One of the key Senators to watch in the Kavanaugh confirmation battle has been Senator Jeff Flake of Arizona. He is not a Trump fan, to put it very mildly. He is not running for reelection. He has no apparent motive other than the merits regarding how to vote. This morning he issued this statement:
"After hearing more than 30 hours of testimony from Judge Kavanaugh earlier this month, I was prepared to support his nomination based on his view of the law and his record as a judge. In fact, I commented at the time that had he been nominated in another era, he would have likely received 90+ votes.
When Dr. Ford's allegations against Judge Kavanaugh surfaced two weeks ago, I insisted that she be allowed to testify before the committee moved to a vote. Yesterday, we heard compelling testimony from Dr. Ford, as well as a persuasive response from Judge Kavanaugh. I wish that I could express the confidence that some of my colleagues have conveyed about what either did or did not happen in the early 1980s, but I left the hearing yesterday with as much doubt as certainty.
What I do know is that our system of justice affords a presumption of innocence to the accused, absent corroborating evidence. That is what binds us to the rule of law. While some may argue that a different standard should apply regarding the Senate's advice and consent responsibilities, I believe that the constitution's provisions of fairness and due process apply here as well.
I will vote to confirm Judge Kavanaugh."
That determines the outcome for the committee, and it goes a long toward determining it for the full Senate. To defeat the nomination, the opposition needs to peel off two Republicans and not lose any Democrats. Not impossible, but much less likely than yesterday.
Update: At the last minute, Senator Flake conditioned his aye vote on there being an FBI investigation "limited in time and scope" to one week and the allegations currently before the committee, with a postponement of a floor vote to allow for it. Okay. There is very little chance of that changing anything, and one week does not make that much difference. With that, the nomination advanced to the floor with a favorable committee recommendation.
Flake voted to advance, but made it clear that there is an agreement to have a one week investigation of the allegations against Kavanaugh.
Decencyevolves: So here is where we are left. Senator Flake and President Trump have both called Ford credible. Yet, as Dahlia Lithwick points out, Professor Ford was:
“dismissed as though she were some character in a very sad French movie that had been very affecting indeed but had nothing to do with the great man and his destiny. After presenting an undeniable narrative—and one that nobody ever really attempted to specifically refute—she was told that her credibility didn’t count for anything.”
Judge Kavanaugh then bellowed in a manner that would cause “any sane litigant” who didn’t espouse his views to lack “confidence in the justice system after the man who will be the decisive vote on the court made it manifestly clear that he believes half the country, and the media, and liberal dark money were all in on a conspiracy to take him out. Because of the Clintons. This wasn’t ultimately a hearing about whether Kavanaugh deserved to be elevated to the high court. It was a blind partisan tantrum in which he dragged the judicial branch down to a place of ugliness and rancor from which it will not soon recover....While Ford offered exacting answers, Kavanaugh repeated half-truths and conspiracy theories and sneered and slammed through a fog of rage. It was a perfect contrast not just to Ford’s conduct, but to that of Merrick Garland, who never said a word when the seat to which he was entitled was yanked away.
There were two distinct moods in the Kavanaugh hearing: Ford evoked undistilled sadness and vulnerability; Kavanaugh evoked raw fear that if he were ever crossed, he would lose control. Do. Not. Make. Him. Angry. is the new judicial temperament. It is the perfect metaphorical springboard to the highest court in the land, where he will say he’s calling balls and strikes while he froths with contempt at those he believes coordinated against him: Be very afraid. This is what we will call ‘justice’ now.”
https://slate.com/news-and-politics/2018/09/christine-blasey-ford-hearing-fear-a-justice-brett-kavanaugh.html
Not going to get into a point-by-point, but suffice it to say that many people saw Judge Kavanaugh's testimony and came to very different conclusions.
"What I do know is that our system of justice affords a presumption of innocence to the accused, absent corroborating evidence."
This is, of course, an incorrect statement. You can, with some exceptions, be convicted based on the testimony of a single witness.
I also find it bizarre in the extreme that the standard some are applying before we can deny someone the honor and responsibility of a lifetime appointment to the highest court in the land is the same as the one we require before condemning someone to prison or death.
Flake's phrasing on the presumption is awkward, to be sure, but I read it as actually erring in the other direction. The accused is entitled to a presumption of innocence whether there is corroborating evidence or not.
In any case, his essential point is that the burden of proof is on the party making the accusation. That is not just a criminal law rule. It applies in civil cases as well. If you accuse someone of a simple tort or breach of contract, you have the burden of proving it.
It would indeed be bizarre to say that an accusation against a nominee must be proved beyond a reasonable doubt, the standard for criminal cases. I have not heard anyone say that.
Given the abundance of highly qualified, ideologically compatible potential candidates, I think a Supreme Court nominee should successfully quell doubts about such issues. There is no “right” to be on the Supreme Court and if his doubts remain, Flake has no business voting to confirm Kavanaugh. You can’t really say that Professor Ford was credible or compelling and that your doubts have been resolved.
More than that, difficult as it may be to face such allegations, litigants will be coming before him for decades. If a nominee yells, make accusations of wide ranging political conspiracy, says “what goes around comes around,” and treats questioning Senators with apparent contempt and anger, he isn’t behaving in a way that is consistent with the office he seeks.
I might agree with your proposed assignment of burden of proof if I only considered direct effects. Failure to consider indirect effects is the cause of a great many bad policy choices.
The indirect effect of such a rule would be to make it far too easy to derail a nominee via character assassination. Standing for confirmation already involves a massive loss of privacy. The process is already a barrier that causes many good people to chose against public service. Throwing people to the Avenatti-type wolves and requiring them to prove their innocence would increase this problem.
Whether Judge Kavanaugh's demeanor at the hearing was the wisest choice is debatable. But of course there really is a political conspiracy to get him. Several members of the committee deserve every ounce of contempt and anger they received and more.
BTW, what burden of disproof do you propose for the nominee? Beyond a reasonable doubt?
A nominee who has is credibly suspected of serious misconduct shouldn’t be confirmed to the US Supreme Court. If Professor Ford is, in the words of President Trump, who nominated Kavanaugh, “very credible” and she has charged him with serious misconduct, that should be the end of the matter.
What makes her very credible? Her demeanor, her candor in testifying, her background, the fact that she may have travelled in the same circles as Kavanaugh (she says she dated Kavanaugh’s friend, Chris Garrett, who Ed Whalen wrongly suggested was her assailant), and her prior consistent statements.
And then one can look at Kavanaugh’s testimony on examination which contained evasiveness, rudeness, overstatement of the record (the four witnesses who he referred to did not exonerate him and the letter from Mark Judge’s lawyer wasn’t under penalty of perjury) and implausibility (e.g., he drank but never passed out and never forgot anything under the influence of alcohol, a statement contradicted by many witnesses; Beach Ralph Club referred to throwing up, but not from drinking; Renate Alumni was a compliment to the young woman, not a suggestion that the football team had sex with her which is how she now views it).
I want a nominee, whether he be liberal or conservative, who is candid with the Senate about matters of fact. On this and on the Manuel Miranda emails and other matters, Kavanaugh’slack of candor is disheartening. I know I’m going to be unhappy with the ideology of whoever is confirmed, that’s life, but I do find it shocking when a nominee to the Supreme Court lacks this much candor in his Senate testimony on factual questions.
I was unhappy with Gorsuch and Alito but they didn’t have these kind of problems. The Administration can do better and I wish it would.
Re: Judge Kavanaugh’s lack of candor, this article lays out the situation pretty plainly: https://www.nytimes.com/2018/09/28/us/politics/brett-kavanaugh-fact-check.html#click=https://t.co/VM5n88spLP
In the context of Kavanaugh being a virgin, the Renate Alumnius [sic] explanation seems plausible. Not to be to indelicate, but if she had slept with the football team, it doesn't seem likely that he would be bragging about going on one date with her and not even getting to first base. The news coverage of this is appalling. This poor woman has been shamed for something she almost certainly did not do in front of the nation.
As for the NYTimes reporting, I would just say that there are differences of opinion on its probity. And his explanations of the Beach Ralph Club can hardly be described as dishonest.
The one thing that is really funny about this--the Dems' prudishness over drinking. For a party that lionized Senator Neckbrace, that's an interesting juxtaposition.