Below is my column in the Hill newspaper on the unfolding controversy surrounding the allegations of attempted rape leveled against Judge Brett Kavanaugh. The Republicans have called for a Monday hearing with both Dr. Christine Blasey Ford and Kavanaugh. However, while saying earlier that she was prepared to testify, the Committee said that Ford had not responded to multiple invitation. She has called for an investigation before she will testify — a condition that is difficult to square with her earlier statements via her counsel. In the meantime, Democrats have objected that more witnesses have not been called, including Kavanaugh high school friend Mark Judge. Judge however has indicated that he would refuse to testify. In other words, this is a complete mess.
Here is the column:
Washington is bracing for a showdown over the confirmation of Judge Brett Kavanaugh for the U.S. Supreme Court, following the belated disclosure of a letter alleging an attempted rape when he was a high school student. Republicans are crying “smear,” while Democrats are crying “coverup.” Neither side is particularly convincing in their outrage, given their positions on earlier scandals. The challenge is to address the serious issues raised by the allegation through the screen of feigned mutual outrage. That leaves only one real option: public hearings.
Dr. Christine Blasey Ford came forward as Kavanaugh’s accuser. She alleges that he attacked her when they were teenagers (he was 17, she was 15) in high school. Ford alleges that Kavanaugh was drunk at a small party in Maryland and forced her into a bedroom. She says he tried to tear off her clothes while holding his hand over her mouth; she further alleges that Kavanaugh’s friend, Mark Judge, witnessed the act, which stopped only when Judge jumped on the two of them. Both Kavanaugh and Judge vehemently deny the allegation.
What Ford describes is an attempted rape, which should be a serious matter for investigation regardless of when it occurred. Ford has offered little corroboration beyond her discussion of the incident in 2012 during marriage counseling (an account recorded by the therapist without reference to Kavanaugh by name). She has taken a polygraph, which her lawyer claims showed she spoke truthfully about the account.
While financial scandals have plagued past Court nominees from the earliest days of the Republic, this is the first time that a nominee has been accused of attempted rape. Clarence Thomas was accused of sexual misconduct but not actual sexual assault; ultimately, that matter was left unresolved by the differing accounts, and Thomas was confirmed by a 52-48 vote.
Before any hearing, of course, more political posturing and prevarication must occur. It is a good thing there is not a Doppler radar for hypocrisy, or Washington would be in the midst of a mandatory evacuation.
The Democrats
During the years of Clinton scandals, many of these same Democratic members and commentators refused to accept the accounts of multiple women who came forward to allege sexual assault and rape by then-President Bill Clinton. All of the members insisting this week that we must believe women such as Ford refused to believe women like Paula Jones, Juanita Broaddrick and others. Democratic members in the House and Senate virtually unanimously opposed both the impeachment and removal of Clinton. They remained silent as the White House and Hillary Clinton attacked these women as “bimbos” and losers. Democratic members in both houses ultimately insisted that lying under oath and in public about an affair with a White House intern was a personal, not an impeachable, matter. Even after the Clinton administration, these same people flocked to join Bill Clinton at public events.
Democrats also have not explained the timeline of this controversy. Sen. Dianne Feinstein (D-Calif.) insists she did not release the letter after receiving it in July because Ford stated categorically that, according to Feinstein, “she did not want this information to be public.” However, Democrats proceeded to do precisely the opposite of what the alleged victim requested: They leaked the letter and forced her into a public scandal. The timing proved fortuitous. By waiting until just before the vote, Democrats likely could force a new set of hearings and, if Kavanaugh is defeated or withdraws, would make it unlikely that a new nominee could be confirmed before the midterm elections – precisely what Democrats have been striving to achieve.
The Republicans
With Dr. Ford, Republicans now question why a matter of alleged sexual assault from years earlier should be considered. These are the same members who demanded accountability for Clinton and, later, Sen. Al Franken (D-Minn.). Indeed, Kavanaugh himself was previously adamant that such allegations should be addressed publicly and vividly.
When he worked for independent counsel Ken Starr, Kavanaugh wrote a memo entitled “Slack for the President?” The answer was decidedly no, according to Kavanaugh, who wanted Clinton questioned about specific graphic acts that he committed during his affair with Monica Lewinsky. He insisted “our job” is not “to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece.” He insisted: “The idea of going easy on him at the questioning is thus abhorrent to me.”
Kavanaugh now faces calls for public hearings to go into precisely this type of detail. While Republicans may try to force closed hearings for both Ford and Kavanaugh, it would run against the precedent set in the Clarence Thomas hearings, where both parties testified publicly before the Senate committee.
Kavanaugh’s high school friend, Judge, also is likely to face tough questioning, if he is called. He wrote a 2005 book, “God and Man at Georgetown Prep,” that describes a reckless, booze-soaked environment at the prestigious prep school. In his 1997 addiction memoir, “Wasted: Tales of a Gen X Drunk,” Judge paints a less-than-flattering portrait of his struggle with alcohol. In these accounts, Judge describes being “completely annihilated” after parties and even waking up with no memory after blacking out. That does not make for a particularly compelling fact witness, and his personal account mirrors the conduct described by Ford.
So where does this leave us? With a tough decision that will come down to a judgment of character.
Both Ford and Kavanaugh should be closely questioned on their accounts and any conflicts that arise in that testimony. No one has a “right” to be believed. They have a right to be heard and fairly considered. Both of them.
So here is an idea: Let’s stop the manipulation and hold a public (rather than a closed) hearing; closed hearings allow testimony to be filtered through these same conflicted politicians. Ford and Kavanaugh have the right to respond to public attacks with public testimony. Otherwise, both will be savaged by leaks and spins in biased third-hand accounts. Given the absence of witnesses, it is unlikely that either account will be proven or disproven. That leaves this as a matter of credibility, a judgment that can only be made by the public if they see the actual testimony of these two individuals.
In the end, 11 Democrats felt that the allegations against Thomas were not sufficiently corroborated to justify a denial by the Senate. It took courage for those Democrats to take that stand. The same may be true with Kavanaugh – or it may not. The only thing that is clear is that we are unlikely to reach any clarity or consensus without a full public hearing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
Since it has already gone this far, I believe that everything should be aired in public. The idea of a closed-door hearing is as bad an idea as the way the Muller team is “investigating” Russian collusion with Team Trump.
I don’t know what the result of the hearing will be, and I don’t have any idea what the truth is. However, the idea that this letter was sent by the complainant with instructions that she did not want it made public is concerning. That is something someone would say if they were planning a hit-and-run attack: Send the letter, hide behind a plea for anonymity, and refuse to testify about it. If that was the intent, then to what purpose? Would it be just to plant this information into people’s minds about Kavanaugh so that he would be forever tainted and unable to defend himself? The idea that “the accusation is equal to the offense (allegedly) committed,” does not adhere faithfully to our legal system.
I would like to hear the testimony offered by both Kavanaugh and Ford. But barring anything severely criminal, I have already decided how I would vote.
It’s shameful what the democrats are doing to this guy. It makes me sick to see what they have done to our country simply to cover up what was done during Obama and out of blind hatred of Trump. Anyone that supports democrats or votes Democrat is not an American.
I’ve never voted for a Republican candidate in my life for any office–but I am seriously considering voting straight Republican in November because of this case and also the Russia collusion nonsense. Destroying someone’s reputation, denying them a job they are well qualified for and possibly even denying them their freedom on the basis of a decades old, completely unsupportable allegation is a very big step towards fascism, which liberals claim to be gravely concerned about.
What was this 15 year old doing at a party while the others were drinking? Yes, she was probably drinking too. And my God how far are we going back? I had a 10 year old boy push me off my bicycle when I was nine. Call the police, I still have the scar on my knee! This is a witch hunt against men. YES, boys and girls have been known to act improper. I know each and every one of us have done things we would not want others to know about. Let’s look at the life, not one incident.
Fine, Let’s just put you in the column that says it’s okay for an older boy to hold your daughter down by laying atop her on a bed, while trying to rip off her clothing and covering her mouth to mute her screams for help–while his friend turns up the music to drown out her screams.
this is to “mother of the year” marlene
Peter Hill says: September 18, 2018 at 12:33 PM
Bob, if one wanted to argue, just for the sake of arguing, they could say the treatment Republicans gave Merrick Garland was every bit as atrocious and dishonorable.
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Peter Hill – Here is Joe Biden himself invoking “the Biden rule”…as I previously commented, McConnell beat them at their own game and they can’t stand it. So let’s quit the whining about the unfair treatment of Merrick Garland already. The Dems got a taste of their own playbook being used against them and they don’t like it. It’s only okay when the Dems do it, right?
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BIDEN: Should a Justice resign this summer and the President move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.
Mr. President, where the Nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not–and not–name a nominee until after the November election is completed.
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
https://www.realclearpolitics.com/video/2016/02/22/biden_in_1992_bush_should_not_name_a_nominee_until_after_the_november_election.html
HERE’S WHAT BOB ISN’T TELLING US:
1) There was no vacancy to fill
2) There was no nominee to consider
3) Biden never said no nomination would be considered
4) Biden only called for a delay until after the election (not until a new president was elected).
https://www.politifact.com/truth-o-meter/article/2016/mar/17/context-biden-rule-supreme-court-nominations/
Here’s the point:
1. Under our Constitution, the President has every right to make a nomination, and the Senate has every right not to confirm a nominee.
2. The Democrats themselves, including Obama, Biden, Clinton and Schumer, have stated as much — that the Senate does not have to confirm presidential nominations in an election year.
3. Unlike the grandstanding Dems who said, on the day his nomination was announced, that they would vote ‘no’ on Kavanaugh, but then screamed to the press about all the documents they did not receive that they needed to see in order to give full consideration to the nominee they had already said they would vote ‘no’ on — McConnell simply cut out the charade of holding hearings with Garland that would have been just political theatre, and he held the line until after the election — an election that Hillary Clinton was a shoe-in to win.
4. I find that to be fair enough. If the situation were reversed, the Dems, under Harry Reid, would have done the same thing. Count on it.
5. Like I said, McConnell played their game and beat them at it and they can’t stand it.
6. In this Kavanaugh situation, the R’s need to do the same.
7. Hold the line and hold a vote this week.
8. Do not capitulate!
Bob, what’s the hurry?? Kavanaugh deserves to have his name cleared. I wouldn’t want that seat if my name was forever clouded. There’s no reason to rush his nomination. Clearing Kavanaugh’s name should be Priority # 1.
Kavanaugh deserves to have his name cleared.
Did you eat paint chips as a kid? K’s name is cleared by those that want him confirmed. It will not be cleared by those that don’t want him confirmed. Period.
Olly, you already used the paint chip ‘joke’. And if K’s name is cleared by only those who want him confirmed, then he’s not really cleared; he’s only rushed before the midterm elections. And that won’t look good for Republicans who are already in trouble with suburban women voters.
It wasn’t a joke. And you still haven’t answered the question.
If K is confirmed, he will have completed the process followed by every member of the court. So not rushed, just inconvenient for those that don’t want him confirmed. Any suburban woman that hasn’t eaten paint chips as a child will see through this charade in a nanosecond. All others are likely to vote D anyway.
Olly, I half-hope the Republicans rush Kavanaugh through. They will suffer blowback from women voters in November.
PH:
The women will come around in an election cycle or two once their paychecks start to shrink and Cavanaugh will be deciding for two or three decades. Fair trade.
I half-hope the Republicans rush Kavanaugh through.
I’m going with yes, you did eat paint chips as a child, because you are very slow.
You really have a penchant for treating events that have already happened as if you were the first to discover them.
Please try reading this sentence very slowly…and as many times as it takes for you to understand it:
The process to confirm Brett Kavanaugh for the United States Supreme Court was completed as scheduled with the vote originally scheduled for tomorrow. Extending the vote beyond the original date is the opposite of rushing it through.
They will suffer blowback from women voters in November.
Well good thing we’ll no longer have an activist court for decades to support their madness.
You’re welcome!
“What’s the hurry?? Kavanaugh deserves to have his name cleared.”
No, what Kavanaugh deserves is the presumption of innocence against a flimsy decades old accusation that reeks of political motive.
He has now become ‘guilty by accusation’ and is being told HE IS RESPONSIBLE for CLEARING HIS NAME?! She can just launch an unsubstantiated allegation like this and we should all protect her reputation and giver HER the benefit of the doubt, but not Kavanaugh? Bull f’n sh*t.
We can all see that you got the talking points memo and are now regurgitating the party line. What’s the rush? Kavanaugh wouldn’t want to become a SC justice with a blemish, tarnish, cloud over his name and reputation, now would he?
And to that I say to the Republicans: do not capitulate!
It’s not that important, but it should be noted that nominations within 1 year of a presidential election are unusual.
1. Merrick Garland (2016, ignored by the Senate).
2. Abe Fortas (1968, withdrawn in the face of resistance)
3. Wm. Brennan (1956, recess appointment; renominated January 1957).
4. Benj. Cardozo (1932, January; couldn’t have been considered prior to December 1931 under the old congressional session schedule).
The comparison of Dems and Reps. on this issue is not valid Mr. Turley. The alleged actions of a high school kid, who has led an exemplary life for the past 35 years is not in the same category as a sitting President, whose life is littered with questionable sexual behavior diddling around with a young intern in the White House.
the sexual crime of Clinton was not playing games with an enthusiastic intern, that should have never been an issue for anybody, what a huge waste of time that was,,, rather it was when he was governor that he allegedly raped Juanita Broderick
https://www.vox.com/2016/1/6/10722580/bill-clinton-juanita-broaddrick
Once again JT shows his bias by repeatedly referring to Dr Ford while repeated referring Kavanaugh with no title. Subtle but pervasive.
disrespect a man, no problem
disrespect a lady perfessor, wow, pussy hat protests sprout like mushrooms
hey, if i have a JD can I be called “Doctor” too?
Herr Doktor Kurtz, I like the ring of it!
I see you more as Grand Poobah! 😀