The
confirmation hearing for Judge Kavanaugh came in two parts. There
was the usual sort of hearing and then the hearing resulting from the
allegations of Brett Kavanaugh's sexual misconduct. Thursday the
hearing in which Dr. Basey Ford and Brett Kavanaugh testified began,
and yesterday it looked like it would end in a storm of verbal flatulence and objections
thereto. Lets get real about this. Any confirmation hearing is a
job interview that can and will turn into a fact finding hearing if
and when there are allegations that could or should disqualify an
appointee from sitting on the court or filling another position to
which he or she was appointed. So lets look at what a fact finding
hearing should be.
In
order to determine the veracity of the allegations you need to start
with an investigation conducted by professional, nonpartisan law
enforcement personnel (the FBI). Then you need to gather all the
relevant documents and objects to be introduced through witnesses. Next you need to
call all the witnesses you can identify, and have them testify before
the committee. You can introduce sworn statements and declarations
as evidence but those statements and declarations do not replace
testimony. A statement or declaration cannot be cross examined, so
such documents must be introduced through the witness who is
purported to have made the statement or the declaration. In other
words, the hearing is quasi judicial in regard to the rules and
procedures followed.
In
spite of the fact that the Democrats were demanding a valid
investigation and fact finding hearing in regard to the allegations
of sexual misconduct the Republicans refused to follow the rules and
procedures stated above; choosing instead to conduct a kangaroo
hearing designed to provide eye wash while ramming through the
confirmation of a political hack (not unlike Abe Fortas) as the next
supreme court justice. Even during the first hearing that did not
involve the allegations of sexual misconduct the Republican Party
refused to produce or make available thousands of pages of documents
relevant to judge Kavanaugh's legal background. The majority party
also refused to delay the hearings in order to gather facts or to
urge the President to instruct the FBI to reopen its investigation of
Judge Kavanaugh's background in regard to the allegations made by
Blasey Ford, Deborah Ramirez, and Julie Swetnick. Furthermore, the
Republicans refused to even call any witnesses who could corroborate
or refute the allegations. This refusal to call witnesses was
particularly egregious in regard Mark Judge who Dr. Ford identified
as being in the room when Brett Kavanaugh was trying to rape her.
The Republicans even tried to discredit the polygraph test taken by
Ms. Ford without calling as a witness the person who administered the
test.
On
Thursday Senator Grassley started the farce by spinning so wildly
that it must have required a whole bottle of Dramamine to keep him
from puking. The utter nonsense he spun then became a litany almost
all Republicans (who probably passed on the Dramamine) would eventually
regurgitate because they had to say something to justify the camera
time. Ah but those senators were supposed to yield their time to
Rachael Mitchell, the female prosecutor who Grassley called an
“assistant.” Indeed Ms. Mitchell did all the questioning of Dr.
Ford. Unfortunately for the Republicans and Brett Kavanaugh, Dr.
Ford was a very credible and sympathetic witness. Her story was so
compelling that reporters described the ashen faces of Republican
senators who refused to answer any questions as they rushed through
the halls during the break that followed her testimony. Then came
the testimony of Brett Kavanaugh who began with a statement in which he
belligerently ranted at the process, disparaged and denied the
allegations and generally came over as a bully who, in spite of some
tears he shed over what might be his downfall, appeared to be the
sort of person who could sexually assault someone.
Still
Senator Grassley and some other Republicans held to their plan and
yielded their time so that Ms. Mitchell could question Mr. Kavanaugh.
Ms. Mitchell came across as calm and as gentle as one would expect on
direct examination. Her role in the hearing ended because the
Democrats pressed Kavanaugh about his denials and his drinking. They
also asked whether he wanted an FBI investigation of the allegations
against him so that he could clear his name. Kavanaugh refused to
answer that question, saying only that he would do whatever the
committee wanted. Senator Durbin then asked the question that broke
the camel's back. Senator Durbin pointed out white house counsel,
Don McGahn, at the hearing and told Kavanaugh to ask for the FBI to
reopen its investigation of Kavanaugh's background so that McGahn
could forward the request to President Trump. Kavanaugh refused to
do so or to say whether he wanted the FBI to conduct an investigation
to clear his name. The result of the questioning by Democrats was
absolutely devastating to Kavanaugh. This prompted Lindsey Graham to
demonstrate that whatever conscience he had has now been overwhelmed
by his political ambitions, and he set about hauling Trump's
injudicial water with an absurd political rant about the confirmation
hearing, delays in the process, and the smearing of Judge Kavanaugh's
good name. That was it, that is when all pretenses of comity were
dropped. The Republican senators stopped yielding their time to Ms.
Mitchell, and they started repeating ad nauseam the Republican Party's
litany of illogical and mostly false arguments and accusations.
The
Republican senators wailed and bellowed about unsubstantiated
allegations while refusing to call for an investigation of those
allegations. Many tried to defend that absurd refusal by quoting Joe Biden: "The
next person who refers to an FBI report as being worth anything
obviously doesn’t understand anything. FBI explicitly
does
not, in this case or any other case, reach a conclusion, period.
Period." The quote is meaningless. The FBI does not reach
conclusions but it investigates backgrounds and credibility all the
time, and it produces the evidence thus gathered so that it can be
weighed by the finders of fact. As stated above, the gathering of
evidence is the first step taken by anyone who wants to know the
facts. The Republicans obviously do not want to know the facts.
In
their partisan zeal the Republican senators even accused the
Democrats of acting like Republicans by trying to delay the
confirmation until after the mid term elections (they must have been
thinking of the Merrick Garland precedent). Furthermore, you have
to love Kavanaugh's oft repeated reference to “being Borked.”
Let me see if I understand this: Robert Bork was Solicitor General
under Nixon and was the only one in the justice department who had so
little moral fiber that during the Saturday night massacre Bork
actually carried out Nixon's order to try to end the Watergate
investigation by firing Special Prosecutor Archibald Cox. Okay, so I
think being Borked must mean not being confirmed because you have a
very serious character flaw that makes people think you are unfit for
the position. One could also say that about someone who sexually
assaults women!
What
the Republicans tried to pull off here is like telling us that we
should approve of a room they inspected at night without turning on
any of the lights because they can attest to the cleanliness of that
room. From the outside it appeared that Senator Grassley had the
votes to pass the confirmation on a strictly partisan basis.
Fortunately, Senator Flake was confronted by two ladies who were
sexual assault survivors. Those ladies had him trapped in an
elevator and made him listen to them. It was a dramatic moment
captured by cameras of the news media. While Senator Flake says that
the confrontation did not cause him to change his position in regard
to voting for the confirmation of Judge Kavanaugh something clearly
brought about an attack of conscience that surprised everyone. When
the senators gathered in the hearing room to vote on sending the
confirmation of Kavanaugh to the full senate for approval, Senator
Flake had a side bar with Democratic Senator Coons. After that
sidebar Senator Flake said he would vote for the conformation to be
sent to the full Senate but would vote against the confirmation there
unless there was an FBI investigation prior to that vote. In an
agreement he had reached with Democrats this investigation must be
completed in a week and must confine its scope to current
allegations. I wish the FBI was not kept on such a short leash, but
I have confidence in the ability and commitment of that agency to do
the job. The big question is what the majority party will do with
the evidence uncovered by the investigation! What we have witnessed
thus far is not encouraging.
