Losing The High Ground: Democrats Hit Kavanaugh With Anonymous Allegation Of Sexual Assault From High School

Below is my column in the Hill newspaper on the recent allegation of sexual assault against Judge Brett Kavanaugh and the demand for a delay in his confirmation vote.  Both Kavanaugh and the other man referenced in the anonymous letter have denied the allegations from their high school days.  The reported law professor who contacted Congress appears to want the allegation considered by members but has refused to come forward and said that she did not want to be drawn into the controversy.  If that was her position, Democrats have now done the opposite and leaked the letter’s details and called for a full investigation.  If this is a law professor, it is unclear why she is not willing to come forward with an allegation of a sexual assault.  She clearly thought that the allegation should be raised with Congress but has refused to come forward to substantiate the claims. That leaves Kavanaugh in a grossly unfair position in my view.  UPDATE: Kavanaugh’s accuser has now gone public.

Here is the column:

After years of polarizing and petty politics, we have finally come to this: The “world’s most deliberative body” could grind to a halt over a non-public letter from an anonymous person containing unspecified allegations against a Supreme Court nominee — about his high school years. It appears Democrats have possessed this letter since the summer, from a reported law professor who does not want to be identified. However, critics are demanding answers and a delay in the vote on nominee Brett Kavanugh.

With an expected vote on his nomination only a couple weeks away, Sen. Dianne Feinstein (D-Calif.) issued a statement that she had forwarded a letter to the FBI detailing possible sexual misconduct by Kavanaugh in high school. The last-minute allegations instantly brought to mind the confirmation of Justice Clarence Thomas, who faced a last-minute allegation from a former aide, law professor Anita Hill, of inappropriate sexual comments.

The analogy to the Thomas hearing is obvious and inescapable. Democrats were frustrated in their effort to paint Thomas’s views as outside the legal mainstream — the same strategy used four years before, in 1987, to block Robert Bork. Thomas, however, was selected in part due to his lack of a record in any published articles or remarks. Worse, he refused to answer core questions. The hearing’s lowest moment came when he was asked about his views on Roe v. Wade. Thomas said he really had not thought much about Roe — a statement as unbelievable as it was unresponsive. Nevertheless, he had sufficient votes for confirmation when NPR’s Supreme Court correspondent, Nina Totenberg, received a leaked Judiciary Committee/FBI report on Hill’s allegations. It was a classic “he said, she said” scandal that played out on national television. Thomas would be confirmed, but the country remained divided on whether he or Hill or both were lying.

The Kavanaugh hearings are different in one respect from the Thomas hearing: Kavanaugh has one of the longest, most detailed records of any modern nominee. The problem is that the Republican majority implemented an unprecedented level of restrictions over material, including a virtual blackout of material from when Kavanaugh served as White House secretary under former President George W. Bush. Many other documents were slapped with “Committee Confidential” status to prevent their public use.

Democrats had a legitimate objection to the percentage of withheld documents and the restrictive process imposed by the Republican majority. However, they lost that moral high ground in a series of missteps, from Sen. Cory Booker’s (D-N.J.) self-proclaimed “Spartacus Moment” to Sen. Kamala Harris’s (D-Calif.) misrepresentation of a statement by Kavanaugh about “abortion-inducing drugs.” Moreover, Democrats seemed to engineer confrontations over secret material by not requesting its release before the hearing.

In the end, the Kavanaugh hearings hit a new low in the lack of substantive discussion. The most damaging thing to emerge was Kavanaugh’s habit of putting ketchup on spaghetti. While that should be worthy of a denial as a culinary crime, the hearing was little more than Democratic posturing met by Republican platitudes.

Kavanaugh finished the hearings without a lethal wound. In the meantime, despite his obvious hostility to the interpretive rationale underlying Roe, senators including Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) appeared willing to vote for him solely on the basis of his referring to Roe as “settled law.”

That is when we suddenly started to hear about “the letter.” Feinstein was publicly attacked over her restrained performance as the ranking Democrat on the Senate committee, and then over holding on to the letter sent to her by Rep. Anna Eshoo (D-Calif.) about allegations made by a law professor. Despite reportedly holding a teaching position at a law school, this professor did not want to be publicly identified. Indeed, Feinstein said the “individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision.”  This leaves Democrats with a letter from someone who is reportedly recounting an incident from decades ago who presumably never made a formal charge, does not want to make a formal charge, and does not want to be identified or “press the matter further.”

If there was a serious offense by Kavanaugh, even as a high school student, we should know about it. His accuser would be entirely protected in bringing forward a credible allegation and, indeed, many would view her as obligated to do so if she is a law professor. Moreover, she is represented by Debra Katz, a leading lawyer in the “MeToo” movement. It is unclear why she would send a letter and retain an attorney, yet refuse to make an allegation on the record or to move forward after raising the issue. However, due to the leak and referral, the allegations are being discussed globally in the media.

This presents a situation far more unfair than the one faced by Justice Thomas.

Thomas was accused of improper conduct as a high-ranking federal official. He faced someone who was willing to be identified and to appear as a witness; he could and did respond to detailed allegations from someone who made her claims in public, on the record.

Kavanaugh faces an unstated allegation from high school, from an unnamed person who does not want to be identified despite reportedly giving the information to Congress.

In addition, this information reportedly was received in July — yet Democrats waited until two weeks before a Senate vote to leak its existence. If they were truly concerned about a victim or underlying sexual misconduct, why would they sit on the letter until now?

As Feinstein must have anticipated, the FBI has declined to open up a criminal allegation of an incident that allegedly occurred decades ago in high school. It simply sent the information to the White House.

I have been critical of the Kavanaugh hearing, and I do not agree with Judge Kavanaugh on various constitutional issues, including his troubling deference to executive power and privileges. However, there needs to be a modicum of decency and fairness in this process. Tossing anonymous, undetailed allegations over the transom shortly before a vote is a new low. Democrats have succeeded not just in losing the high ground but in bulldozing it flat with this attack.

The high ground in Washington always has been measured in millimeters, but it is getting harder and harder to discern, as politics chases the last residue of principle from the process.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

138 thoughts on “Losing The High Ground: Democrats Hit Kavanaugh With Anonymous Allegation Of Sexual Assault From High School”

  1. There is literally no way on earth the Democrats could ever lose the high ground to the pack of unethical jackals that we call Republican members of Congress these days. No way on earth.

  2. Marky Mark Mark – didn’t your mother or someone else’s mother tell you that if you cannot say something nice, not to say anything at all?

    BTW, I have begun to see that you insults are actually projections of your personal actions. We are learning so much about you Marky Mark Mark. You keep projecting your whole life in going to be on view to us.

  3. PONDERING BASEBALL CREDIT CARD DEBT

    My post from The Atlantic on Kavanaugh’s baseball spending made SPASTIC wonder if there wasn’t any fecal sandwich I wouldn’t eat. Like asking about that debt was insulting to Kavanaugh. Like the spending habits of Federal Judges are out of bounds in terms of inquiries. And anyone who asks is symbolically eating fecal waste.

    ALLAN assures me that men in his social class frequently buy tickets for friends and get reimbursed latter. Allan thinks no journalist considered that possibility. In Allan’s world journalists are always simple-minded.

    Here’s what Allan doesn’t get:

    Kavanaugh literally put tens of thousands on his credit cards for Washington Nationals baseball tickets. So taken at face value, Kavanaugh was going to every home game and bringing groups of companions at his own expense.

    Does that make sense for a Federal Judge?

    Kavanaugh is a father of school age daughters and a homeowner in Chevy Chase Maryland. Mrs Kavanagh works as a City Manager for Chevy Chase at $66,000 per year. A busy working couple struggling to stay upper middle class in a top tier market.

    So where does Kavanaugh get the time and money to treat groups of buddies to every home game? And is his wife okay with that? Her husband, a Federal Judge, and father to school age girls, keeps running off to baseball games and treating all his buddies!

    Wouldn’t Mrs Kavanaugh sit her husband down and ask why he’s treating all his buddies at their expense? ..Of course she would..!! Something isn’t right.

    I think those baseball tickets were hidden charges for something else.

    Or Kavanaugh is a carefree spend thrift riveted by baseball.

    1. Peter Hill – the way it works is that maybe 20-30 couples will chip in for the tickets and then they take turns using the tickets. They don’t each go to all the home games. However, somebody has to be the “frontman” and buy the tickets originally. Then they split up the dates they are going to use the tickets and then the “Frontman” gets his money back, except for his part of the tickets. Of course, he got screwed for the interest while the late payments were coming in.

    2. “ALLAN assures me that men in his social class frequently buy tickets for friends and get reimbursed latter. Allan thinks no journalist considered that possibility. In Allan’s world journalists are always simple-minded. “

      That a lot of journalists are simple-minded is beside the point. Many are and demonstrate their simplemindedness on a daily basis. I have no problem with wondering where the money came from until I find that the one’s repeating that statement never looked at the man’s books.

      Peter Shill keeps saying the same things, but doesn’t get into the details to demonstrate any wrong doing. The only thing Peter Shill has is mindless accusations against anyone who is from a different ideology. These accusations generally have to do with money and sex. Peter links them together. Maybe Peter is a pervert based on his constant focus on these two things. Maybe he should be thrown off the list for being a pervert because he hasn’t proven he isn’t.

      By the way where do you get the idea that Kavanaugh treats his buddies to tens of thousands of dollars in tickets? What proof do you have that he did anything wrong? You sound like a pervert. Which way is it Peter. Sex and money, sex and money, sex and money occupy your time. Do you pay a woman for sex or does someone pay you?

      1. See Steven Sailer on Barack Obama’s revolving debt, ever expanding prior to 2005. I’m sure Peter Hill’s head is wired to explode at the sight of the character string ‘Tony Rezko’.

  4. As far as Clarence Thomas, I believed Anita Hill’s account. It was iconic and detailed, and that stuff you just can’t make up. However, to me it wasn’t disqualifying.

    If the Kavanaugh confirmation leaves as its legacy that SCOTUS backs away from the activist pseudo-legislative role demonstrated in Heller, Citizens United, Obergefell, and Roe, and Congress has to take responsibility for major policies, then we all win. Except for the activists within both parties who are counting on SCOTUS to act as surrogate legislators.

    1. As far as Clarence Thomas, I believed Anita Hill’s account. It was iconic and detailed, and that stuff you just can’t make up.

      Oh yes you can, sucker. That aside…

      See Thomas Sowell on her account. There were no temporal or situational markers which could be cross-checked. There were in the testimony of Susan Hoerchner, but these markers discredited Hill’s account, because they indicated that Hill’s work related problems occurred before Hoerchner had moved to California. Hoerchner’s move to California occurred before Hill had landed a position on Thomas’ staff.

      I’d refer you also to The New Republic‘s contemporary reportage on the imbroglio. The author said he’d been expecting that most of those he interviewed at the EEOC and the Department of Education who’d worked with Thomas and Hill would side with Thomas. He wasn’t prepared for the margin: about 20 to 1 for Thomas. Keep in mind that some of the people who testified for Thomas were career federal employees, not patronage employees. The people who worked there weren’t witnesses to any private conversations, but they were people who’d seen how he behaved in the office, how she behaved, and how he’d interacted with her in meetings.

  5. Your desire to hang on to your Fox “talking head” status has affected your judgement. “High ground” have you been paying attention for the last 20 years?

  6. Another example…Texas Senate candidate Rob ‘Beto’ O’Rourke has a criminal record that includes burglary and DWI. He caused a serious drunk driving accident when he was 26 years old. He fled the scene and his daddy the judge got him off. Why should he get a pass for his reckless drunken and criminal behavior as an adult and be voted in as Senator? He shouldn’t.

  7. Again, this is JT with deflection because he won’t write about how Kavanaugh at his core is and will be a political operative. As he was with Ken Starr. Republicans will not release records from his days with Dubya, and William Pryor “Memogate” his direct involvement with wire tapping program under Dubya. Conflicting statements on Roe v Wade. His 180 on indictments with sitting Presidents, As with his actions as a young man, all I can say is, if true, is it’s a good thing he did not grow up in my neighborhood because if any one of us heard even a whisper of some guy forcing himself on somebody’s sister, cousin or any female they would have found themselves in a world of hurt.

    1. Part of the credibility lent to Kavanaugh by the letter signed by 65 women who knew him in high school is that IF some sort of sexual assault happened as alleged, and that traumatized teenaged girl then told one or two friends about the trauma of the incident, that gossip would have spread around. “Did you hear what happened to so and so at the party last weekend by so and so…” And at least some of these girls who knew Kavanaugh during his high school years would have heard the gossip – whether true or not, embellished or not. Also, something ‘terribly traumatic’ for one girl, may be just ‘boys being boys’ to another girl.

      1. I think your last sentence identifies the issue. According to the alleged victim’s report, she felt trapped and in great fear of being raped. After she got away, she hid in the bathroom with the door locked until they were gone. But she could hear Kavanaugh and his friend decedending the stairs, laughing and banging on the walls like they’d just had a great ol’ time. She says she spent years in therapy to deal with it, while he (according to him) doesn’t even recall it, and if he does, apparently just passes it off as teen-age hi-jinks. But it wasn’t a joke to her, it was a defining moment of her life. So should we view the crime from the perspective of the victim or the victimizer? Maybe it made him feel macho, but it traumatized her. I worked with a man who was gang raped, basically pulled off the street at random in N.Y. and gang raped by strangers as part of a gang initiation. He moved to Calif but remained traumatized 20 years later when I met him. Anyone who thinks rape or near rape is no big deal should meet someone who has been through it.

        1. She says she spent years in therapy to deal with it

          Again, she’s presenting herself here as someone who is too loosely-wired to be trustworthy. No normal person would spend 50 minutes in ‘therapy’ over this sort of thing.

          1. DSS – she is either the frailest of snowflakes or loosely-wired. I can go either way. Something is really wrong with this story. Remember she revealed to her husband during couples therapy. Why?

        2. Anything is possible, but it sounds like BS. Too many years have passed and that is why we have a statute of limitations. I doubt any of this about Kavanaugh is true and if she needed therapy then likely she had a lot of problems already in existence. This claim is to lame.

        3. You know what TIN, I do understand the seriousness of rape, but in this instance, I’m not buying it. The allegation is that Kavanaugh got drunk at a high school party and it went too far and the experience frightened her. That is not the same thing as ‘being raped’ or even ‘almost being raped.’ She was frightened; that’s what happened. My personal feeling is that in no way do I believe something like this –IF IT ACTUALLY HAPPENED in the way she alleges– should derail an otherwise stellar reputation and career. No way.

          And if this is enough to derail Kavanaugh, then what we know about Robert “Beto” O’Rourke in Texas should absolutely derail his campaign for senate.

          And if this allegation is enough to derail Kavanaugh, then what we know about Keith Ellison and the 911 recordings of the very serious allegations of domestic abuse and slapping his live in girlfriend around should absolutely derail his quest to become Attorney General in Minnesota.

      2. TBob – you make a good point. Remember that scene from Bye Bye Birdie where the kids are doing ” The Telephone Hour”?

            1. Paul, that’s a perfect illustration of exactly what would have happened IF the traumatized girl told one or two friends. And you know she did…that’s what normal teen girls do. It would have been gossiped about and spread amongst the party-goers and the rumor mill with kids from the various high schools. Bethesda is a small town and word gets around. All those 65 women who knew BK in high school and put their names on a letter attesting to BKs character would have at least heard “the rumors” or “the gossip” about it if it was that traumatic at the time for the accuser.

              1. TBob – glad it played. 🙂 I came from a small town (9500) and something like this would have been known by everybody in the school by Monday. A few of the teachers would have known by Tuesday. 😉

              2. Bethesda is a small town

                Local government in Maryland is in the hands of the Counties. Municipal government is supplementary and IIRC, about 85% of Maryland’s population lives outside of incorporated municipalities. Montgomery County at that time had about 600,000 residents. There might have been about 90,000 people living in the Bethesda / West Bethesda / Chevy Chase Zip codes.

  8. If this allegation is true, on a scale of one to ten it is not above a five. Alcohol, ego, out of control hormones equal experiences like that for a substantial number of teenagers; many of whom go on to leadership roles. This happens primarily because of social deficiencies that are slowly evolving out of the field of what is permissible, honorable, normal, allowable, or progressive/left etc; label it as you wish. Since this alleged incident there has been no indication that Kavanaugh has developed into a womanizing, groping, type like our President of these here United States of America, or a previous President on the Democrat side. Next to Trump and Clinton, Kavanaugh is a saint. This evolving to understand the sexual drives and adapt them to a serious respect for others is a work in progress and carries with it many examples of failure. The representatives elected by the people or oligarchs in all levels of government would be decimated if those guilty of what Kavanaugh allegedly did were to be ousted.

    That political bias is involved is a given. If Kavanaugh did sexually attack a girl in high school, compare it to Thomas who was sent on to hold a seat on the court; compare it to Bill Clinton who was openly acknowledged to be a womanizer and alleged sexual threat; compare it to Donald Trump who openly admitted to abusing women and is perhaps the most disgusting example of all.

    Then compare this to Al Franken who resigned having been proven guilty of adolescent sexual antics which, although they were stupid and demeaning to the girl, did not involve physical threats of any sort. As stupid and wrong the antics performed by Franken were, they pale in face of the sexual transgressions of our President.

    If it can be proven that Kavanaugh did sexually assault a woman when in high school, he should be bounced as per the bar established by Franken. If he is admitted to the court then it should only come after a complete apology by Kavanaugh. The measure of the person is the acceptance of human fallibilities. One can admire a person’s learning curve and in the case of a Supreme Court Justice, learning is the primary and most necessary ingredient. Kavanaugh has expressed that certain levels of government should be exempt from more human fallibilities than are the public. If it is solidly established-it can never be proven, especially with lawyers-that Kavanaugh sexually assaulted a woman and he refuses to admit it, take responsibility and do the honorable thing at the very least apologizing, then he will be that person that extends a more dictatorial power to the Presidency as well as other levels of government. This was not the intention of the founding fathers. We have a two party system where we are presented with two bought and paid for choices and we pretend to pick one; a choice between one of two, one more than a dictatorship. Does this dictatorial potential need any more encouragement?

    Regardless of whether or not one is left or right, progressive or regressive, Democratic or Republican, this erodes that sacred ‘check and balance’ system that is supposed to be universal. It does not exist in the election to the Congress or the Senate. It does not exist in the election of the President. It does exist to some degree more in the Supreme Court, for now. Unfortunately Kavanaugh cannot be denied for the one overwhelming reason that he is a threat to the ‘check and balance’ structure of American politics and government. Unfortunately the precedent has been set by Presidents and other representatives, religious leaders, moguls, oligarchs, etc that he will be admitted regardless of what he did or didn’t do as a teenager.

  9. If this is the standard for disqualification, then Rep. Keith Ellison, Deputy DNC Chair, who is running for Minnesota Attorney General and who has been credibly accused of domestic violence for slapping his girlfriend around should be getting much more attention in the media. If Minnesota votes to make him Attorney General, then shame on the Minnesota voters.

  10. Oh for God’s sake, the dems have never taken the high road. Ted Kennedy and Mary Jo Kopechne anyone? Poor poor proletariat Ocasio-Cortez and her $3500 suit. Just walk away. I did years ago. The dems disgust me.

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