Category Archives: Kavanaugh

Endorsing Avenatti

Don’t confuse us with the facts…
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WSJ 9/27/2018

Now comes a third accuser against Brett Kavanaugh, this time claiming the Supreme Court nominee was part of a gang of high school boys who spiked the drinks of teenage girls in order to assault and rape them. Really? Does even Mazie Hirono believe this?

The charge comes from Julie Swetnick, a Washingtonarea woman elevated to accusatory fame on Wednesday by Michael Avenatti, the lawyer for porn actress Stormy Daniels. She claims that Mr. Kavanaugh and high school friend Mark Judge drank to excess at numerous parties and then assaulted girls and women with abandon. She says in a sworn statement that the gang would “‘target’ particular girls” who were alone or shy for serial rape.

So we are supposed to believe that the boys at Georgetown Prep, amid their dreams of Yale, conspired to commit drug and sex crimes on multiple occasions over many years. Yet word of this rape gang at an elite Jesuit high school never made it to anyone in authority. None of the rape victims spoke up—not to a teacher, parent or other official—then or since. None of the boys bragged about it to friends who spoke to a parent or priest.

As for Ms. Swetnick, she says in her statement that she was personally assaulted in 1982 at one of these parties, yet she admits that she attended “well over 10” of these parties from 1981-1983. This means she would have returned to these parties even after she was gang-raped. She suddenly recalls it all now after 35 years, though somehow this never came up during FBI investigations of Mr. Kavanaugh’s background over more than two decades.

Messrs. Judge and Kavanaugh deny the accusation, with Mr. Kavanaugh calling it “ridiculous and from the Twilight Zone.” But that’s unfair to the late Rod Serling, who was more subtle than this kind of character assassination. We wouldn’t even report the details of this latest smear if Democrats and the left weren’t treating the accusation as disqualifying for the Supreme Court.

Within hours of the Avenatti-Swetnick claim, every Democrat on the Senate Judiciary Committee called for Mr. Kavanaugh to withdraw as a nominee. This would be politically convenient because it would let them suggest that Mr. Kavanaugh must have been guilty.

Brett Kavanaugh’s opponents will believe anything.

It would also spare their fellow Democrats running for re-election this year from having to vote on the nomination. But if this is the new confirmation standard, then we have entered a politics in which anyone can be destroyed by anyone making an incendiary charge, even without supporting evidence. All an opposition Senator has to say is that the accusation seems “credible,” and a nominee can be disqualified. The new political standard will be the presumption of guilt.

Senate Minority Leader Chuck Schumer says this traditional due process standard doesn’t apply to Mr. Kavanaugh because a nomination isn’t a criminal trial. But due process for the accused is rightly employed as the standard across nearly all of American public and private life. The burden of proof is on the accuser.

This holds for charges of scientific fraud, legal malpractice, or violating the standards of a professional society. It even holds, tenuously, for sexual-assault cases on most college campuses where at least an accuser has to meet a 50.1% “preponderance of evidence” standard. If “J’Accuse” is the new standard of proof, then we have a long list of Democrats who should be summarily dismissed from public life. This is one reason we wrote that former Democratic Senator Al Franken should have defended himself after he claimed he was unfairly charged with mistreating women.

Keep all this in mind as you watch the Senate hearing Thursday with Mr. Kavanaugh’s first accuser, Christine Blasey Ford. She’s been treated respectfully by Republicans even after ranking Democrat Dianne Feinstein withheld her accusation from fellow Senators for six weeks this summer while it could have been vetted. Instead it was dropped, like the other two accusations, at the last minute.

If new facts show that Mr. Kavanaugh committed the acts that Ms. Swetnick alleges, he can be impeached. But accusations alone, without corroboration or evidence, do not amount to proof by any standard of fair due process— no matter how many times Democrats assert it.

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Democrats Disgrace the Senate

It is almost impossible for me to fathom how the Democratic Party condones what is happening.
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WSJ 9/27/2018 By Karl Rove

Thursday will be an immensely consequential day for America. As of this writing, Christine Blasey Ford is scheduled to appear in the morning before the Senate Judiciary Committee, followed by Judge Brett Kavanaugh. They both deserve to be heard, but the hearing could devolve into a circus.

Sen. Dianne Feinstein could have avoided this chaos if she’d acted properly in July after receiving Ms. Ford’s letter alleging Mr. Kavanaugh sexually assaulted her at a party of teenagers in the early 1980s. Mrs. Feinstein could have promptly delivered the letter to the FBI so agents could interview Ms. Ford, Judge Kavanaugh and the people she claims were present. Their responses would have been included in the judge’s confidential background check.

The Judiciary Committee could then have privately considered all the facts—including that Ms. Ford can’t remember when or where the alleged assault took place, and that the three people Ms. Ford claims attended the party all deny any recollection of it. Ms. Ford would have kept her anonymity and Judge Kavanaugh his reputation.

But Mrs. Feinstein—who finds herself in a difficult reelection campaign—placed venomous partisanship above fair play and professionalism. She has brought dishonor to her decades in the Senate.

Now comes an accusation in the New Yorker that Mr. Kavanaugh exposed himself to Deborah Ramirez at a Yale drinking session, and another, even more salacious allegation from “resistance” celebrity attorney Michael Avenatti. The New York Times earlier took a pass on Ms. Ramirez’s story after interviewing “several dozen people” without finding any who could corroborate it. They also discovered she recently told classmates she wasn’t certain Mr. Kavanaugh was the one who exposed himself, asking them to confirm it. (According to the New Yorker story, Ms. Ramirez “was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking.” She “felt confident” of her story only “after six days of carefully assessing her memories and consulting with her attorney.”) Judge Kavanaugh had already undergone two extensive FBI background checks, one when he joined the White House staff and another when nominated to the U.S. Circuit Court of Appeals for the District of Columbia. None of these allegations were raised either time.

Senate Democrats seem to be competing to debase themselves most. Shouting at Chairman Chuck Grassley, Sen. Kamala Harris looked like she’s already campaigning for president. Sen. Cory Booker (D., Thrace) repeatedly and defiantly boasted that he’d make public confidential documents— whose release the committee had already authorized. Sen. Dick Durbin vacuously praised lawbreakers disrupting the hearing as the “noise of democracy.”

When running for the Senate in 2010, Richard Blumenthal falsely told constituents he had served in Vietnam. He now claims Judge Kavanaugh lacks credibility and so has “a responsibility to come forward with evidence” rebutting Ms. Ford—that is, responsibility to prove a negative.

But when it comes to recklessness it’s hard to outdo Sen. Mazie Hirono, who told male colleagues and the men of America to “shut up” and “do the right thing for a change,” which is to believe Ms. Ford regardless of facts. Like the Queen of Hearts, she believes “Sentence first—verdict afterwards.” When asked about Judge Kavanaugh’s denials, Ms. Hirono suggested he’s not entitled to the presumption of innocence because of his conservative judicial philosophy. She then signed a fundraising appeal for MoveOn.org to help make Judge Kavanaugh’s nomination “an electoral issue . . . to make sure this costs Republicans extra seats.”

Senate Judiciary Democrats have endorsed as acceptable (1) disruptive tactics unworthy of even a Third World country, (2) the presumption of guilt instead of innocence, and (3) determining a man guilty by accusation alone, even if the weight of evidence points the other way, so long as it suits their ideological agenda. Republicans should refuse to bow to such methods. They should also decline to resort to them when the tables are turned.

Both parties will suffer politically if they lose. The Republican base will be furious at its leadership if Judge Kavanaugh is defeated or his nomination withdrawn. The Democratic base will be demoralized if he is confirmed— although it will also use his presence on the Supreme Court to gin up turnout among liberal women and attack the GOP.

I know Brett Kavanaugh, who is a former White House colleague. In hard times for our nation after 9/11, I came to deeply admire Brett’s character, intellect and integrity. His reputation was spotless until Democrats began acting like a mob. Judge Kavanaugh deserves better than this sordid process. More importantly, the country does.

Mr. Rove helped organize the political-action committee American Crossroads and is the author of “The Triumph of William McKinley” (Simon & Schuster, 2015).

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The Kavanaugh Standard

I think we are truly watching the implosion of the Democrat Party. If not a single Democrat votes in favor or Judge Kavanaugh, then what can I conclude but that the “law of the land” has ceased to exist as a principle in their party.
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WSJ 9/27/2018

Judge Brett Kavanaugh’s nomination to replace Anthony Kennedy on the U.S. Supreme Court is a watershed event that will define America’s politics for years. If the Kavanaugh nomination fails because of the accusations made against him by Christine Blasey Ford and others, America’s system of politics, indeed its everyday social relations, will be conducted in the future on the Kavanaugh Standard. It will deepen the country’s divisions for a generation.

The Kavanaugh Standard will hold that any decision requiring a deliberative consideration of contested positions can and should be decided on just one thing: belief. Belief is sufficient. Nothing else matters.

Rape is already a prosecutable crime. Definitions of sexual harassment are undergoing a reconsideration that may yet produce new legal standards to determine liability or suitability for employment. Right now, we are not close to a consensus.

Once the decades-old accusations had been made against Judge Kavanaugh, with no corroboration available or likely, the Senate Judiciary Committee had no practical or formal basis for enlarging the discussion about his nomination. For everyone, the way forward was into a fog.

Then something new happened. Half of the Senate Judiciary Committee created this standard: “I believe Christine.”

It is an inescapable irony that the Kavanaugh Standard— “I believe”—is being established inside the context of a nomination to the highest U.S. court. This new standard for court nominees (and surely others in and outside politics) would be that judgment can be rendered in the absence of substantive argument or any legal standard relating to corroboration, cross-examination or presumption of innocence.

In fact, the Kavanaugh Standard would have less intellectual content than liberalism’s previous judicial gold standard— agreement with the Supreme Court’s decision in Roe v. Wade. The new, operative standard, assuming two Republican senators abandon Judge Kavanaugh, will come down to a leap of faith.

For a political cynic, like Chuck Schumer or Dianne Feinstein, all these considerations are pointless and irrelevant. Just win, baby. A bloodless political actor such as Sen. Schumer would say: Look, if there’s a problem of some sort with compromised legal standards, we can make adjustments later. They won’t do that.

If Democrats regain control of Congress and the presidency, this is how they will govern—with belief alone sufficient as justification for imposing policy. Something like a politics-by belief emerged with the Obama presidency’s remarkable number of broadly applicable executive orders issued by the Labor, Education and Justice departments and the Environmental Protection Agency. But even these orders, however coercive, permitted challenge as a misreading of available facts. The defeat of this Supreme Court nominee would be simply asserted. It would have about as much political legitimacy as a one-man- rule decree. I have been wondering what the rest of the nation’s sitting judges are making of the Kavanaugh proceedings. Or more specifically, what Justices Stephen Breyer and Elena Kagan think of what they imply for the future of the law’s role in the U.S.

Looking at what has happened recently to university professors accused and then abandoned by their schools and colleagues for alleged racial offenses, or at the spectrum of proof in #MeToo incidents, it is clear that the political and academic left are contesting centuries-old standards of evidence. Liberal jurisprudence and its arguments with conservatives, for example over Fourth Amendment search cases, is being displaced by a Democratic left—there is no other way to describe it—that prefers rough justice.

Rough justice is what the political left and the media left, notably the New Yorker and New York Times, is meting out to Brett Kavanaugh. Hawaii’s Sen. Mazie Hirono has emerged from this hearing as a hero of the new rough justice.

Professors at Yale Law School canceled classes this week so that much of the student body could travel to Washington to support Ms. Ford’s allegations, which suggests that the most popular class at Yale these days must be “Legal Principles from the Stone Age to the 10th Century.” It’s not a joke. In 20 years, a President Ocasio-Cortez will be naming these advocates of faith-based reasoning to the federal appeals courts.

In a more conciliatory atmosphere, one might say that even if the claims of a highschool offense were true, surely there is a case in adulthood for forgiveness. But these are unforgiving times, and that virtue is out the window.

Ultimately, this drama comes down to the choices about to be made by Republican Sens. Jeff Flake, Susan Collins and Lisa Murkowski. The question is whether the Senate’s advice and consent for appointment to the U.S. Supreme Court should be reduced to simple secular belief. More important is that the entire country is watching now, and we’ll find out soon what the American system of law is going to look like for the next 25 years.

Write henninger@wsj.com.

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