A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review

senate_large_sealBelow is my Hill newspaper column on the unfolding controversy surrounding the allegations of sexual abuse brought against Judge Brett Kavanaugh.  As we wait for the week long FBI investigation to be completed, the question remains the same: what is the standard that should apply to such cases once all of the evidence laid before the Senate?  As the FBI prepares to submit new evidence, the Senate still must articulate a standard of review for that evidence.

Here is the column

The confirmation hearing for Brett Kavanaugh seems to have morphed into a national hearing on the #MeToo movement. The desire to “speak to women” through the hearing ignores the fact that there are real people, real factual disputes, before the Senate Judiciary Committee, not props for a public morality play. These people have rights, and senators should be clear as to the standards they will apply.

Democratic senators lined up almost immediately after the release of Christine Blasey Ford’s letter to announce that they believe her, not Kavanaugh. Senator Mazie Hirono (D-Hawaii) was asked on CNN whether Kavanaugh should even be given the “same presumption of innocence as anyone else in America?” It was a question that would not ordinarily prompt equivocation or hesitation. Yet, affording Kavanaugh a presumption could be viewed as questioning Ford, so Hirono said she would “put his denial in the context of everything that I know about him in terms of how he approaches his cases.”

Some Republican senators have shown the same disregard of their duty as fact finders in dismissing Ford’s allegation, as well as those of two other women. The public announcements by senators that they believe either Ford or Kavanaugh illustrate how both sides are dispensing with any pretense of fairness or due process. They are yielding to the politics of the moment, regardless of the cost to either individual.

The #MeToo movement has forced recognition of the widespread incidence and tolerance of sexual harassment in society, including unreported sexual assaults. All movements, however, risk mutating into something dangerous when standards of proof are discarded in favor of meting out popular justice. If that happens here, #MeToo could go from a movement of equality to a form of McCarthyism where an accusation is as good as proof. We reach that point when those calling for a presumption of innocence are treated as suspect, and the line between an allegation and evidence disappears.

As the hearing today begins, there has been a plethora of statements that the Senate Judiciary Committee is not a court of law and, thus, not subject to any standard of proof. If only it were that simple. However, the committee is sitting as a fact finder, not just a political body. There is a difference between a hearing on legislation, where senators vote based purely on politics, and a hearing where the reputations of individuals hang in the balance. Congress and courts have long recognized that difference. While rules of evidence do not bind committees, they have historically sought to follow basic rules of due process in impeachments and other proceedings tasked with finding facts underlying ultimate decisions of confirmation, removal or oversight.

Parties often argue privileges, immunities and other defenses before committees. Certain constitutional rights do apply in legislative proceedings. It is precisely those elements that distinguish congressional committees from the mob. They may not have the obligation to guarantee specific rules of due process, but that does not give them license to ignore due process. Those crafting our laws swear to uphold not just the express obligations of the Constitution but the values it represents.

That brings us back to Kavanaugh. A handful of women accuse him of alarming acts of sexual abuse. They deserve a hearing and, yes, further investigation. However, all the allegations contain gaps and shortfalls in corroboration, which is not surprising, given the long passage of time. In a court of law, most of the declarations offered to the committee would be inadmissible. Likewise, while Kavanaugh’s high school calendar would be admissible, it would not be particularly weighty as evidence.

The difference between a court and a congressional committee is captured in the fact that this type of information can be admitted and considered by the committee. However, that does not mean senators can dispense with any standard of proof. At the very least, they should believe — by a “clear preponderance” of the evidence — that Kavanaugh is guilty, if they will use it as the basis for their vote. That is a standard lower than the “beyond a reasonable doubt” of a criminal trial, but it is higher than a “mere preponderance” of evidence used in some civil cases.

Before being lowered by the Obama administration, students accused of sexual misconduct were reviewed under the clear preponderance standard or a “clear and convincing evidence” standard. This generally meant that the person was likely guilty to roughly a 75 percent certainty. It was meant to require a substantive burden when a school makes a decision that likely creates a lifelong stigma for a student found guilty.

A Supreme Court nominee should be accorded no less protection. The clear preponderance standard allows a senator to be less than certain but to have more than a mere preponderance where even the slightest degree above a 50/50 determination is sufficient. It means it is not enough for a senator to find that an allegation and a denial are in simple equipoise — the classic “he said, she said” status. An allegation and a denial leaves a charge unproven, even under a preponderance standard.

Moreover, that standard does not change by multiplying the number of allegations if they still lack corroboration or support. Each should meet the clear preponderance standard to be used as a dispositive basis for denying a confirmation and forever labeling a nominee as a presumptive rapist. Finding an allegation as disproven doesn’t mean you don’t believe alleged victims but, rather, that the evidence does not support a punitive resolution.

Where multiple accounts do matter is when they supply “pattern evidence.” All of these allegations describe a pattern of heavy drinking and aggressive conduct. In a real court, such evidence would be difficult to admit, even criminal acts going back over 10 years are often excluded in trials. Yet, that again is a valid difference between this committee and a court: It can and should consider pattern evidence.

Kavanaugh may have made himself more vulnerable to such arguments with his categorical denials of knowing these women, being at such parties, or engaging in drunken conduct. Those statements create a serious question of his veracity, if the committee finds evidence to the contrary.

In other words, there are legitimate questions to be investigated and a standard of proof to be applied. If the senators believe that, by a clear preponderance of evidence, he lied or engaged in these acts, they have a principled reason to vote against him. Otherwise, they are left with the original merits of the confirmation decision.

In presenting themselves to this committee, two people are placing their lives and reputations on the line. The least senators can do is guarantee they will be considered impartially under a coherent, fair standard. If the hearing becomes — as it increasingly appears — a mere extension of politics by other means, these senators have failed these witnesses and their institution at a truly historic moment for this country.

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


219 thoughts on “A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review”

  1. A Thought Exercise

    Let us consider, for a moment, if Judge Kavanaugh accused Dr Ford of a terrible, career ending crime. She was up for the most prominent job in her field in the nation. He submitted his accusation to Lindsay Graham, who said not a word about it during her hearing. It was not until the hearing was over that he produced it, without any details, in order to delay her hearing. Meanwhile, Chuck Schumer declared that their game plan was to block Ford’s nomination using any means necessary. Then they were going to hold that seat open against Liberals for 2 more years, until they hoped to bring Republicans to power in 2020. Even though a Liberal was president, and Liberals held Congress, they were going to do all it takes to prevent Liberals from choosing this Justice, which would flip the seat from Liberal to Republican.

    Meanwhile, we discover that Kavanaugh changed key details about his accusation, especially his age, which would then put Ford into the same area as he. His original accusation would preclude her even being in the same state. His accusation is based off of a repressed memory retrieved during hypnosis, the theory of which has been thoroughly debunked as junk science that implants false memories in patients. Every single witness he names against her has no idea what he’s talking about. The Republican controlled media calls him Judge Kavanaugh but her just “Ford”. They pour through Ford’s high school yearbook, and any goofy thing she wrote is considered proof that she is a terrible criminal. Her drinking anything at all in high school leads to accusations that she is a fallen woman and a despicable human being. If a woman is capable of drinking in high school and college, then how are we to know she never blacked out? If she drank, she could have committed any atrocity! We should only allow women who never drank to attain high office, because only then could we be assured of sober, good living and sound reasoning. Who needs some lush woman who drank in high school in high office! As soon as Kavanaugh states his accusation, in a trembling little boy voice, but dry eyed, Republican Senators one by one stand up to declare they believe him. They don’t need evidence. They believe him. Ford drank in high school, and made a comment in her yearbook like some kind of hussy. They should not be judged the same, because Ford should be judged on the basis of having drunk alcohol in college. If you don’t support Kavanaugh, then you support the culture where women are loose, consume alcohol, and commit all sorts of crimes they deny later. Ford’s husband is sent death threats and messages that he probably deserves to be married to that whore criminal Ford. I mean, she made a joke that could today be construed to refer to a threesome on her yearbook. Sure, she adamantly insists that it meant a drinking game to her and her friends at the time, but she drank alcohol in college, how can we believe a word she says! Did you see her face? Clearly she drinks a lot. Her cheeks are too ruddy otherwise.

    The Liberals in the committee hire a prosecutor, who handles Kavanaugh with kid gloves. She doesn’t poke any of the glaring holes in his statement. No one does on her behalf.

    Then, when she is left on her own to defend herself, she gets up before the committee and she cries, unlike Kavanaugh, tears of frustration and outrage at what this process has done to her. Convicted in the court of public opinion without evidence. Her opponent believed merely because he was a man and a Republican. Contradictory evidence ignored. Her chance at the best job possible in her field, previously assured to her, and now perhaps gone forever. She will probably lose her current job, and never be able to work again. She and her family get death threats. Her friends are harassed and chased in restaurants. People tell her friends they will “never be safe” because they are friends with her. Because she is a woman, it is assumed that she is less credible, and probably guilty. Her drinking at all in high school and college assure that her reputation and credibility for the rest of her life is forever ruined. And then, her outrage that these unsubstantiated charges, indeed disproven charges, have been taken as fact against her, is discussed at length at the Republican controlled mainstream media as having been insensitive to Kavanaugh, and victims of crime everywhere. She is accused of partisanship and being a bully. She should have just sat there and taken it. No, she should have removed her name from consideration, to make it all easier for Republicans.

    How does this sound? Does it sound fair and just? Would you be proud of yourselves if the scenario was reversed? Because if you would be outraged at the very thought, then you are not behaving or judging fairly and with equanimity.

    1. If you want to understand conservatives’s outrage at what has been done to Kavanaugh, the exercise above is how we see what’s happened to him. At least, it’s how I see it.

    2. Karen…….you have a gift for calmly and deliberately laying out your argument and point of view..
      I’m a Louisiana native, so am incapable of doing that. LOL
      But kudos to you.

        1. Paul C…LOL. Yes, definitely. I have always admired critical thinkers who express themselves well.
          That’s why I hang around these parts……hoping to learn more!

          1. Cindy Bragg – can I suggest The Great Courses as a short cut. 😉 You will learn a lot here, but some will not be anything you can use in you daily life.

            1. Thank you for the tip, Paul…….I think we have some of them on. Cd. Hubby listened to them as he drove back and forth to Austin when he still had an office there..

              1. Cindy Bragg – check your library. And Audible Books has them. I use my free credit for them. 😉

      1. Thanks, guys. Cindy – I love LA. I don’t think I’ve ever had a bite of bad food in NOLA. Such a lovely place with graceful architecture. They are much braver than me. Did I mention the time a fan boat captain fished out a gator to show us?

  2. I believe in equal rights for women. If person X accuses person Y of a crime, with all of the problems with her charge stated in my other comment, no reasonable person could convict person Y. By convict, that refers to denying Y a pinnacle advancement based on the allegation. That is a punishment for a crime not proven.

    In addition, person X lied about their refusal to testify in a timely manner, thus delaying the process. They are not actually so terrified to fly that it is debilitating, as they fly all over the world. In addition, the political party of X has openly declared that they will block the advancement of Y by all means necessary, and then hold that position open until the next election, when they hope to come to power.

    If Y had been a woman, there would have been riots with genitalia hats in the street. Marches for women against the patriarchy. Media pundits decrying the unfairness of it all. Probably a clothing line would be walked down Milan catwalks. Maybe a makeup line and nail polish color. Probably a handbag embroidered with “I stand with Y” in some pierce color on a deep azure background, symbolizing power and freedom.

    These two people are not being treated equally or fairly, and that is an inherent problem when deciding upon a person to judge the nation.

    Does the Senate need a standard for review? How about fairness and basic decency. Accusations must be proven or it is merely a lynch mob. How often has Professor Turley and others written about the gross unfairness of boys being thrown out of college based on unsubstantiated accusations that boil down to he said she said? If it is reprehensible for such a miscarriage of justice to deny a young man his college education, how much exponentially more so would it be to deny him the pinnacle of his career, and to ruin his reputation?

    If he is denied the Supreme Court, the public will forever believe it was because he was a rapist, which, based on the evidence, is not true.

  3. “The public announcements by senators that they believe either Ford or Kavanaugh illustrate how both sides are dispensing with any pretense of fairness or due process.”

    I disagree. Disbelieving Ford’s claim can be reasonably made based on the evidence. All of her named eye witnesses dispute her claim. She materially changed her statement several times since 2012. The original two iterations made this happen either when she was 17 (1984) or even older (late 80’s), both of which would mean that Kavanaugh was not in the area. Then she changed her story to age 15. She said she could not remember driving to or from the party, and after she got her license, she liked to drive herself. That is one heck of a deduction to arrive at the only age at which Kavanaugh would have been in the state.

    Believing Kavanaugh is innocent uses reasoning and logic, based on the evidence. Believing Ford requires the suspension of critical reasoning, as well partisanship. If one of their own had been accused under similar circumstances, I do not believe they would have taken the same stance. One must also stand up agains the horrifying misuse of government power in this most nasty case of political warfare. Delaying this information for months was an inexcusable political strategy.

    1. “Disbelieving Ford’s claim can be reasonably made based on the evidence. All of her named eye witnesses dispute her claim.”

      All of the names eye witnesses don’t remember the incident. There’s a huge difference between disputing the claim and not being able to remember the party.

      1. “Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, without, Dr. Ford.”

        A case where your eye witness said this would be thrown out. She does not know him, and doesn’t ever remember going to a party where he was present.

        That would be evidence for the defense, not the prosecution.

        Any questions?

        1. Wally’s premise is that a thesis convenient to the Democratic Party must be true unless you can produce security camera footage showing it’s false. Nat Hentoff is dead, Alan Dershowitz is pushing 80, and Jerilyn Merritt is pushing 70. As for succeeding cohorts of genus Parisan Democrat, you can never tell if they’re being dumb or being deceitful.

  4. Even if he didn’t assault anyone, and even if he didn’t attempt to assault anyone, someone who was a disrespectful, drunken lout during all of their college years really isn’t fit to be a Supreme Court justice. Just because he can play normal now doesn’t mean that he doesn’t have some level of psychopathology, as evidenced by a lengthy period of being a drunken lout.

    Why can we not find today’s Oliver Wendell Holmes, Thurgood Marshall, Lord Denning, or Maimonides? Surely there must be someone who was temperate and scholarly from adolescence on.

    1. I have news for you, anon. Thurgood Marshall loved Winstons and Wild Turkey and visits to racetracks, and by his own admission was in danger of being expelled from college at the end of every year he attended.

      I love partisan Democrats:

      1. Manufacture a caricature of a Republican

      2. Imoprovise a nonsense performance standard on the spot.

      3. Claim the Republican doesn’t meet the improvised standard.

      4. Compare him unfavorably to a Democrat who is well known to have not met that standard.

      Thurgood Marshall, at least, didn’t beat a vehicular manslaughter rap by having his camarilla threaten the prosecutor.

    2. JFK was a lush who chased skirts and openly flouted his mistresses while in the White House.

      Teddy left a woman to drown after a DUI accident, whom he was inexplicably driving away from her hotel to a secluded area, and then sexually assaulted a waitress in a public restaurant.

      O’Rourke tried to flee the scene of a DUI accident, and has run afoul of the law multiple times.

      I know someone who worked with LBJ. No only was he a heavy drinker, but he would become furious when he would catch the staff watering down his drinks to stave off the drunkenness. Apparently, things had changed from when he liked weaker drinks as an advantage in the Senate.


      Drinking in high school and college parties does not make a man a “disrespectful, drunken lout during all of their college years.” Pretty much most guys drink at college parties. You sound like the SNL church lady. Why are you so Puritanical about drinking, especially after the legal age, so much so that any drinking at all in younger years will forever ruin a man’s reputation for the rest of his quiet life. That is so intolerant and judgmental.

      1. Karen S – don’t forget that LBJ liked to whip out his penis for reporters to prove how big it was.

        1. Paul C…. being Texans, we know all the lurid tales of Lyndon…and they’re still sickening, aren’t they?!!!!
          But try reminding the deranged Democrats here and they could care less! They will defend him forever.
          When hubby was a Capitol Hill Policeman during the last 6 months of that jackasses administration in ’68, hubby and other cops were given license tag numbers of Lyndon’s mistresses and told to NEVER stop those vehicles or ticket them!!
          Sorry for my language but I couldn’t stand LBJ. One reason I was glad we left Austin was that drama queen Lucy would always walk into wherever I was shopping and start talking at the top of her lungs about her son Lyndon, named after the jackass.
          It was sickening to be exposed to her voice……..I would always rush out of the store. ugh

          1. Cindy Bragg – I thought LBJ was a horrible President but a first-rate politician.

            1. you got that right, he was a real SOB but a powerful, conniving, byzantine master of American politics

              and I fully believe he green lighted JFK having his command terminated

              1. and I fully believe he green lighted JFK having his command terminated

                [eye roll]

                1. DSS – there was a really bad joke going around after the end of the Warren Report. LBJ wants his rifle back.

                  1. Paup. Haha Haha! There’s also a picture of LBJ covering his ears at the moment JFK’s limousine turns in front of the School Book Depository……LOL

                    1. Cindy Bragg – this was when all the elephant jokes were going around. This one I was told by a bunch of girls. I was the only male. What’s gray and comes in quarts?

                    1. an elephant cindy, an elephant.

                      it would not be funny if the answer was “paint”

                    2. Cindy Bragg – an elephant. It is better as an oral joke. 😉 Since it is a play on words.

      2. But, none of them lied under oath to a Senate Committee.

        Turley claims there is standard of “clear preponderance”, but fails to cite to any statute or other law setting this as the standard. His post also implies that Dr. Ford’s testimony, standing alone, is legally insuficient to meet the nonexistent standard he made up, and also that members of Congress must presume Kavanaugh is telling the truth. That’s not the law. Turley : you know that even if this were a criminal case, a jury could convict Kavanaugh just on the grounds of her uncorroborated testimony, if they were convinced it established guilt beyond a reasonable doubt, and if they believed her story over his. This isn’t a criminal case, so there is a lower standard, but not something close to “clear and convincing”, which is the usual intermediate standard between beyond reasonable doubt and preponderance. There is no fourth standard. If there is some statute or case law saying otherwise, please cite it.

        Turley appears to me to be feeding into the Republican narrative that assumes Dr. Ford is lying, and he also appears to be trying to provide an out for members of Congress who may be on the fence by making up some 75% standard. Kavanaugh is not entitled to a presumption of innocence, and Dr. Ford’s testimony, even without corroboration, is enough. Juries are routinely instructed that all witnesses are presumed to be telling the truth, and if there is a conflict, they should resolve it in favor of the witness whose testimony most strongly convinces them of the truth. Dr. Ford is not required to come up with corroborating evidence for her testimony to be considered credible. If her testimony is credible, Kavanaugh may not sit on the SCOTUS. That’s just as to the sexual attack issue. Then there’s the matter of lying about the extent of his drinking and sexing. If proven that hel lied about that, he’s gotta go,

        1. Anonymous – it appears that she lied to the SJC on at least one item, the 2nd front door. The building permit was approved in 2008 and the door was installed by 2011 when it appears in a photo of the front of the house. So, that puts her at risk of using all of that GoFundMe money to help defend her in her felony perjury trial.

          1. I would suggest this as well: a seat on the SCOTUS is a LIFETIME appointment. This raises the stakes considerably when considering credibility and demeanor and which party should have presumptions, if any, which I claim there are none. Kavanaugh flunked both tests with flying colors. Members of Congress owe the American people a good, hard look at Kavanaugh. Before Thursday’s performance, he spent days at the White House, being coached on how to appear outraged at the very thought that someone would come forward after more than 30 years and accuse a fine judge of criminal behavior, all of which was orchestrated by Democrats to get even for Bill Clinton’s impeachment years ago.

            That feigned outrage was part of the Kellyanne playbook: First, if they had old white men going after Dr. Ford, this would make them look bad, so they hired a female surrogate. Next, if they outright called her a liar, even though she appears credible, well the “optics” of that would make them look bad because it demeans every woman who was sexually assaulted, so they came up with the narrative that, yes, she was assaulted, but it’s a case of mistaken identity, attempting to plant seeds of doubt that those voting on Kavanaugh could hang their hat on. That way, if they vote in favor of Kavanaugh, they can appear to be fair and reasonable. The Kavanaugh and Graham outrage performances are all part of the playbook, because, after all, if some poor soul was really falsely accused of something heinous solely for political reasons, they should be outraged. This is how juries are routinely misled by attorneys. They have to be given some reason for screwing over someone who is a credible witness and who has a credible case, particularly a woman, a minority, or someone far less powerful than their opponent, so jurors can be convinced in their own minds that what they did was reasonable and appropriate. Directly pandering to prejudices is so Jim Crow, so you have to be subtle about it. Claiming an ulterior motive, or mistake about critical facts are two ploys used by lawyers. Part of this particular play is that Senators were supposed to begin with the assumption that Dr. Ford was lying and was procured by Democrats to do so, and that Kavanaugh is entitled to be believed. That’s not the case.

            Now they have Turley claiming that if there’s doubt, that it must be resolved in favor of Kavanaugh, based on a 75% probability standard he just made up. Today, we have the prosecutor from Arizona saying that Dr. Ford would not prevail in a criminal trial because there is no corroborating evidence and her testimony is insufficient. That is just the opinion of a one political hack, and, in any event, this is not a criminal trial, and that is not the law. By law, the testimony of a single witness, if found credible by a jury to establish the elements of a crime beyond a reasonable doubt, is sufficient. Witness testimony is evidence. If you don’t believe me, then consult pattern jury instructions which are available online. Dr. Ford’s compelling testimony is entitled to be believed. Kavanaugh’s denials are not entitled to any greater weight. But there’s much more.

            Turley and others have commented about not hanging someone for youthful indiscretions, but that’s not the issue here. No one cares if Kavanaugh drank beer when underage, but it’s a different case when someone drinks to excess, becomes belligerent, is accused of attempting rape while drunk, but denies ever drinking to excess. Kavanaugh passionately denied drinking to excess, blackouts, and sexual activity in high school and college. His high school yearbook entries belie these propositions, and his explanations of terms he chose to use are not credible. Now, we have multiple corroborating witnesses to the fact that Kavanaugh did, indeed, drink to excess and was belligerent when drunk. He needs to go back to the D.C. Circuit.

            1. Natacha – Rachel Mitchell is not a political hack, hers is not an elective office. She is an attorney in the Maricopa County Attorney’s Office and is assigned to sex crimes. That is her specialty area. Janet Napolitono thought she was one of the best in the country. She teaches courses in how to interview sex crimes victims and she is very good at it. Did you see how fast she disarmed Chrissy? Within 5 minutes, she had Chrissy eating out of her hand.

        2. “Dr. Ford is not required to come up with corroborating evidence for her testimony to be considered credible.”

          Actually, yes she does. The accuser has to prove her case. She can be found compelling, as can Kavanaugh, but there would be many reasons why someone who was wrong could be compelling. For example, repressed memories have been infamously proven to be based upon implanted false memories. She could be sincere, and yet it’s not real.

          On the other hand, there are the issues with her lying about not coming earlier because she’s deathly afraid to fly. She’s a world traveler who loves to surf in distant locales. Her second front door was because she rents rooms to Google interns. She claimed at first this happened when she was 17, then that it happened in the late 80’s (she would be in her 20s). Then she changed it to 15. She said the only reason she thinks she was 15 was because she couldn’t remember driving to and from the party. She liked to drive when she had her license. Without her being 15 or younger, Kavanaugh would have been out of state. There was the original tale, that there were 4 guys in the room assaulting her. Those are all material changes to her story.

          She scrubbed her social media of her virulent anti-Trump rhetoric. She claims not to have known about the repeated offers made to her in writing by the Committee, which were declined by her, and publicized internationally, and discussed at length on the news and radio and water cooler, about the repeated attempts by the committee to get her to talk in any way, even over the phone, which she repeatedly declined. She also claimed not to know how GoFundMe works but she has raised a significant amount of money through the site.

          Then there were the emotions she portrayed. When she sounded like she was crying, her eyes were dry and she shed no tears. As has been pointed out by others, the frog in her throat mysteriously disappeared once she changed topics. What that sounds like is being nervous at being on camera for the entire world. Your voice quavers with anxiety, but you don’t get mucous you have to clear, and tearful.

          None of the above regarding Ford is credible. The audio of her testimony was more compelling than the video, and when you take into account the untruths, changes to her story, and exculpatory shedding of passionate anti-Trump rhetoric from her social media, that begins to paint a picture undermining her credibility and honesty.

          Compare and contrast to Kellyanne Conway, who revealed that she, herself, was a victim of sexual assault. Her throat got tight as she approached the topic, her eyes got wet, and she had to stop a few times. She cleared her throat. The tip of her nose reddened on camera. Her cheeks flushed. She blinked back tears. That was compelling, and my heart went out to her. By the same token, if she brought an accusation against a specific person, she would have to bring evidence, or at least a pattern laid down at the time of bad behavior.

          1. I neglected to add another problem. She at first claimed that this happened when she was 17, and then changed it to 15, to place Kavanaugh in the same state.

            However, she mentioned who this incident impacted her school. She said that she struggled with bad grades her first two years in college because of her trauma. That would hold true if this happened her senior year in high school or in the early years of college. However, she changed her story that this happened when she was 15, a sophomore. Why didn’t she say her high school grades suffered? How did she get into college if she tanked her grades in high school? Why would only her college grades be mentioned?

            I would have liked to have seen her transcripts in high school and college. If there was a sudden dip, it would indicate something bad happened – a trauma, alcohol abuse, drug abuse, or mental health issues. There would be some sign of it.

            If her high school grades held steady, then why would this suddenly affect her grades years later?

          2. Karen: are you an attorney? How long have you been an attorney? I’ve been an attorney for 36 years. If you aren’t an attorney, then don’t try to pretend you know the law and don’t quote the law you hear from Faux News, particularly “Justice with Judge Jeanine”, who trades on her alleged judicial title to spoon feed crap to the Trumpsters. Dr. Ford hasn’t claimed to have “a case”, much less does she have any burden to prove “her case”. She testified, reluctantly, before a Senate Committee, about what happened to her. She has been invited to file a formal complaint in Maryland, but didn’t do so. Unlike Kavanaugh, she hasn’t gone on the talk show circuit. Her testimony is credible. Kavanaugh came across as the lying, spoiled, entitled frat boy he really is. Multiple acquaintances claim he is lying about his drinking and blackouts. That alone, is enough to vote against him, even without the evidence he provided of his lack of judicial temperament. Then, there’s the several hundred thousands of pages of documents the Republicans refuse to let the Democrats see. The Senators don’t need Dr. Ford’s testimony to turn Kavanaugh away.

            Kellyanne CONway is the biggest liar in the history of political hacks. I wouldn’t believe her if she said today is Monday, and my opinion is that the sexual assault story is part of her orchestrated playbook for shoving an unqualified candidate onto the SCOTUS by coming up with a strategy that members of Congress can use to assuage their consciences about totally discounting Dr. Ford’s testimony. Kavanaugh met for a full week at the White House before he put on his little performance. Did Dr. Ford meet with the Clintons or any other Democrats, to get woodshedded before she testified?

            So, on this issue: what did Kellyanne do about her assault? Did she go to the police? If not, why not? When did it allegedly happen? Who was her assailant? What exactly was done to her? Did she suffer physical injuries? Did she see a physician or therapist? Why not? What is her degree of certainty as to the identity of the assailant and the facts? Where did it happen? Are there witnesses? Who are they? As to what you claim the law is: what is her corroborating evidence? The phony tears you so much want to believe? At the end of the day, who cares whether Kellyanne was assaulted? I sure don’t.

            Read what I wrote above about how lawyers con jurors into disregarding credible evidence, how they plant seeds of doubt on the facts and vague claims of an ulterior motive that gullible people will latch onto, but they have to be subtle about it so jurors will feel that what they did was reasonable and within the law. It’s still just a game. Speaking of which, where is your actual evidence that Dr. Ford is lying? As to anti-Trump rhetoric, the majority of Americans dislike him, distrust him, want him gone and do not approve of what he’s done. If she held such views, that would be consistent with the majority of Americans and doesn’t constitute an agenda to lie under oath.

            I’m asking again: what does Dr. Ford stand to gain by coming forward?

            1. I’ve been an attorney for 36 years.

              LMAO. What’s your excuse, Natacha? Alzheimer’s patients are often unaware of their impairments.

              I’m asking again: what does Dr. Ford stand to gain by coming forward?

              Who cares? What we know is that there is no argument grounded in circumstances, documents, or testimony that these two were acquainted in 1982 or at any other time. All the supporting evidence suggests that they weren’t. She’s made the assertion, let her provide the evidence. And, no, Natacha’s feelz are not evidence.

            2. Anonymous – what does Chrissy have to gain? Well, let’s see. From the 5 GoFundMes, she has about $1 million dollars coming to her. Nice payoff. As a liberal, she will be lionized by the liberal community for bringing down Judge Kavanaugh. Putting a crimp in Trump’s judicial plans.

  5. This is a job interview. What is the burden of proof used in hiring a law professor? The candidate has no “property” interest in the job prior to being hired. Kavanaugh if not hired is not losing something he already has a right to. This is not like disciplining a student who has a contractual or other legal right to be in the school.

    1. This is a job interview.

      You as a supervisor treat a candidate the way Kavanaugh has been treated, the HR director will have your head.

    2. “Kavanaugh if not hired is not losing something he already has a right to.” Yes, he is. His reputation. His and his family’s ability to walk freely and without threat of violence or death in a public street because he has been branded a sexual predator. His advancement to the Supreme Court was assured until this allegation. I would stay that he has a lot to lose.

      “This is not like disciplining a student who has a contractual or other legal right to be in the school.” It is the ruination of his career and reputation. He may never be able to judge again.

      1. In reality, this is a lifetime appointment to the United States Supreme Court. This is not like getting kicked out of school, or getting the assistant manager position at the Piggly Wiggly. The Kav has shown that he doesn’t possess the judicial temperament to merit a lifetime appointment to such an important post. His anti-Democratic rabble-rousing screed is something we can expect from the infantile day glo bozo, but not from a Supreme Court Justice. Any litigant who appears in the D.C. Circuit Court of Appeals–or the Supreme Court if he makes it for a short while–who could even remotely be connected to the Democratic Party now has legitimate grounds to move for his recusal. Any consequences resulting from his bratty-brat outburst are entirely self-brought.

        this is to “I’d sell my soul and my families’ souls to the devil for one more anti-Roe vote” karen – cindie

        1. Marky Mark Mark – they can move for his recusal, but I am not sure they are going to get it. 😉 Aren’t you just a little jealous? Here you are defending dead-end gang-bangers and he has a cushy lifetime appointment in DC. That’s what happens when you actually know the law.

        2. Mark:

          Why can’t you heel-toe it through a debate without resorting to ad hominem and slander against me? You make up the most egregious accusations, which you cannot back up. I understand how this bad habit might make you so eager to accept egregious accusations against someone you oppose politically, that she cannot back up, either.

          Perhaps one day you will feel the prick of that same sword, and regret your lack of reason, subsumed by emotion. You feel right, so you must be.

          What did you expect a wrongfully accused man, branded a sexual predator without a shred of evidence, to do? He is a judge who rules on the evidence as part of his career, but that same high standard is not applied to him. Ironic, isn’t it, the carelessness the public has shown towards fairness, or forming opinions based on evidence.

          I don’t believe Republicans, Democrats, men, or women. I believe evidence. Why is that a controversial opinion, and what does that say about our society?

          1. It says–when you reap the wind by sandbagging Merrick Garland, you pay the price when the whirlwind appears. I’m sure a sanctimonious and hypocritical bible-thumper can recognize that reference. I know you, your ilk, and what you types are really like. I’m quite sure the Kav has affirmed sentences of life-plus-cancer to persons who did the exact same thing that he himself has done. Further, you and your ilk can’t seem to get over the fact that the worm has most definitely turned–we no longer use the justice system to judicially lynch those who don’t look like us. But aside from all that, you and your ilk are neglecting to ask the most salient question: “what is that ticking sound?”

            this is to “but ‘those people’ really shouldn’t be able to vote” karen – cindie

            1. Here’s a little something else for “karen – cindie” to chew on:

              Text messages suggest Kavanaugh wanted to refute accuser’s claim before it became public

              A former classmate of the Supreme Court nominee has reached out to the FBI but hasn’t received a response.

              by Heidi Przybyla and Leigh Ann Caldwell / Oct.01.2018 / 4:39 PM CDT / Updated 10:31 PM CDT


      2. Karen, really, please stop watching Faux News. Kavanaugh was never “assured” to be a viable SCOTUS candidate. That’s more Faux News garbage. As a judge, he is routinely reversed due to his extremely non mainstream views of the law and willingness to bend over backwards for radical conservatives, in favor of big business, big insurance, and so forth. However, his main qualification is the paper he wrote opining that a sitting President cannot be subpoenaed or charged criminally. Kavanaugh’s nomination is just another page in the playbook of trying to stop Mueller’s team from getting to the truth. If Trump is subpoenaed, his lawyers will move to quash. The issue could make its way to the SCOTUS. That’s what Kavanaugh’s nomination is really all about. There are thousands of attorneys and judges out there who could be fair and impartial. Why are Republicans stuck on Kavanaugh?

        Why are Republicans hiding the thousands of documents Democrats want to see before voting? No other candidate’s documents have been hidden from review by the Judiciary Committee. That alone should disqualify him. It’s fairly clear to anyone who thinks about it that there is damning information in the documents Republicans don’t want Americans to see.

        Are people threatening his family? Why would anyone do that? Dr. Ford and her family have been threatened and had to move from their home. I seriously doubt anyone has threatened Kavanaugh’s family to an equal extent.

        No one ruined Kavanaugh’s career. If, as you and Faux News say, she’s just a flat-out liar or, giving her the benefit of the doubt, some poor slob who is confused about who assaulted her, then his reputation remains intact, whatever it was, and maybe even improved because now he’s the victim of a vast left-wing conspiracy to bring him down. Faux News hasn’t figured out that Kavanaugh’s reputation would suffer only if Dr. Ford is telling the truth, and if she is telling the truth, then it was Kavanaugh himself that brought about the fallout. If he’s voted down, which should happen, he will still be on the DC Circuit Court of Appeals. Where did you ever get the idea that he or his career and reputation would be ruined? Faux News, no doubt, and this is to put a political spin on Kavanaugh getting turned away, which Republicans will use as a wedge against Democrats for their dastardly deed of orchestrating a fake attack on a fine man’s reputation. It doesn’t sound to me that Kavanaugh had much of a good reputation among people who knew him in high school and college.

        The sexual stuff, while very important, isn’t the major reason why Kavanaugh should be voted down–it’s his willingness to lie under oath, coupled with his lack of judicial temperament that he put on display Thursday. Add to that the politicizing of challenges to his nomination–the absurd claim that Bill and Hillary Clinton are behind Dr Ford’s testimony as revenge for Bill’s impeachment and Hillary’s loss of the election. This is the stuff of Faux News, not a Senate Judiciary Committee hearing. His outburst about the Clintons was shocking to me. Where are his facts? Doesn’t he know that judges should decide matters based on fact and law, not politics? Apparently not.

        Republicans are nitpicking Dr. Ford and her testimony to divert attention away from less controversial facts showing he’s a liar. Multiple friends and acquaintances have branded him a liar as to the extent of his drinking, plus his denials of blackouts and bellicose behavior when drunk. What is their motivation of these friends and acquaintances to lie, and how did Democrats procure their lies? What about the sexual and heavy drinking references Kavanaugh himself placed in his yearbook, plus his deceitful spin on the meaning of words and phrases that have found their way into the common lexicon, such as “boofing”, “eskimo brothers”, Eiffel Tower, etc? He has not earned the right to a lifetime of decision-making affecting the rights of Americans, especially those who are vulnerable.

        1. As a judge, he is routinely reversed

          By whom, the DC Circut en banc or the Supreme Court? He’s written 300 opinions, so you should be able to Shepardize ’em, no?

          1. Diamond and Silk is livestreaming the line waiting for the TN Trump speech. My God, there are a lot of people in line and the speech isn’t until 7 pm

    3. anonymous – you are wrong about the students rights to be in school. Most states require that they be in school until a certain age and land grant colleges are required to admit citizens of the state who are high school graduates. So, are they of an age where the state requires them to be in school or are they a state citizen enrolled in a land grant college? If the answer is yes, then they have certain rights about remaining in school. If the answer is no, then you have to look at either the state law (if a state institution) or the college handbook.

  6. The problem is not that ‘a clear standard of review’ is lacking (though more clarity in this regard might be helpful in some other context). The problem is that partisan Democrats are disinclined (in some cases) or incapable (in others) of applying any standard of review other than an improvisational one that gets them what they want. The question you do not wish to ask or answer answer is why the intramural culture of the Democratic Party is so degenerate.

    1. I wish Kavanaugh had replied to the Dem Senator trying to get him to agree to an FBI investigation, “Why? You aren’t going to vote for me no matter what the FBI says. If the FBI says that Christine made it all up, you still wouldn’t vote for me, right?”

      Like I have said numerous times, Democrats are like Bad Wrestlers, who do not care how they win, as long as they win. If their girlfriend hits the Good Wrestler over the head with a metal folding chair when the Referee isn’t looking, then so what? As long as they get the belt.

      I also ask again, why would any self-respecting, sane person vote for Democrats?

      Squeeky Fromm
      Girl Reporter

      1. Because they are authentic American patriots, who will step up to defend our beloved country from the depravities of the gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make.

        this is to squeeKKK

        1. The KKK used to lynch people based on an accusation without evidence.

          Not much has changed for the DemoKKKrats, has it? Still fighting for the right to ruin people without evidence, nay, with exculpatory evidence.

  7. There is a major flaw in Turley’s reasoning. The issue in a confirmation proceeding is whether the nominee is fit for the job. That requres that the burden of persuasion (say more likely than not, or preponderance) be with the nominee and those promoting the nominee. Hence, if there is any substantial allegation against a nominee (and there certainly is here), then the nominee bears the burden of persuasion on that issue.

    Of course, my experience and research indicates that rarely does the preponderance of the evidence burden mean anything. That burden applies only when the fact finder is in equipoise. Trial observers think it is rare that a a fact finder in a case well presented by both sides is in equipoise. (The fact finder may be wrong, but the fact finder is rarely in equipoise.) Still, to the extent that burden of persuasion matters, it should be on the nominee. If the nominee cannot show that he is qualified, the nominee should not be confirmed.

    1. Still, to the extent that burden of persuasion matters, it should be on the nominee. If the nominee cannot show that he is qualified, the nominee should not be confirmed.

      Nice try.

      The nominee is a federal appellate judge (and a veteran of the Solicitor-General’s office) who has composed 300 written opinions. He’s qualified.

      What the Democrats are attempting is to lay on preposterous charges that his moral turpitude renders him unsuitable. The evidentiary burden lies on his accusers, and they’re no where near to meeting the challenge.

      1. He is qualified. However, his temperament is severely lacking as evidenced by how he presented himself while reading his statement on Thursday afternoon. He came across as an angry, put upon, entitled person who blames everyone else for not reaching home plate after he was born in third base.

        No wonder TRump likes him.

        1. He is qualified. However, his temperament is severely lacking as evidenced by how he presented himself while reading his statement on Thursday afternoon.

          This is the new meme partisan Democrats are promoting, and the idiots among them may actually believe it.

          He’s been an appellate judge for 12 years. No one’s complained about his temperament.

          If you don’t want the rage you deserve, quit being outrageous. Normal people manage it.

          1. If he had come across as milquetoast, his denials would have been criticized as not compelling. The Dems would complain that he was behaving in a scripted, emotionless way, contrary to what a wrongfully accused man.

            He acts in a normal way for a wrongfully accused man, and they complain that he’s too forceful.

            He’ll never win with the Democrats, but that’s not who he’s talking to. They have their ears plugged for political reasons.

    2. Define “substantial” as it pertains to allegation. Also, how is K to prove the negative in this case?

    3. “Hence, if there is any substantial allegation against a nominee (and there certainly is here), then the nominee bears the burden of persuasion on that issue.”

      Wrong. One cannot prove a negative. I could accuse you of having murdered someone at some time of your life, but I cannot recall whom, or where, or when. How would you prove you had never killed anyone, by any means, ever in your life? Unless you’re Truman and you had hidden cameras filming you 24/7, you could never prove the negative.

      That is why the one who brings an accusation must prove it. Otherwise, the accused would be helpless to defend himself or herself.

      The nominee has exhaustively shown he is qualified to be a Supreme Court justice. Neither he, nor anyone else, man or woman, could disprove a charge that he had groped someone against their will at a party, but there is no date, or location, and the year is even in question, and everyone else who was there contradicts the accusation. How could you, or anyone else, prove you never groped anyone ever in your life?

  8. The discussion of what standard of proof to use is a red herring. The Congressional hearings are not a court of law; nor is each Senator’s vote on whether to confirm Judge Kavanaugh dependent on whether Dr. Ford has proven her allegations.

    There are essentially two questions here: did J. Kavanaugh do what he is accused of doing and does what he did or did not do disqualify from a seat on the Supreme Court. The former question is determined, not collectively as in a jury trial, but rather in each Senator’s mind. Each Senator will determine how he or she resolves the factual dispute. Either the Senator will believe the allegations proven or not. This is mostly akin to a preponderance of the evidence standard. Regardless of what standard a particular Senator uses to resolve the issue in his or her own mind, a Senator would be hard put to explain a vote in favor of the nomination because, although he or she believed Dr. Ford, Dr. Ford did not prove her allegations by some standard greater than preponderance of the evidence. The expressed standard of proof will be some articulation of preponderance of the evidence, more precisely to be expressed as “I believe [or don’t believe] that what Dr. Ford alleges is accurate”.

    As to the second question, for some Senators at least, they will vote against the nominee regardless of whether they believe he assaulted Dr. Ford. This is clear. Many Senators have said as much. For them, the allegations, the hearings, and the FBI investigation merely give them cover, an excuse for making a purely political decision. For them to say otherwise is disingenuous.

    On the other hand, conceivably, a Senator could vote for the nomination even though the Senator believes Dr. Ford’s allegations that J. Kavanaugh assaulted her. It is not unreasonable for someone to conclude that an event occurring in high school 36 years in the past with no intervening misconduct does not accurately reflect the character of the nominee today. In my view, this focus has received not enough attention.

    It is unlikely that we will ever be certain of the accuracy of Dr. Ford’s allegations. It is unlikely that the FBI investigation will shed any further light on the issue. Given the current state of the evidence, no thinking person can truthfully say the the allegations have been proven or disproven. The Senators must decide how to vote on that state of the record, their protestations to the contrary notwithstanding.

    1. It is unlikely that we will ever be certain of the accuracy of Dr. Ford’s allegations.

      Quite a concatenation of oddities would have to be true for her story to be true. She’d have to have an association with Brett Kavanaugh and Mark Judge which has left no documentary trail, is remembered by no one, and is not a function of the customary patterns of association you’d expect in a suburban matrix in that era. She’d have to attend a gathering that no one else there remembers (or that they’re all lying about for some reason). She’d have to be ‘traumatized’ in a way that isn’t detectable through coarse observation by an event that would influence an ordinary person’s thoughts and behavior for a period measured in weeks if that.

      1. Tabarrock, what a creation you have here. We are dealing with a 36-year-old gathering of a half dozen youngsters. What kind of “documentary trail” are you talking about? What kind of “customary pattern?” And I suppose you remember all the little momentary “gatherings” you attended 10, 20, or 30 years ago. And she looked pretty traumatized to me.

        Right now, the tipping fact – against her – is that 6 to 8 weeks after the attack she saw Mark Judge at the Safeway market and said “hello” to him in an apparently cordial way. There she was facing her co-attacker Judge for the first time after the attack – and she is cordial to him?? Not that she needed to confront him with rage. But she could have at least turned away from him without greeting him.

        My take on this right now is that she was attacked that night, but she misidentifies the attackers as Judge and Kavanaugh.

        There are apparently several other men who now say that they themselves were her attackers. Do they have Munchausen’s, or are their confessions true?

        1. As long as we’re posing rhetorical questions, here’s an easy one: Who keeps detailed documentation of their comings and goings on calendars?

          Answer: An amnesiac. Or a person who knows he has bouts of temporary amnesia due to excessive alcohol consumption.

          Here’s another easy one: What lawyer or Judge submits those calendars to The SJC as though they were exculpatory evidence, for sure?

          Answer: An amnesiac. Or a lawyer or Judge who forgot that he used to have temporary bouts of amnesia due to excessive alcohol consumption.

          1. “As long as we’re posing rhetorical questions, here’s an easy one: Who keeps detailed documentation of their comings and goings on calendars?”

            I do. I write down appointments and what I’m doing on my calendar because I am busy. I started this habit with a Franklin Covey paper organizer, and continued it. I’m not too keen on the calendar app in my phone. My own grandfather kept an appointment diary, and I find his notes about his days fascinating, especially the part where he got snowed in on a train for 2 weeks. I’ve been saving calendars because, as a Mom, it’s cool to look back at what we were doing years ago.

            In a similar vein, Kavanaugh’s father keeps calendars. His father is not an amnesiac.

            Benjamin Franklin promoted keeping a calendar diary to become more organized and efficient. It’s a good idea.

          2. Can you prove that statement? How stupid are you. All police and law enforcement officers keep written and often taped. All lawyers do the same usually for excessive billing and bilking purposes .

            All government employees, All on the road drivers and truckers, air plane and ship crews, Most professions and others who have to turn in such records for tax purposes, Real Estate, dentists, anyone who lives by appointment books. Shall I go on. Any one who works by the hours or b appontments -and especially those in unions. School teachers and college professors….

            Can’t imagine what you do that you didn’t know that?

            Are you a papachico?

            1. remember what Hillary said:


              my old boss used to call it “sanitizing” a file

        2. Tabarrock, what a creation you have here. We are dealing with a 36-year-old gathering of a half dozen youngsters. What kind of “documentary trail” are you talking about? What kind of “customary pattern?” And I suppose you remember all the little momentary “gatherings” you attended 10, 20, or 30 years ago. And she looked pretty traumatized to me.

          This isn’t difficult, RD Kay.

          1. Blasey wasn’t enrolled in school with Kavanaugh or Judge. Kavanaugh has no siblings. Judge has a sister, but she wasn’t enrolled at Holton-Arms. Blasey has a brother, but he wasn’t enrolled at Georgetown Prep.

          2. The Blaseys were not neighbors of either the Judges or the Kavanaughs. They lived six miles from the Judges and eight miles from the Kavanaughs. This isn’t trivial. That’s six miles worth of suburban tract development. There were 500,000 people living in suburban tracts in Montgomery County at the time (over 50,000 in Bethesda / Chevy Chase alone).

          3. Martha Kavanaugh and Ralph Blasey Jr. were both lawyers, but they worked different ends of that street and likely never intersected professionally. She was a suburban prosecutor and he was a BigLaw civil litigator.

          4. Something has been made of E.E. Kavanaugh’s supposed membership in the Burning Tree Club, of which Ralph Blasey was a member. Their membership list is confidential, so we do not know for how many years their membership intersected or if the two men had any more than a nodding acquaintance. Christine Blasey hasn’t claimed she met Kavanaugh there and she could not have: women are debarred from the campus. It’s an all-male members-only club.

          5. You’ve yet to gin up a witness who can attest that Blasey was acquainted with Mark Judge or Brett Kavanaugh.

          6. You’ve yet to gin up correspondence, diary entries, old photographs, or anything else which would demonstrate these two were acquainted.

          7. Mark Judge has published two memoirs of his adolescent and young adult years. If I’m not mistaken, his employment at Safeway is mentioned in one of them. Brett Kavanaugh is mentioned in one of them. She could know these things about him without ever having met him.

          My take on this right now is that she was attacked that night, but she misidentifies the attackers as Judge and Kavanaugh.

          That’s about the least plausible explanation out there.

          1. Not really we’ve seen at least two instances of that already and Ramirez first picture looks remarkably like a certain Strzokette.

    2. The smart money says that none of the Senators on the committee take this woman’s yarn pulling at face value (well, Jeff Flake might). However, saying in blunt terms that the emperor is naked is a direct challenge to a piece in a mosaic. That mosaic would be the social fictions to which an important component of the Democratic base adheres. Denying those social fictions takes away a source of self-validation for that part of the Democratic senators’ electorate.

      1. Well, that explains why Leonard Leo of The Federalist Society hired the infamous swift boat firm, Creative Response Concepts, to launder information to Kavanaugh and Leo’s good friend Ed Whelan who then promptly attempted to swift-boat Chris Garrett who went out with Christine Blasey for several months in the Summer of 1982, including her visit with Garrett in the hospital, and who introduced her to his circle of friends including Kavanaugh, Judge, PJ, Tom, Bernie and Tim Gaudet at whose house they all drank “skis” on Thursday July 1st, 1982, which was roughly the six to eight weeks before Christine Blasey saw Mark Judge working at the grocery store to raise money for the football camp that he and Kavanaugh attended in late August of 1982. Gee. I wonder what Chris Garrett is going to tell the nice FBI agents who will soon be interviewing Squi somewhere in Georgia where he currently teaches middle school. Rumor has it folks in Georgia don’t take kindly to being swift-boated by a bunch K Street Swamp Creatures.

        P. S. Tabarrok’s nose will be rubbed in those facts until Tabarrok’s nasal cavity is as full of it as the rest of Tabarrok’s cranium. Or Tabarrok could take another sabbatical like the one Tabarrok took shortly before the Special Senate Election in Alabama. Either way, Pshaw!

        1. “Or Tabarrok could take another sabbatical like the one Tabarrok took shortly before the Special Senate Election in Alabama.” -L4D

          What a great idea. Others could join.

      2. None of them care. That isn’t there objective and they have no experience with mundane nonsense like truth.

  9. Turley wrote, ” A handful of women accuse him of alarming acts of sexual abuse. They deserve a hearing and, yes, further investigation.”

    The investigation that Trump has ordered has an arbitrary time limit placed upon it. The investigation that Trump has ordered also specifies which witnesses the FBI is permitted to interview–with the clear implication that any other witnesses have been declared off limits to the FBI. Thus the “handful of women” accusing Kavanaugh of “alarming acts of sexual abuse” are probably not going to get the “further investigation” that Turley says “they deserve,” even while Turley busily wrings his hands over standards of proof and rules of evidence.

    If Trump ties the hands of the FBI investigators behind their backs, then all the hand-wringing over standards of proof and rules of evidence is just more political theater. Who puts a one week time limit on an FBI investigation? Trump does. Who tells FBI agents ahead of time which witnesses they can interview and which witnesses they cannot interview? Trump does. Why is Trump hamstringing the FBI investigation of Kavanaugh? November 6th, 2018, rapidly approaches. Tick tock tick tock tick tock tick tock tick tock tick tock . . . whimper.

    Turley also wrote, “Likewise, while Kavanaugh’s high school calendar would be admissible, it would not be particularly weighty as evidence.”

    That is what poker players call “a tell”. The FBI now has a time, a place and a list of names to investigate, thanks to Kavanaugh’s prep-school calendars, which he voluntarily submitted to the SJC, which already corroborate key features of Dr. Christine Blasey-Ford’s testimony to the SJC, and which clearly presuppose that Kavanaugh had no idea that his prep-school calendars would provide the FBI with a time, a place and list of names to investigate so as further to corroborate Dr. Christine Blasey-Ford’s testimony to the SJC. Now ask yourself why wouldn’t a lawyer and a Judge such as Kavanaugh know that his prep-school calendars corroborate his accuser’s testimony? TTemporary amnesia due to a thiamine deficiency caused by excessive consumption of “skis” (brewskis) at Timmy house (Tim Gaudet) on Thursday July !st, 1982, with Judge, PJ, Tom, Bernie and “Squi” (Chris Garrett–who went out with Christine Blasey for a couple of months that Summer and who introduced her to his circle of friends).

    What does Turley think the chances might be that house in which Tim Gaudet lived in 1982 does not fit the description that Dr. Christine Blasey-Ford gave to the SJC of the house in which the alleged sexual assault occurred? I don’t know. But the FBI is about to find out. Unless Trump forbids it. And if that happens then Turley is going to hear more squawking and screeching about standards of proof and rules of evidence than he could ever have imagined in his worst nightmare. That much I vow for sure.

    1. The White House ordered the FBI investigation. It was the senate who determined the scope and length of time, not Trump. Trump is not forbidding anything

      1. Excerpted from the article linked above:

        Best known for its work with the Swift Boat Veterans in 2004, CRC bills itself as a full-service communications firm “specializing in media relations, social media and issues management,” according to its website. It has long been the go-to communications firm for conservative organizations in Washington and across the country. Its current clients include the Federalist Society and the Judicial Crisis Network, the chief outside groups working to help confirm Kavanaugh.

      2. Apparently Trump isn’t limiting the scope but the WH counsel’s office (Don McGahn, Kavenaugh’s shepherd) is by specifying which allegations are to be investigated and which witnesses may be questioned.

        1. Thanks bettykath. (Sometimes L4D overshoots the target.) You’re still swell, anyhow. (Never stand behind the target when L4D draws her bow.)

        2. No one has limited which witnesses may be interviewed. The scope was limited to the more credible accusations.

          Swetnick’s accusation was not credible. She has a history of false sexual misconduct allegations. Her story would require her to regularly attend gang rapes, about every weekend, with no evidence of it at the time, or explanation for why she participated in gang rapes.

          L4D – “overshoot the target” does not mean that you shoot so forcefully that you shoot right through the target. It means you missed the target (or a runway) completely. When applied to aviation, it usually means you crashed because you carelessly missed the approach.

  10. The latest buzz is that the FBI is not limited in scope & has free reign

    FBI is already checking out gang rape stories at Yale University & who leaked Dr. Fords allegation to the Washington Post.

    1. this is a good activity for the FBI. they must get tired of real crimes to investigate, fun to investigate “Animal House” prep from 35 years ago

  11. I believe it started out, “We hold these truths to be self evident…….and went on to build a case that the citizens are superior to government.

    Does Yale still subscribe to that? Appears not.

      1. Again you display ignorance. Try this ‘and you are no heavy weight in the thinking business and a washout with objective analysis. Can’t you tell when you are being goaded in to painted corner and are supplying your own paint?

  12. After all why not. She clearly stated she was wasted and could not remember out one side of her mouth and then claimed only one beer out of the other. Can she have it both ways? Depends on who is writing the op-ed. More importanty depends on who is casting the ballot. this is trial and a criminal proceeding no matter how many claim otherwise. In this case of Constitutionalism versus Socialism. and Independence versus Totalitraianism.

      1. No One Has Come Forward to Back Up Ford, Not Even the Person …

        2 days ago – Christine Blasey Ford, a psychologist who has been in therapy … on Thursday that she has vivid memories of the alleged attack, but not … that night that bring me here today are the ones I will never forget. … but she does not remember who came to her rescue after she fled … Remember Barbara Mandrell?

        Every Key Moment From Christine Blasey Ford’s And Brett … – Digg

        3 days ago – Ford took a minute to read the letter and then said she had three areas she’d like to address. …. do not remember the details of what happened before and after their assault … Ford how she found her lawyers; Ford replied that she asked friends …. According to one reporter, these definitions were not truthful:.
        A former sex-crimes prosecutor analyzed Ford’s … – Washington Post
        Sep 18, 2018 – There’s no criminal trial, but Kavanaugh still has the presumption of innocence, … But, according to Fairstein, it was completely normal that Ford “didn’t remember” several details. “If she testifies, I would expect her to say ‘I don’t remember’ scores of … Perhaps more striking are the details Ford did mention.

        Prove it. Did you keep a diary, calander or daily notebook?

    1. Uff Da asked, “Can she have it both ways?”

      Your professed allegiance to objectivity is seriously in arrears, Uff Da. The questions you should be asking are A) How did Christine Blasey get to Tim Gaudet’s house on Thursday July 1st, 1982; B) How many beers (“skis”) did Chris Garret (“Squi”) drink at Tim Gaudet’s house on Thursday July 1st, 1982? C) How did Christine Blasey get home from Tim Gaudet’s house on Thursday July 1st, 1982? D) Did someone drive her home in a car? And E) if Christine Blasey got a ride home, then was the driver of the car sober? Which might lead back to question B) How many brewskis did “Squi” (Chris Garrett) drink at Tim Gaudet’s house on Thursday July 1st, 1982?

      Additional questions might include F) How did Ed Whelan find out about Chris Garrett going out with Christine Blasey for a few months in the Summer of 1982? And G) How did Ed Whelan find out that Chris Garrett is the one who introduced Christine Blasey to his circle of friends in the Summer of 1982? And H) for whom, exactly, was Ed Whelan working when he insinuated that Chris Garrett may have been the person who sexually assaulted Christine Blasey? And I) what does Ed Whelan think Chris Garrett is going to tell the FBI agents who will soon be interviewing “Squi”? And, finally, K) what, if anything, did Kavanaugh and Judge tell “Squi,” PJ, Tim, Tom or Bernie about Christine Blasey’s sudden departure from Tim Gaudet’s house on Thursday July 1st, 1982?

      1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – I want to know HOW she called anyone when she supposedly escaped from the house. She never spoke to taking a purse or bag with her. Would she have had a cell phone in 1982? Or 1985? And if not, how did she get a phone to call someone to pick her up.

        1. Possible but it would have been the size of a shoe box and usually with A BIG antennae for the roof.

          But to make it easy….

          The First Cellphone Went on Sale 30 Years Ago for $4,000 – Mashable

          Mar 13, 2014 – Somewhere in either Chicago, Baltimore or Washington, someone plunked down $3,995 to buy the Motorola DynaTAC 8000X, the first handheld cellphone, on March 13, 1984 — 30 years ago today.
          Missing: shoe ‎box
          1980s cell phones – how costly were the minutes – Brands – Tom’s …
          http://www.tomshardware.com › Forum › Brands

          Apr 15, 2005 – 13 posts – ‎1 author
          pusikaru.com — ikobsb … car mounted unit with a shoebox size unit in the trunk and the control head bolted to the center console. … Prior to AMPS (Advanced Mobile Phone Service) which was the first cellular system … active) could make a mobile call in a given market at one time! From:Tim923
          History of mobile phones – Wikipedia

          The history of mobile phones covers mobile communication devices that connect wirelessly to …. Mobile Telephone Service was a rarity with only 5,000 customers placing … by an operator, and reduced the size and weight of the subscriber equipment. …. It cost $100m to develop, and took over a decade to reach the market.
          Missing: shoe ‎| ‎Must include: ‎shoe
          Before the age of the iPhone – The Varsity

          Sep 24, 2017 – Since the advent of the first cell phone four decades ago, the way people communicate … iPhone 8, we take a look at how far cell phones have come through these years. … The ancient brick phone was the size of a shoe box. … hands-free operations, a calculator, and a market price upward of $2,500 USD.

          The answer is No.

          1. Michael Aarethun,

            You might not be aware but the blog only permits two hyperlinks per comment. I edited the above comment to allow it to post.

            If you would like to readers to review more than two links, this can be accomplished through the use of additional comments.

  13. This is all political not about truth. The Dems had the letter well in advance Feinstein could have at least discussed the letter with Grassley. It was held to do just what it has done create chaos and hold up conformation. By next Friday after the FBI investigate there will be more objections regarding the man. The Dems believe they will sweep the midterms and stop all progress of the Trump administration. The truth about CBF will come out after the harm is done to Kavanaugh and as Harry Reid said when he lied about Romney “it worked he didn’t get elected”.

  14. Jonathan Turley, this is a very important job interview. At stake, at a minimum, is instant lifetime tenure. So the so-called standards of evidence ought to be quite, quite low. From our judges we expect propriety; Kavanaugh has already failed that test merely from his yearbook.

    More, there is some reason to believe that he lied to Congess in the proceedings for his circuit court seat, irrespective of Thursday’s debacle. That is enough to begin disbarment proceedings and impeachment proceedings as well. Out with someone who has so little control of the baser instincts.

    1. Who are you and your kind to judge?

      We judged you prior to 2016 and moved to correct that mistake in our society.

      Liberal, Conservative what does that mean to us?

      It is neither one.

      It is a rejection of both.

      It is recognizing the Truth of that which you both have denied and rejected.

      It is the power of the citizen, the ultimate power of the independent, self governing citizen(s).

      It is the rejection of your rejection.

      We are reclaiming our Republic and rejecting iyour false God

      1. Haha! Who is “we”? What, you gotta mouse in your pocket?

        this is to “okay, I have imaginary friends in my head, sometimes” mikey

            1. David Benson is the King of Making Stuff Up and owes me eleven citations (one from the OED) and the source of a quotation, after seventeen weeks, and needs to cite all his work from now on. – you do realize that Hillary is a minority loser.

        1. Marky Mark Mark – I do follow your posts, as you well know, and I have become concerned about your mental health. It is time for you to, as David Benson would say. see a mental health professional. If you were a student in my class room, I would recommend to the administration that they have you examined or have your parents have you examined. With my pop psychology hat on, I could diagnosis you, however, at long distance I can only diagnosis what you write on here. Hence, you need to see specialist. If you have what I think, it cannot be cured and it cannot be helped by drugs, however you can modify your behavior once you know and they can give you help in behavior mod.

          1. Paul said:

            “With my pop psychology hat on, I could diagnosis you, however, at long distance I can only diagnosis what you write on here.”

            Say no more. Some time away from this blog would probably do you a world of good, Paul.

            1. Anonymous – periodically I take some time away, but no one seems to notice. 😉 It is sooooo depressing.

        1. “Putin stole it fair and square; we’re not giving it back” is not a great comment, Ms. Bragg.

          1. Late4Din-Din…….oh, sorry. I thought this is where one is free to express one’s opinion.
            And I was not commenting on the quote you’re suggesting.

            1. This is also the place where we are free to criticize one another’s opinions, Ms. Bragg. Those who would construe criticism as censorship are the utmost pathetic frauds of all. When you poke somebody in the eye with a sharp stick, Ms. Bragg, you don’t get to run and hide behind your mother’s skirts.

              1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – are you trying to pick a fight with Cindy Bragg? She is usually fairly low-key compared to you. She is more of an information gatherer while you are a propagandist. Did she fail to buy your propaganda? Most of us don’t.

                1. Paul C. Thank you….is L4D really R. Lien, also? She’s always had it in for me for some reason….These trolls must have nothing else to do….

                  1. Cindy Bragg – well, it depends on how much spare time you have on your hands as to how much trolling you can do. 😉

  15. I don’t see how the appropriate standard here is less than the criminal one. If you believe that a clear preponderance of the evidence suggests he did this and want to vote against him because of that, then you necessarily must also intend to impeach him from the court he’s already on, which will require a stronger standard than clear preponderance.

    1. It is much less than for criminal charges because there is no legal penalties involved; only being fired for which impeachment proceedings should begin immediately. That won’t happen of course; politics.

      1. He would need to be impeached for crimes or misdemeanors. It requires proof of those. So, if these Senators want to claim he did these things, put up or shut up. If they’re unwilling to seek impeachment, then all of this is just character assassination to achieve their desired political ends.

        1. Yes, there are allegations that he lied to Congess during his confirmation proceedings.

          1. I very strongly suspect that neither Kavanaugh nor Judge know from their own recollection what they did to Christine Blasey at Tim Gaudet’s house on Thursday July 1st, 1982. But they may have bragged about it while they were still drunk or otherwise said something afterwards to their other friends–PJ, Tom, Bernie, Tim Gaudet, himself, or Chris Garrett (“Squi”)–who were in the house with them but not in the bedroom where the assault occurred. That might explain how Ed Whelan found out enough to cast suspicion on Chris Garrett–who most likely brought Christine Blasey to the party and who, for all we know thus far, may have taken her home if he was sober enough to drive.

            So, if any of Kavanaugh’s friends told Kavanaugh the next day what he or Judge might have told them while the former were still drunk, then certain possibly false statements Kavanaugh made in his testimony to the SJC–such as, he never blacked out from drinking, or his supposed ignorance of his accuser, for instance–could not be defended on the grounds of temporary amnesia due to excessive alcohol consumption.

            There’s an exchange in Kavanaugh’s SJC testimony where he says that he knows what happened on an occasion when he was observed stumbling out of a bus at Yale. He did not say that he remembers what happened. Only that he knows what happened. It sounds like lawyer talk for my most trusted friends always tell me afterward whatever I did whenever I was too drunk to remember it for myself. I wonder how many of those trusted friends will continue covering for Kavanaugh when the FBI shows up to interview them this time around.

            1. Big hole in your theory. You seem to ignore Ford’s close girlfriend Leland Keyser who was identified by Ford as present. Leland said she did not remember the party described and she did not know Kavanaugh and had never seen him with or without Ford. Kind of hard for Leland to miss Kavanaugh and Judge whom Ford described as already inebriated and in the room where they all were.

              1. Gabby,. – Expect another “thiamine deficiency/ temporaray amnesia” diagnosis from Dr.Diane ( AKA “L4D”).
                Applied to Ms. Keyser, that diagnosis will explain away why Keyser remembers no such gathering 😉😀😂.

                1. The refusal of Leland Keyser to corroborate Dr. Blasey-Ford’s account is not a big hole in the theory that Chris Garrett introduced Christine Blasey to his circle of friends including Kavanaugh, Judge, PJ, Tom, Bernie and Tim Gaudet. If, however, the FBI reports that Chris Garret says that he never introduced Christine Blasey to his circle of friends including Kavanaugh, Judge, PJ, Tom, Bernie and Tim Gaudet, then that prospective finding would utterly demolish Dr. Blasey-Ford’s account. Until then, keep clinging to the Leland Keyser straw at which you’ve grasped. But don’t try to breathe through it while under water. Leland Keyser says she believes Dr. Blasey-Ford’s allegation against Kavanaugh and his crew. Her lawyer says Leland Keyser will fully cooperate with the FBI investigation.

                  1. Keep telling yourself that, L4B.
                    Just dismiss anything that undermines your beliefs with a wave of the wand, and construct your alternative views with your house of cards theories.

                    1. Your President needs you, Tom. Trump just can’t count on the FBI to connect Dr. Christine Blasey-Ford to the Clinton Foundation by way of Perkins Coie and Glenn Simpson of Fusion GPS by the start of business next week. Only Nash can do that. But Nash is wasting precious time dawdling on the Turley blawg while The Clintons exact their long-awaited revenge upon Kavanaugh for demanding to know every last salacious detail of Bill’s consensual sexual relationship with Monica Lewinski in the Oval Office–for Cripes sake. It’s so unfair. Pshaw!

                  2. Keep grasping at your half-assed July 1, 1982 beliefs.
                    Maybe your Clouseau-like detective skills can aid the FBI and the case will be solve ED.

                    1. It’s not about solving the case, Gnash. It’s about corroborating Dr. Christine Blasey-Ford’s allegation against Kavanaugh. The FBI is not conducting a criminal investigation. The FBI is conducting a background check on a Supreme Court nominee in order to eliminate the possibility that Kavanaugh might be subject to blackmail–including, especially, blackmail at the hands of The POTUS, Trump.

                  3. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – can you not see the flaw in the pudding? Leland cannot both believe Chrissy and not know Judge Kavanaugh or be at that party that Chrissy says she was at.

            2. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – it seems that much is starting to come out about Chrissy Ford and her colorful career in high school and college. Remember when I asked if she might be the neighborhood bicycle? That might have been the right question to ask.

              1. OFCOLA. Paulpuckey blathered that “much is starting to come out” from a group of people who are already on record as stating that they never met Christine Blasey, don’t remember Christine Blasey, and that, even if they had ever met Christine Blasey, then she was not in their circle of friends, so they didn’t really know her–least of all that she was supposedly the “neighborhood bicycle.”

                Now go to Georgia and talk to Chris Garrett and find out what he has to say on the subject. Or wait for the FBI report to find out what Garret has to say. Maybe then “much will start to come out” about “Squi” being the neighborhood “hunky beefcake” used to lure unsuspecting girls into the clutches of the Kavanaugh Crew. Or not. What does Paulpuckey think? Or does he at all?

                1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – Paul thinks a lot, probably too much which got him in a lot of trouble at school. We need to see Chrissy’s yearbooks. And we need to talk to that classmate of hers at UNC that tweeted out about what appear to be wild times in Chapel Hill. If Brett has a history, so does Chrissy. And what about that 2nd door?

          2. David Benson is the King of Making Stuff Up and owes me eleven citations (one from the OED) and the source of a quotation, after seventeen weeks, and needs to cite all his work from now on. – there are allegations you cribbed large portions of your dissertation.

            1. There was nothing from which to crib before Dr. Benson wrote his pioneering and seminal dissertation.

              1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – What is the title of David Benson’s dissertation?

    2. I do beleive he needs to be removed from his current position and denied a seat on SCOTUS. HE isn’t FIT TO BE ON ANY COURT..

      1. If Trump has rigged the FBI investigation of Kavanaugh to arrive at the forgone conclusion that Kavanaugh is innocent as dictated to the FBI by Trump, and if The Democrats gain control of The House, then Trump could be impeached for conduct in office having nothing to do with the Trump campaign’s conspiracy with Russia to defraud the United States. Who do you think Ed Whelan was working for when he was fed enough information to cast suspicion at Chris Garrett to deflect from the accusation against Kavanaugh?

  16. Yes…let’s not forget that 15 year old Ms Ford arrived at the party wasted drunk

    In that frame of mind just how much of what Ms Ford has to say today can we possibly believe or for that fact is even considered a legal binding statement?

    1. At hocuspocus –

      She testified that she had one beer at the party. Show me any evidence to the contrary.

      I suppose that your handle means that you can magically create evidence out of nothing.

      1. Did you know that if you hover you mouse over the avatar alongside hocuspocus13’s comment you can click on a button that allows you to view the profile along with an enlarged rendition of the photo negative of a nude woman who appears to be holding a mask to her face that might raise disconcerting questions about the moral character of hocuspocus13?

        1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – you have something against nudes? Didn’t you take Art History? Don’t you go to museum? The human form is beautiful, what is your problem?

          1. Go take a look at the photo negative at issue. Then report back with your blow it out your backside art appreciation spiel.

            1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – you don’t look at the negative, you look at the positive.

      2. Show me any evidence that this party ever happened outside her imagination.

        1. Tabarrok,..
          Did you mean Ford’s imagination, L4B’s imagination/ inventions, or both?

          1. Blasey’s. Nobody gives a rip about Diane’s imagination except her long suffering family and the people here who take it upon themselves to reply to her.

        2. Kavanaugh’s calendar entry for Thursday July 1st, 1982, memorialized the “skis” party at issue. The FBI will soon find out whether the house in which Tim Gaudet lived in 1982 has or had a short narrow staircase leading to a bedroom on the right-hand side as you go up the stairs and a bathroom directly across the hall from that bedroom. The FBI will soon find out whether the house in which Tim Gaudet lived in 1982 is situated near Connecticut Avenue and not too far from the country club at which Christine Blasey swam. The FBI will soon find out whether Chris “Squi” Garrett introduced Christine Blasey to his circle of friends including Kavanaugh, Judge, PJ, Tom, Bernie and Tim Gaudet. The FBI will soon find whether and, if so, when and where Christine Blasey visited Chris Garrett at the hospital. The FBI will soon find out if Kavanaugh and Judge said anything to the other people at the “skis” party at Tim Gaudet’s house on Thursday July 1st, 1982, after Christine Blasey’s sudden departure from that house. It’s entirely possible that the FBI might soon find out how Christine Blasey got home from Tim Gaudet’s house on Thursday July1st, 1982.

          The tide against which Tabarrok is swimming may as yet carry the Pillory to Tabarrok.

          1. L4Yoga enables David Benson, R. Lien and Marky Mark Mark – don’t you get it? If Gaudet introduced her to his group then he would have taken her home. He probably would have brought her. That makes her story even worse. And she refused to name Gaudet.

    2. And it was a regular participant at them. Likewise the Avenetti contribution. By their own admissions we know they are guilty.

      By supporting them the guilt of their supporters.

      Same with the Clintons – and all the others.

      Your words mean nothing

      Your actions in both parties tell us all we need to know.

      You view this as a passing phase?

      We see it as the end of your false ideology and the end of your rule.

      We are taking Our Country and Our Republic and Our Independence back.

      You have no further meaning or importance.

      Trash to be emptied at the end of a longish day.

  17. Likely the best and clearest article I have read here, and also very timely. Thank you Jonathan Turley for this luminous writing.

  18. JT – You are asking way too much of mere mortals. When Yale Law is shutting down classes to send students to protest Kavanaugh, is there a standard that can be met? Does anyone even remember what the old standard was?

    1. The same as now: don’t nominate a lying, authoritarian, woman-hating, rapist-wannabee to a lifetime appointment on the United States Supreme Court.

      this is to paulie – georgie

      1. Marky Mark Mark – Judge Kavanaugh has 65 women standing behind him. How many could you get to stand behind you? And that whole gang rape thing is just over the top. I would even charge you with it. 😉

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