Then there is the problem of diametrically conflicting stories. In jurisprudnece there is a well known phenominon referred to as the "Rashomon effect", named after the Akira Kurasowa film based upon the contradicting testimonies of multiple people who witnessed the same crime. However in the Rashoman effect, there is at least one point of agreement in the conflicting testimonies, the event itself. What happens when there is not even an agreement that the event in question actually took place? Still more problematic is when there are only two witnesses, an alleged victim, and an alleged perpetrator.
Oh yes, what happens when the alleged event in question took place decades ago, meaning any kind of physical evidence of the alleged crime has long since vanished?
Such is the case in the latest episode of the ongoing saga of the current administration, known as the Kavanaugh affair.
In case you're reading this hot off the press, you probably don't need any further explanation and can skip the following five paragraphs. However if you've come here after digging around this blog's archive a few years after the fact, you might need a little reminding.
For years the swing vote on the US Supreme Court was Justice William Kennedy who sometimes voted with the four predominantly liberal justices and sometimes voted with the predominantly conservative justices As such the Court was seen as for the most part, ideologically balanced. Upon Kennedy's retirement a few months ago, the task of submitting a candidate to the Senate to confirm his replacement as it always does, fell upon the shoulders of the president. The president selected Brett Kavanaugh, a solidly (some would say excessively) conservative judge currently serving on the Federal bench. Clearly with Kavanaugh's record, the balance of the SCOTUS would shift dramatically to the right should his nomination go through. This is especially troubling to many as a solid conservative Court could potentially review and overturn previous SCOTUS rulings, thereby revoking rights that people have held for decades, most notably Roe vs. Wade which guarantees every American woman's right to obtain an abortion with no questions asked.
This particularly contentious issue is probabaly the single biggest reason why Donald Trump won the support of tens of millions of conservative religious voters who collectively held their noses as they overlooked his many obvious moral transgressions, simply because he promised to appoint judges who would vote to overturn Roe v Wade.
With a majority Republican Senate, the president's pick is almost a certainty to be appointed justice, a job for life. Not surprisingly, Democrats are doing everything in their power to stall the nomination of this particular judge, in anticipation of the next general election a little over a month from now, where the Democrats have an outside chance of winning back the majority in the Senate. This may sound like obstructionist politics at its worst, but Democrats are simply following the precedent of the Republicans who during the waning months of the Obama administraton, refused to even consider the nomination of Merrick Garland, President Obama's candidate to fill the seat of the late Antonin Scalia. As Scalia was solidly in the conservative camp, Garland had he been approved, would have shifted the balance of the Court to the left.
The hearings to confirm Kavanaugh were going along swimmingly for him until near the end when it was revealed that a woman had come forward to accuse the potential new justice of sexually assaulting her in the early eighties when both of them were still in high school. Kavanaugh's accuser eventually agreed to make to her name public and testify before the Senate committee in charge of the appointment hearings, This past Thursday, Dr. Christine Blasey Ford gave a stirring account of her accusation that thirty years ago Brett Kavanaugh tried to rape her but could not, because he was too drunk to figure out how to remove the one piece bathing suit she wore underneath her outer garments. She then respnded to questions from the ten Democratic senators on the committee. Rather than question her themselves, the eleven Republican senators on the panel yielded their time to Rachel Mitchell, a Republican prosecutor from Arizona, who grilled Dr. Ford on the stand as if she were the accused in a criminal proceeding. The second half of the day was devoted to Judge Kavanaugh who gave an impassioned defense of himself, then responded to questions from the Deomocrats as well as the Republicans who used their time to heap praise upon the judge and condemnation upon the Democrats, accusing them of deplorable actions all in the attempt to discredit a fine judge.
The following day it was decided (I won't go into why, that's a blog post and a half all to itself) that the FBI would conduct a week long investigation into the matter before it goes to a vote before the full senate.
I also won't go into guilt or innocence, or the long list of social issues brought about by this case for the simple reason that these issues have been dealt with significantly elsewhere for the past two weeks.
Rather what I would like to address, is what amounts to the nitty gritty of this case, namely this: is Brett Kavannnaugh qualified to be a Supreme Court justice? As has been pointed out correctly by numerous folks, the whole confirmation process amounts to nothing more than a job interview. Granted the job of replacing the swing vote on the Supreme Court, a tenure that could last forty years or more, is perhaps the single most important job in this country. But the hearings are a job interview nonetheless.
What they are not, is a criminal proceeding. This past week, we've heard the term "due process" bandied about over and over by Kavanaugh supporters who insist that he is innocent until proven guilty and that the burden of proof of his guilt, lies with his accusers. This is nonsense. Kavanaigh is not on trial, he doesn't stand to lose his liberty as a result of these hearings. He only stands to lose his chance, at least during this go-around, to be a Supreme Court justice. Consequently these hearings which will provide guidance to the entire Senate, are not a means to determine whether or not Brett Kavanaugh tried to rape Christine Ford thirty five years ago, but rather to look at all the evidence presented, and determine if there is a credible reason there to reject his nomination for a seat on the bench of the highest court in the land.
With that in mind, I think it would be helpful to break the testimony down to all the possible conclusions that can be drawn from it. As the testimonies of these two individuals are diametrically opposed, to me there are three conceivable scenarios which themselves can be broken up further.
- The first conclusion that can be drawn is that Brett Kavanaugh tried to rape Christine Ford in the early eighties.
- The second is somewhere in the middle; there was physical contact between the two individuals, but the intents of the victim and the perpetrator at the time are in dispute.
- The third possibility is that Kavanaugh is innocent of the accisation.
Let's examine each of them one by one:
Case one: Dr. Ford's accusation is true; Brett Kavanaugh while in a drunken stupor tried to rape her. If you take her testimony to be true, there are two possibilities. either Judge Kavanaugh was so drunk at the time that he cannot remember what he did that night, or he is simply lying. Is the latter case a justification for dismissing Kavanaugh's nomination? Hell yes, without question, both for the original crime committed and for committing perjury in the Senate hearings. What about the former? Again, without question. A person is accountable for his actions whether drunk or sober. If someone charged with vehicular homicide tries to use the defense that he was so drunk at the time that he didn't know what he was doing, he would suddenly find himself charged with two very serious crimes. Before the Senate committee, Kavanaugh admitted to serious drinking in high school and college but refused to admit that he had a drinking problem. He claimed to never having drunk himself unconscious. Several of his classmates at Yale beg to differ, saying he was less than forthcoming about his drinking, which was according to them, prodigious. If this is true, Kavanaugh obviously has deeper problems than not being our next Supreme Court justice.
Case two: Physical contact between the two took place, but it was not a serious as Dr. Ford's allegations claim. Since neither Dr. Ford nor Judge Kavanaugh claim having had a consensual relationship, the scenario is unlikely. However the possibility has been brought up by defenders of the judge, namely Fox News who imply that their contact was indeed consensual, so it may be worth examining for a moment. There is a recent precedent for a public figure accepting charges of sexual assault brought against him. That public figure was US Senator Al Franken who admitted inappropriate conduct with his accuser, just not the extent to which she claimed. Frankin openly called for an investigation into the matter, something his accuser, for reasons known only to her, claimed was not necessary. Faced with increasing pressure from his own party, Franken resigned from the Senate. Kavanaugh missed the boat with this possible excuse as in his sworn testimony, he unequivocally denied having had any physical contact with Dr. Ford. Should he bring up a consensual relationship with Ms. Ford up at a later date, he would be admitting that he lied under oath, which of course would be immediate grounds for his dismissal. Kavanaugh also is suspect because during the hearings he avoided the question of whether he supported an FBI investigation of the matter in order to clear his name, while Dr. Ford openly supported an investigation.
Case three: Brett Kavanaugh is innocent. If you believe him, there are a few possibilities. One is that Christine Ford was sexually assaulted as stated in her testimony, but is mistaken about the identity of her attacker. The other possibility is that she is making the whole thing up. At this point for fairness sake, it must be pointed out that fraudulent reports of rape are rare, but not unheard of. Again there is a precedent for a public figure to have been falsely accused of sexual abuse, in his case of a minor. The name of the falsely accused individual is Joseph Cardinal Bernadin, a former archbishop of the Archdiocese of Chicago. The pain that Bernadin suffered during the period after the accusation was well publicized, as was the grace of the Cardinal in his forgiveness of his accuser after he admitted that he lied. As a fellow Catholic, Brett Kavanaugh should have been intimately familiar with Bernadin's grace during this particularly painful period of his life, and used his example as a model of how to react during a time of adversity. Unfortunately he did not. It is said that none other than Donald Trump coached him on how to behave at the hearing. He told the judge to get mad. Turns out Kavanaugh was a good study, in his opening statement before the Senate subcommitttee on Thursday, Kavanaugh ranted, raved, scowled whined and pouted, throwing temper tantrums accusing the Democrats of character assassination, and conducting a "calculated and orchestrated political hit" on him. What made his mentor the proudest was no dout Kavanaugh's mention of Bill and Hillary Clinton. His remarks were filled with self-pity and indignance in the fact that a man of his stature, should be subject to such treatment. It has been a cliche of late to use this term but for lack of a better description, white male privilege oozed out of every pour of Brett Kavanaugh last Thursday, and it was ugly.
Giving the judge all the benefit of doubt, and assuming that he is innocent of the accusations against him, Brett Kavanaugh did not act like a judge the other day let alone a Supreme Court justice, During the most important job interview of his life, he acted like a spoiled rich kid. Kavanaugh responded to reasonable questions with spite, bitterness, disgust, and above all in his claim that Dr. Ford's accusations were nothing more than a Democratic conspiracy to discredit him, he displayed an unacceptable political bias for a potential justice. What more reason does one need to reject an applicant for a job? Typically when someone blows a job interview, he does not get the job. My suggestion to the members of the Senate who are in a position to hire the next Supreme Court Justice is this, look for someone else.
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