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A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing

440px-Judge_Brett_KavanaughBelow is my column in USA Today on the different outcomes possible in the ongoing Kavanaugh controversy.  These scenarios have become more complex after a hearing was schedule for Monday and then Dr. Christine Blasey Ford announced that she would not appear.  She has declared that the FBI must investigate her allegations of attempted rape as a condition of her testimony.  What is clear is that the last minute allegation has galvanized the Democratic ranked, including Missouri Sen. Claire McCaskall.  Obviously, if Ford does not show up at the hearing the GOP could use the refusal as a basis for treating the allegations as unproven and proceed to a vote on the merits.  If she does show up, Kavanaugh is likely in for one of the most brutal hearings in history.

Here is the column:

Christine Blasey Ford is about to enter the political lexicon of Washington with other names that embody the cathartic scandals that define this city. Like many, she is reportedly a reluctant addition to the list with figures like Anita Hill. While she expressly asked that the Democrats not move forward with her allegations, Democratic operatives reportedly leaked her letter after Judge Brett Kavanaugh seemed set for confirmation in a matter of a couple of weeks. After the leak, Ford felt compelled to come forward and will now find herself in the center of a maelstrom of Beltway politics with a key Supreme Court seat at stake.

Ford came to the controversy willingly but anonymously. She reached out to Congress to have members consider her allegation that Kavanaugh, in high school, attempted to rape her. The alleged sexual assault occurred at a small gathering of teenagers at a Maryland home. Ford says she went to use the bathroom when she was attacked by Kavanaugh and pulled into a bedroom. She says he held his hand over her mouth as she tried to scream and tried to pull off her clothes and bathing suit. She says the assault ended when Kavanaugh’s friend, Mark Judge, jumped on top of them and knocked Kavanaugh to the floor. She says she then ran to the bathroom and locked herself in. She says that both Kavanaugh and Judge were drunk, and that she eventually fled the party.

The ‘she’ in the ‘he said, she said’ controversy

When this story broke, many of us expressed our concerns over the fairness of the last minute allegation. After all, the Democrats had this letter since July and then decided to leak the letter (against the apparent wishes of Ford) on the eve of Kavanaugh’s vote. The delay effectively ran out the clock for the Senate if the White House had to put forward a new nominee before the midterm elections. The Republicans could well lose the Senate with the House in November. Had the letter been leaked in July, the White House could have either tried to blunt the impact or replace the nominee.

Now, even if it were inclined to dump Kavanaugh, it would be hard pressed to advance another nominee in time to beat the rapidly closing calendar. Kavanaugh is its only pre-election option, and the White House appears ready to go “all in” on confirmation.

Until Sunday, this calculus was easier when the allegation was nameless and faceless. We now have a “she” in this “he said, she said” controversy. She’s willing to testify, which means that he will be expected to respond — just as Clarence Thomas was compelled to address the allegations of Anita Hill.

With the announcement that Ford will testify, Kavanaugh’s already slim majority appears to be evaporating. Sens.  Susan Collins and Lisa Murkowski were already under fire for leaning toward confirmation despite their pledges to vote against an anti-Roe nominee. They and other Republicans now want to hear testimony, and it is hard to see how Kavanaugh could maintain his majority at the end of that process.There are only three ways that such hearings can play out:

The ‘A Few Good Men’ scenario

Republicans could try for “A Few Good Men” scenario that try to break Ford at the witness table like the famous “you can’t handle the truth” scene. However, Ford is not some powerful, snarling Marine general but an alleged victim of an attempted rape with an accomplished career as a university professor.

Nevertheless, they could try to impeach Ford. Republicans could question why she does not have a single contemporary witness beyond Judge, who vehemently denies the allegations. They could press her on the absence of a single friend with whom she confided or a record of seeking legal or medical assistance before 2012. They could also press her on any coordination or knowledge of the leak of the letter. Finally, they could question why the only record of her discussing the attack occurred during counseling sessions with her husband despite the fact that Kavanaugh had been much in the news with his earlier confirmation to the D.C. Circuit.

Republicans are concerned with midterm voters

The problem is that this is not a few good men but all men on the Republican side. On an all-male GOP bench on the Senate Judiciary Committee and a GOP struggling to retain dwindling numbers of women voters, the optics could not be worse. Moreover, many young women are reluctant to tell people about such attacks, and the silence of Ford is not dissimilar from other accounts in the “Me Too” movement.

‘The Caine Mutiny’ scenario

The second scenario is a type of “The Caine Mutiny” where, like Capt.  Philip Francis Queeg, Kavanaugh breaks behind the witness table by appearing uncertain and paranoid. Kavanaugh has already weathered a heated confirmation hearing without a misstep and previously prepared witnesses for such hearings. But this is different.

While Republicans will likely be reluctant to hammer Ford, the Democrats will have no such hesitation with Kavanaugh, who will be asked about underage drinking and relations in high school. His friend, Mark Judge, has written a book that describes drunken out-of-control parties and describes himself as essentially a blackout drunk during this period.

A tie scenario

The third option is no better for Kavanaugh. This cannot end in a tie. Either Ford has to be discredited, or the matter is left to credibility judgments. The public is likely to find Ford’s account more compelling, particularly if Republicans are leery of pressing her account or veracity. As in trial, there is no half-way option in seeking to impeach a witness alleging sexual assault. Either she is a liar or a victim. If you leave it somewhere in the middle with a jury, your client is likely to be found guilty.

In the end, Kavanaugh could be looking at a considerable challenge toward confirmation. He is relying on politicians who are already looking over his shoulder at the approaching midterm elections. It is their demise, not his, that they are worried about. Kavanaugh does not want to find himself in the balance between a senator’s future and his own. But that is precisely where this could be heading.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley

106 thoughts on “A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing”

  1. Pingback: AZ Sex Crimes Prosecutor Hired To Question Ford and Kavanaugh – 5 Fast Facts You Need to Know – MyLegalHelpUSA

  2. ANONYMOUS REMINDED ME..

    THAT KAVANAUGH IS INNOCENT UNTIL PROVEN GUILTY

    THIS WAS MY RESPONSE

    You’re right, Anonymous; Brett Kavanaugh is innocent until ‘proven’ guilty.

    And I should note that a year ago I was skeptical of ‘Me-Too”. Which infuriated my liberal Facebook friends. I felt that ‘Me-Too’ short-circuited Due Process. And I was afraid that public shaming would become a national sport making this country meaner.

    But when one scrutinizes Blasey, she wouldn’t seem to have a need for money or attention. She’s an accomplished academic living what sounds like a good life in Greater San Francisco. Injecting herself into an explosive political fight is guaranteed to bring her truckloads of hate mail!

    One should note that victims of Alex Jones have had to practically seeks witness protection from Jones’ followers. Even people with the same names as Alex Jones’ victims have been harassed by lunatics.

    Blasey has resigned herself to years of harassment. Just today Alex Jones was featuring pictures from her high school yearbook. Who in their right mind wants that attention?! Blasey is now a walking target for any crazed conservative!

    But even if Blasey fails to substantiate her case, she has shed light already on Kavanaugh’s past. It appears he ‘was’ wildly drunk many times as a teenager, and during his college years. That’s all Blasey has to prove in the court of public opinion.

    And it may turn out that Kavaugh committed acts of vandalism; which is not uncommon for drunken teenage boys. Or we might learn more about those baseball tickets Kavanaugh put on his credit cards. Said purchases far exceeded top tier season tickets. Those transactions could be a clue to something peculiar.

    So even if Blasey gets nowhere in her sexual assault allegations, it’s hard to see how Kavanaugh triumphs. Republican Senators are visibly lop-sided in male domination. And Trump himself has been the subject of multiple sexual complaints Those on top of a affairs with a porn star and a Playboy model.

    The Republicans were already in trouble with suburban women voters. Kavanaguh / Blasey could be a tipping point.

    1. well, maybe so, or maybe this tempest will scare the bejeezus out of men who will all now vote Republican. do Democrats think they can win if their share of men’s votes goes down to 10% let’s say, roughly the gay population? and yes a lot of gay men are actually Republicans not just the troll Milo

      Dems may have just shot themselves in the foot. they were not polling well with men in the first place. personally, i think they are all to strident and overly exercised about Hillary to step back from the brink. I am here to say, why hold back now Dems? Let slip the dogs of war! We welcome it

      1. About 2% of the male population is homosexual in an uncomplicated way and another 2% have some inclinations in that direction.

    1. Bob, Did you ever notice that Trump looks like The Joker?

      I mean how many men in their 70’s have yellow hair and orange make-up?

  4. “If she does show up, Kavanaugh is likely in for one of the most brutal hearings in history.”

    Nah. What would happen is that she would make a fool of herself and her backers. Kavanaugh wants to have a public hearing now. She’s the only one playing games. This doesn’t end well for the Dems.

  5. The Republicans don’t care if he tried to rape Ms. Ford or if he raped her and 40 other women. They want their boy on the Supreme Court and raping women isn’t a bar as they see it. Women don’t matter. Veterans don’t matter. Seniors don’t matter. Workers don’t matter. All that matters is that their big donors and Trump get what they want.

    Say what you will this is the truth. I’m sick of of the lies. Criticize me and call me names go ahead. I don’t care.

  6. ALL ABOUT CHRISTINE BLASEY FORD

    Today The New York Times presents a very detailed bio on Christine Blasey Ford. Kavanaugh supporters will be chagrined that she comes across as highly accomplished with no apparent need for money or attention.

    ‘Chrissy’ as she was known, was a very bright and popular student at her prep school which frequently socialized with Kavanaugh’s prep school. However friends noticed that she kept a much lower profile after the alleged incident with Kavanaugh. Though none of her classmates knew at the time about said incident.

    Blasey attended college at Chapel Hill North Carolina where she continued to keep a fairly low profile. Blasey then moved to California and pursued graduate studies at Pepperdine, USC and Stanford. In California Blasey developed a love for surfing which she continues to enjoy with her husband and two sons.

    In her academic career, Blasey is known as a ‘super geek’ obsessed with statistics. She co-authored a book for academics on how statistics should be used. Blasey’s husband, since 2002, is an engineer. The couple appears affluent with ‘two’ homes in Northern California.

    https://www.nytimes.com/2018/09/19/us/politics/christine-blasey-ford-brett-kavanaugh-allegations.html?emc=edit_th_180920&nl=todaysheadlines&nlid=541097980920

    1. they had a great life. she volunteered. or did she? maybe the Democrats are just using her

      her life will never be the same; not that the Dems care

      divorced within 2 years, bet on it

      1. Kurtz, she doesn’t sound like anyone who’d let herself be used. And I think that her calls for an FBI investigation demonstrates that she has some degree of savvy. Ford doesn’t want one on one testimony that would put her in a ‘He Said, She Said’, situation. That wouldn’t be satisfying to anyone.

        But you’re right, Ford’s life will never be the same.

          1. Kurtz, The N.Y. Times article mentions that her high school yearbook featured numerous references to drinking. Apparently Kavanaugh’s school yearbook featured those references as well.

            I would imagine the school itself scrubbed those photos from the yearbook. Probably ‘because’ they didn’t want those pictures bandied about on hostile right-wing media outlets. The other girls pictured might be very prominent now and they don’t want their images on Alex Jones’ website. Who blame them?!

    2. NYT? That’s not a news source, that’s another propaganda outlet run by a Mexican King Pen Carlos Slim engaged US’s internal/external politics like the Wapo, CNN, etc….

      But now we are all starting to see what this nice West Coast Commie/Lib lady does when she’s not surfing with the family, murdering the unborn for profit.

      “Kavanaugh accuser Christine Blasey exposed for ties to Big Pharma abortion pill maker… effort to derail Kavanaugh is plot to protect abortion industry profits”

      https://www.naturalnews.com/2018-09-20-kavanaugh-accuser-christine-blasey-exposed-for-ties-to-big-pharma-abortion-pill-maker.html

    3. Peter Hill – the giver of non sequitur, the thrower of ad hominem. How about some actual evidence? Oh you have none? Then let me lay this one on you: “Innocent until Proven Guilty”.

      1. You’re right, Anonymous; Brett Kavanaugh is innocent until ‘proven’ guilty.

        And I should note that a year ago I was skeptical of ‘Me-Too”. Which infuriated my liberal Facebook friends. I felt that ‘Me-Too’ short-circuited Due Process. And I was afraid that public shaming would become a national sport making this country meaner.

        But when one scrutinizes Blasey, she wouldn’t seem to have a need for money or attention. She’s an accomplished academic living what sounds like a good life in Greater San Francisco. Injecting herself into an explosive political fight is guaranteed to bring her truckloads of hate mail!

        One should note that victims of Alex Jones have had to practically seeks witness protection from Jones’ followers. Even people with the same names as Alex Jones’ victims have been harassed by lunatics.

        Blasey has resigned herself to years of harassment. Just today Alex Jones was featuring pictures from her high school yearbook. Who in their right mind wants that attention?! Blasey is now a walking target for any crazed conservative!

        But even if Blasey fails to substantiate her case, she has shed light already on Kavanaugh’s past. It appears he ‘was’ wildly drunk many times as a teenager, and during his college years. That’s all Blasey has to prove in the court of public opinion.

        And it may turn out that Kavaugh committed acts of vandalism; which is not uncommon for drunken teenage boys. Or we might learn more about those baseball tickets Kavanaugh put on his credit cards. Said purchases far exceeded top tier season tickets. Those transactions could be a clue to something peculiar.

        So even if Blasey gets nowhere in her sexual assault allegations, it’s hard to see how Kavanaugh triumphs. Republican Senators are visibly lop-sided in male domination. And Trump himself has been the subject of multiple sexual complaints Those on top of a affairs with a porn star and a Playboy model.

        The Republicans were already in trouble with suburban women voters. Kavanaguh / Blasey could be a tipping point.

        1. Peter Hill – doubling down on the ad hominem in order to ruin a man’s life. You are an utter piece of crap sir.

          1. Anyonymous, Google has 8 pages of entries regarding Kavanaugh’s purchases of baseball tickets. It’s all very mysterious. Kavanaugh put between $60,000 – $200,000 on his credit cards to purchase baseball tickets. Then, after his nomination, those credit cards were abruptly paid off.

            This article by The Atlantic gives a good rundown.

            https://www.theatlantic.com/politics/archive/2018/07/new-strike-against-kavanaugh-season-tickets/565022/?utm_medium=offsite&utm_source=google&utm_campaign=newstand-politics

        1. Paul C. SCHULTE…………..I went to cultofthe1st.blogspot.com and read some of that! I’m wondering why she announced in 2012 to her hubby and shrink abt the “incident” . What is the significance of that date? Has anyone said? Perhaps he was in the news or being talked about as a future SCOTUS justice? Just wondering.

          1. Cindy Bragg – I am not sure if we will ever know. Right now I am sure the WayBack machine is going crazy tracking her down.

            I am curious as to why she was in family counseling. 😉

            1. Paul C. Shulte……….oh yes….my radar did a backflip upon hearing about the couple’s counseling.
              And scrubbing her FB page etc…she must be a real piece of work.
              Thank you, Paul.

              1. Cindy Bragg – people who scrub their sites forget about the WayBack Machine. 🙂 I have never used it, however, I have seen the results of its use. 🙂

                1. Paul. C.. I’ve never heard of it! I thought it was just a figure of speech. But will check into it.
                  I see on Bret B. show the paid protesters are having a sit-in a on the Hill . Hope they’re all arrested.

              2. Given where they live, and what he does for a living, it boggles to imagine they were fighting over money. Whaddya think’s the issue, liquor, street drugs, kids or sex?

          2. Cindy Bragg,
            – I think Mitt Romney mentioned Brett Kavanaugh as a top choice for the Supreme Court.
            This was during the 2012 campaign, so Kavanaugh’s public profile was somewhat heightened for a time in 2012.

            1. Tom………Thank. you for that! .I just thought the fact that she would make a point of telling hubby and a witness, the shrink, at that particular time might be interesting………other than the fact that they were having marital problems.

        2. The New York Times mentions that yearbook photos show many pictures of students drinking. Which is odd. My high school class was drunk every weekend but that wasn’t in the yearbook.

        1. Kurtz: ‘apologize to Jones’..???????

          HERE’S ALEX JONES JUST 2 WEEKS AGO HECKLING MARCO RUBIO

          Alex Jones made a rare appearance in Washington at a Senate Committee hearing on regulations media platforms. Outside the hearing room, Jones, for reasons unknown, starts heckling Marco Rubio was giving an informal interview to an unrelated journalist.

          Rubio tries to be cool at first, but Jones proceeds to get seriously obnoxious. One could have scarcely blamed Rubio punching Jones’ teeth in.

          1. Pecker head Peter,

            You wish to present us with this video, why don’t you go to infowars & find the complete video rather then trying to scam the readers here about Infowars!

            Alex was already at the mic giving interviews when Rubio came up to the mic.

            And as to why Alex & Rubio were both there was regarding the complete scam Facebook/Twitter/Apple/Google/etc. are running against the people & the nation of the US & world.

            BTW: I see you must have missed the fact Alex caught Rubio in mutiple lies.

            IE: Later, after Alex confront Rubio went viral Rubio was forced to admit he knew who Alex Jones/Infowars are.

            Rubio been pissed at Alex since Alex aired a tape 2+ yrs ago of Rubio at some Gay nightclub which in turn caused Rubio to lose the Flordia primary to Trump.

            1. Oky1, It sounds like whoever had that mic turned their attention to Rubio and Jones became belligerent.

              Real journalists don’t get that obnoxious even if they feel slighted. Jones is obviously a fringe journalist; if one even call him a ‘journalist’.

              One should note that Jones is currently facing a lawsuit by parents of children killed in the Sandy Hook school massacre. Said parents bitterly resent that Jones portrayed them as ‘Crisis Actors’. Because of Jones these parents have been mercilessly harassed by lunatics.

              From all indications it appears that Jones could lose that lawsuit which could possibly bankrupt Infowars.

    4. Oky1 – how strange that they would wipe their yearbooks of the years that Dr. Ford was attending.

      1. Paul,

        LOL:) much more in the pipeline.

        If I were her I’d be on a plane to go hide on the dark side of the moon.

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