Quick Thoughts on the Kavanaugh Allegations

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I would like to share a few thoughts about the sexual assault allegations being made against SCOTUS nominee Brett Kavanaugh by Christene Blasey Ford. I will not provide an adequate summary of the situation within this post, so please do some research before checking out my analysis. I would prefer to have written this in essay format, but I believe the bullet points below will do a better job of summing up the way I see it.

Sexual Assault

• Being 17 and drunk does not excuse sexual assault.
• What constitutes sexual assault is not well-defined or well-understood. The lines between playing around, making a sexual advance towards someone, having a momentary slip in judgment, and earnestly attempting to force someone into a sexual encounter can be blurry. It is even blurrier for teenagers, and was certainly even blurrier for teenagers of yesteryear.
• As a socially liberal individual, I do not believe that government or public oversight of teenage sexual interaction is a good idea. Sex and human relationships are generally too complicated for third parties to be able to fully comprehend, so authorities should only be consulted in extreme circumstances. Otherwise, young people as well as adults should be free to take risks amongst each other.

The Law

• As the alleged incident between Kavanaugh and Ford took place 35 years ago, we are long past the statute of limitations. This issue is about conduct and character, not the law.
• Although our legal system places the burden of proof on the accuser and presumes non-guilt until guilt is proven beyond a reasonable doubt, this is irrelevant in the court of public opinion or SCOTUS nominations.
• Believing someone is innocent until proven guilty is a value that I happen to share, but outside a court of law, it is a personal view, not a legal one. Reasonable people can disagree here.

The Sniff Test

• Christene Blasey Ford is probably telling the truth at least in part. There is some documented history of Ford discussing the matter in the past, and it is hard to imagine that she or anyone else would make up a story like this completely out of thin air.
• Remembering the exact details of an event from 35 years ago is impossible for both Kavanaugh and Ford. Our brains remember certain details of our history, and our imaginations fill in the rest. This makes it difficult to accept either party’s version of the story without substantial evidence or witness testimony.
• Emotion can also cloud our judgment as what we feel we experienced may not mirror what we actually experienced.
• Ford’s lawyer Debra Katz defended Al Franken when he was accused of sexual misconduct, saying, “He did not do this as a member of the U.S. Senate.” This is obviously true, but, unlike Kavanaugh, Franken was an adult when his misconduct took place. Katz appears to be a partisan lawyer, not an impartial defender of the Constitution or human rights.
• Ford is on the left-wing of the political spectrum, so certainly has a political bias against a textualist judge like Kavanaugh.
• Neither Katz’s nor Ford’s partisanship has any bearing on the accuracy of Ford’s story, but it does make them less credible.
• Kavanaugh and Mark Judge, the other individual accused of assault and Kavanaugh’s friend, deny the allegations wholesale.
• By all accounts, the alleged incident between Kavanaugh and Ford is in no way representative of Kavanaugh as a person. However, one’s generally saintly behavior does not negate one’s sins.

Politics

• Senator Dianne Feinstein knew of Ford’s allegations before Kavanaugh’s senate confirmation hearing, but chose not to question him about it in any way. Feinstein is obviously using Ford’s story as a political weapon, which is shameful.
• Regardless of how true Ford’s allegations are, Feinstein clearly timed the release of her name and story as a way to derail Kavanaugh’s nomination in the 11th The senate vote to confirm him is scheduled to be completed within a week.
• Democratic Senators have been against Kavanaugh’s confirmation since long before his confirmation hearings and put on an embarrassing and hysterical display of partisanship during them. This includes attempting to smear Kavanaugh’s assistant as a white nationalist for momentarily resting her hand in the “a-okay” position, which is falsely described as a racist dog whistle by some on the left and in the media.
• Senate Republicans can afford to delay the vote for at least another month without any risk of losing the senate and their ability to confirm justices without any Democrat support in November’s midterms (though I am completely unaware of how senate judiciary committee rules would come into play here).
• Up until Democrats’ blocking of Ronald Reagan’s nomination of Robert Bork, there was little partisanship in these proceedings. Until Bork was blocked in 1987, the average SCOTUS nominee received 87% senate approval and 49% were confirmed unanimously. Since Bork, partisanship in voting has dramatically increased, especially from Democrats.
• Trump’s first SCOTUS nominee, Neil Gorsuch, had no allegations of misconduct of any kind alleged against him, yet was confirmed by the Senate by a slim margin of 54–45 with only three Democrats voting in his favor. Justice Alito received only four votes from Democrats in 2005. This shows that Democrats are clearly in it for the politics, not justice, character, or whatever else they claim to be standing for.
• Republicans have certainly become more partisan too, and refused to even hold confirmation hearings for President Obama’s last SCOTUS nominee Merrick Garland, arguing that it is tradition to deny a lame duck president’s nominations until after ensuing elections.
• It can be argued that 11th hour sexual assault allegations to derail SCOTUS nominations sets a terrible precedent, but with as much partisanship as we are seeing now, the precedent has already been set.

Summary

• The allegations against Kavanaugh should not be categorically denied, but should certainly not be believed at face value. Both Republicans and Democrats are playing politics, and it is unclear to me that Kavanaugh’s alleged discretions are so damning that he should be denied an opportunity to serve on the Supreme Court. If Republicans have a way to investigate the situation and still have time to nominate Kavanaugh before midterms, they should do so. However, it would be hard to blame them for proceeding as planned as there is nothing they can do to satisfy the Democrats short of leaving Justice Kennedy’s seat vacant until a left-wing justice is nominated.
• President Trump could have avoided this mess by nominating Amy Coney Barrett instead of Kavanaugh. Besides being a far better judge, nominating a woman would have taken the #MeToo card out of Democrats’ hands.

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