Recently in Judicial Selection Category

The women's movement was on display at this week's State of the Union address ....  One would expect that these same Democratic women would be similarly excited that a woman has been nominated for Kavanaugh's now empty seat on the U.S. Court of Appeals for the D.C. Circuit.

But just the opposite was true when the Senate Judiciary Committee met Tuesday to hear from Neomi Rao, the D.C. Circuit nominee. I'd like to say I was surprised but Rao is a conservative and, on the Hill, the #MeToo movement is about partisan politics rather than about women.

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An irony of Democrats' judicial confirmation politics is that their efforts to thwart nominations deliberately and disproportionately impact stellar minority and female nominees. Just ask Miguel Estrada or Janice Rogers Brown.

Supreme Court Justice Ruth Bader Ginsburg blamed the polarization of the nation's judicial confirmation process on a lack of bipartisanship and collegiality in Congress during a public appearance Wednesday in Washington.

Joel Shannon has a report in USA Today titled: Witches plan to hex Brett Kavanaugh using effigies, coffin nails, graveyard dirt and more

Majority Leader Mitch McConnell announced Thursday afternoon that the Senate would vote on the 15 nominees by the end of the evening. Three nominees are for appellate courts--one each for the Second, Third and Ninth Circuits. That would put the total of appellate judges confirmed at 29 in the last two years--a modern record for the first two years of a Presidency.

"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."

The more remote a memory is in time, the less reliable it tends to be, partly because of decay and partly because recalled memories can be corrupted by new information. New and old memories can be conflated, sometimes emerging as totally false memories. Memories can be warped by leading questions from therapists, lawyers, journalists or others.

My colleague Elizabeth Loftus was able to "implant" false memories in a significant subset of laboratory subjects by showing them an official-looking poster of Disney characters, including Mickey Mouse and Bugs Bunny. Many subjects later remembered meeting Bugs Bunny on a childhood trip to Disneyland. Some of them even reported that Bugs had touched them inappropriately.

That was impossible. Bugs Bunny isn't a Disney character.

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Pundits have drawn a line between Judge Kavanaugh and his accusers, and insisted Americans take sides. But there is a third way: Remain agnostic until you know whether the accusations are backed by independent corroborating evidence. Without corroboration the public--and members of congressional committees--can't know whether a memory is authentic or is a product of some other process.

In a City Journal piece, Heather MacDonald provides some much-needed perspective on the current effort to scuttle the confirmation of Brett Kavanaugh to the Supreme Court.  "If Supreme Court Justice William Brennan were posthumously discovered to have aggressively groped a girl once in high school, should that fact discredit his landmark opinions expanding press freedom, legal protections for criminal defendants, and voting and welfare rights? Would it have been better for the country, from a liberal perspective, if Brennan's judicial career had been derailed from the start?  Ironically, Hillary Clinton had it right when she called her husband's affair with a White House intern a "lapse," notwithstanding that it represented an abuse of workplace hierarchies. Today, of course, Clinton and her supporters are singing a different tune. The late Ninth Circuit Court of Appeals judge Stephen Reinhardt (for whom I clerked), arguably the most liberal judge in the country, was appalled by the treatment of his fellow Ninth Circuit jurist Alex Kozinski, driven off the bench last year by feminists for his juvenile sexual repartee.  Reinhardt told me. It was a tragedy, that privileged law clerks would bring down someone who was fundamentally so good and decent and one of the best judges we have." 

I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents.

Kristina Peterson and Peter Nicholas report for the WSJ:

The Senate Judiciary Committee will hold a hearing next Monday with the woman who has accused Supreme Court nominee Brett Kavanaugh of sexual misconduct, according to lawmakers and aides.

The hearing would give the public an chance to hear more about the three-decades-old accusations against Judge Kavanaugh that now threaten to derail his nomination to the high court. The Senate is expected to announce details of the hearing shortly.