to make shit up. To be blunt. I don't think that's objectively true, but guess I'm a tad biased. OTOH, at some point, there are different people on the other side. Some show more good faith and judgment/some ability to judge even when they disagree.

I am very concerned, among other things, at the "shove it in their face" nature of one party at the moment. They are running things, so it is worthwhile to be more concerned about them. They have the power. But, they had the power before, and they didn't seem so blatant about things. But, give an inch, you are a traitor these days. Plus, going all in has worked fairly well for them so far.


 

As to the Dilan Joe exchanges...

I think Dilan is correct that there is no 'recognized' Constitutional black (or even brown) law to that effect, but Joe's point is that it's reasonable to read this duty into the Take Care clause, and I think that's correct. Of course, what's 'black letter law' changes as courts and the political ideas driving them do.
 

There is no “main stream media.” A heavy majority are far to the left of the main stream of the American people. The conservatve minority of the media fall to the right.

I call the left majority the Democrat media because they will always spin for the party even when they campaign as non-progressives or even as conservatives.

The Democrat media’s attempt to cover up or spin Clinton crimes, corruption and lies as ‘nothing burgers’ is a perfect example of what they do and the credulous like you are their target audience.
 

"give an inch, you are a traitor these days"

As I've said, the conservative movement at the moment is one that has a very vocal, angry and lout base that is essentially full of wacko paranoid conspiracy theorists. The John Birch Society has won, so to speak. The normal, median GOP voter is now like Brett and Bart, as terrifying as that may be to accept.

It's hard to get a professional, successful, educated person to play to that base. They know it's goofy and wacky and won't work. Used to be they could placate these people with a little rhetoric here or a law around the edges there, but now those people are organized and the Tea Party is using the GOP's own gerrymandering to force them via primary challenges to actually reflect the nuttiness of the base.

My concern is that the left and the Democrats will do the same (they've already started to respond to the wackiness of conservatives on immigration with an equally wacky 'abolish ICE and open borders' position, or to the GOP's plutocratic economic policy with an embrace of socialism). Our two big parties are about to be beholden to nuttiness, and that's scary.
 

"I think her drinking habits at the time can be relevant (when someone is drunk they often recall things poorly), just as K and MJ's habits at the time of their alleged drunken assault would be."

The amount of alcohol she consumed on that specific day (she says it was one beer) would certainly be relevant. Her drinking habits generally probably wouldn't be (though they could become so based on what other evidence comes in). And, of course, a Senate hearing doesn't need to follow legal rules of evidence, though I'd expect them to when it comes to matters such as relevance.
 

"A heavy majority are far to the left of the main stream of the American people."

That's not true and not relevant. Sure, the people that work at major outlets are more liberal and Democratic, but that's because most major outlets are in urban centers and most of the workers are professionals, and professionals and urbanites are more liberal and Democratic. Studies actually show that the attitudes of the 'msm' press persons are to the left of the country on social issues but to the right on economic ones. It's irrelevant because journalism has largely adopted an 'objectivity' standard and most journalistic outlets strive to live up to this professional standard. Do their leanings sometimes push the needle to the left? Of course. But for the most part one can see that the msm press persons are trying very hard to live up to the professional standards of objectivity and fairness.

This isn't true of 'conservative media' at all. Fox, the WSJ, talk radio and online outlets are blatantly and always just trying to achieve partisan/ideological goals.

"because they will always spin for the party even when they campaign as non-progressives or even as conservatives"

Of course this is demonstrably untrue. It's that you are so far right, and so partisan, that you see any reporting that doesn't verify your partisan ideas as 'spinning' for the other side.

"The Democrat media’s attempt to cover up or spin Clinton crimes, corruption and lies as ‘nothing burgers’ is a perfect example of what they do and the credulous like you are their target audience."

Lol. If you are 'Democrat media' you don't run front page stories of nothingburgers like Clinton's email scandal. Any non-partisan examination of this issue saw there was no law breaking here. A long investigation led by a lifelong GOP operative in an institution dominated by conservatives *couldn't even recommend taking this to a grand jury.* And yet this supposed 'Democrat media' printed more on this nothingburger than it did Trump's pussygrabbing, his numerous shady business dealings, etc? With friends like these, who needs enemies?
 

Mark, I don't disagree with you generally here. I just think that evidence that she drank a lot at the time would support the idea that she may have drank a lot on that fateful night. It's not much of much, for sure, but relevant.

Also, I wanted to tell you how much I value your posts here, especially when you supply quotes from the Founders on various issues. There was a recent thread where I was very impressed and learned very much from that. Please keep that coming!
 

Here's an example of the 'Democrat media.'

The FBI was investigating Clinton's emails and at the same time (rightly, as any patriot should think) investigating numerous high level officials in the Trump campaign's ties to the Kremlin.

The NYT published more ink on the former than any other campaign related news. They pressed and pushed and looked for and published any leak or tip or speculation.

In the latter case the NYT took the official (and proper, but not followed in the Clinton affair) FBI position that there was no comment on any ongoing investigation. In fact, they took it further and reported leaks that nothing was there (here we are six guilty pleas later....)!

'Democrat media' my hairy butt. This is just an attempt by conservative propagandists to 'play the refs' because any honest reporting would, of course, make them look bad.
 

I think Dilan is correct that there is no 'recognized' Constitutional black (or even brown) law to that effect, but Joe's point is that it's reasonable to read this duty into the Take Care clause, and I think that's correct.

To forestall confusion, as Mark Field noted, my argument is that this will be tested in the political arena, but as a matter of constitutional practice. That is often how constitutional questions are settled. It is not "recognized" as a matter of binding law in the courts. It is "recognized" as a matter of practice that the executive has a role and duty here. It is not something I just made up. I think it's more than the Take Care Clause, but that is part of it, and might be enough here.

equally wacky 'abolish ICE and open borders' position

I am concerned in various cases that the left side of the aisle will have pressures as shown by talk of court packing, which I'm wary about without a more compelling need. I think "open borders" at most will have a lot of caveats. And, it is not to me -- I realize there is differences here -- "wacky" to abolish something that is less than twenty years old if it is shown to not be working very well.