Capitol Kangaroo Hearings

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.