Below is my column in The Hill newspaper on the growing pledges from House and Senate Democratic members to investigation and possibly impeach Brett Kavanaugh if he is confirmed this week. It would constitute a dangerous and reckless precedent for Democrats to pursue with any new majority.
Here is the column: Continue reading “Democrats Pledge To Revive A Cadaver Synod To Remove Justice Kavanaugh”
Charles Ludington, a college friend of Supreme Court nominee Brett Kavanaugh, released a statement that directly contradicted the testimony of the judge on this drinking in college. Ludington told The Washington Post that he gave a statement to the FBI that Kavanaugh was “belligerent and aggressive” as a drunk in college and once threw a beer in the face of someone who insulted him. He is the third college friend who described Kavanaugh as a belligerent drinker in college.
Below is my column in The Hill newspaper that looks beyond this immediate controversy over the Kavanaugh nomination toward three basic reforms of the confirmation process. With the FBI investigation interviewing witnesses on the first two allegations of sexual assault, it is not clear what new information may surface at the end of the week. In the interim, it would be useful to discuss the now obvious failure of our confirmation process. I have been a long critic of the process, but the Kavanaugh confirmation process has magnified these flaws to a grotesque degree.
Notably, Kavanaugh now has been given the SNL treatment with a performance by Matt Damon that is that type of comical portrayal that hits hard in public controversy.
Here is the column:
As I discussed in yesterday’s earlier in a column, Sen. Sheldon Whitehouse (D., RI) going through the yearbook entries of Brett Kavanaugh was one of the most bizarre moments of confirmations in our history. Whitehouse was attempting to undermine Kavanaugh’s account of not being a black out drunk or participating in sexual exploits at parties with his friends. The hearing devolved into a discussed of the terms “boofing” and the “Devil’s Triangle.” The terms are widely defined on the internet to mean anal sex and a threesome (with one male and two females). Kavanaugh insisted that they meant farting and a drinking game. That led many to question his veracity (I am thankfully ignorant of either term but I have come to realize that my high school and college years were monastic in comparison to most everyone else). One person using a congressional computer however decided to try to add at least some support for Kavanaugh on the Internet by changing the definition on Wikipedia. He or she only succeeded in causing a row that highlighted the controversy over Kavanaugh’s answers.
Continue reading “Definition of “Devil’s Triangle” Changed On Wikipedia To Make Kavanaugh’s Answer”
Yesterday’s Kavanaugh hearing left many questions on both sides, including the ultimate question of the alleged attempted rape of Dr. Christine Blasey Ford. However, for lawyers, one exchange sticks out from a professional standpoint. Ford was questioned why she delayed the hearing due to her alleged fear of flying and, more importantly, why she did not simply meet with committee staff in California. Ford admitted that, while she does not like to fly, she does in fact routinely fly around the world, including frequent trips to nearby Delaware. The most striking statement however was the suggestion that she was never told by counsel that she did not have to fly to Washington and the Committee was ready to fly to her — a prospect that she said she would have welcomed. That left a lingering question of whether her counsel did not tell her of a material offer or whether she misrepresented the reason for her delay in speaking to the Committee.
In a new twist, Committee staff has reportedly interviewed two men who say that they were actually the two teens who may as assaulted Christine Blasey Ford in 1982 and not Judge Brett Kavanaugh. It is not clear what further information will be released on this latest disclosure but it raises an obviously serious matter for both sides. I remain leery of this lat minute leak and the lack of details — unfortunately a common element in this ongoing controversy.
Sen. Jeff Merkley (D-Ore.) filed for an injunction in federal court to stop a final vote on Brett Kavanaugh. The filing claims that the Republican majority is obstructing his constitutional duty to give advise and consent on nominees. The filing is entirely and utterly meritless. It will be dismissed and is unlikely to receive a hearing on the claim.
The Senate Judiciary Committee has announced the identity of the lawyer who will conduct the primary questions of both Dr. Christine Blasey Ford and Judge Brett Kavanaugh. Rachel Mitchell, the sex crimes bureau chief for the Maricopa County Attorney’s Office in Phoenix, is someone with considerable experience in not such sex crimes but delayed sex crime prosecutions. It is an unusual step for the Committee but not unprecedented. Congress will hire outside counsel or allow counsel to question witnesses on some occasions, particularly at fact-finding stages. I was hired a lead counsel to represent the United States House of Representatives in the successful challenge of the unilateral funding decisions of the Affordable Care Act by President Barack Obama. Continue reading “Arizona Sex Crimes Prosecutor Hired To Question Ford and Kavanaugh”
With the addition of a second woman alleging sexual misconduct of Brett Kavanaugh, it is still not clear what factual disputes will have to be addressed before a final confirmation vote occurs in the Senate. Putting aside questions over late timing of the allegations, there is agreement that the Senate will have to consider both the allegations of Dr. Christine Blasey Ford and the new allegations of Deborah Ramirez. What is far more troubling is the continued disagreement on the standard that Senators should use in considering the allegations. While objecting that their Republican colleagues are not prepared to give the women an “impartial hearing,” various Democratic senators have declared (before any testimony is heard) that they believe Dr. Ford – and thus do not believe Judge Kavanaugh. That is troubling enough, but Sen. Mazie Hirono (D., HI) has introduced a far more troubling element in suggesting that she may decide the factual question on the basis of Kavanaugh’s jurisprudential views. Continue reading “Hirono’s Hedge: Kavanaugh Not Entitled To Presumption Of Innocence Due To His Ideological Views”
After the Senate agreed to extend the last deadline on Friday to 2:30 today, Christine Blasey Ford has agreed to testify while seeking to continue to negotiate on some details with the Senate. It is not clear how much progress has been made since Ford previously said she would testify but would not agree on the date or conditions. Then she pulled back from that commitment while seeking conditions. Now she is saying again that she would testify but again asking for conditions and negotiations.
Continue reading “Ford Agrees To Testify Next Week But Seeks Further Negotiation On Conditions”
The unfolding drama over the allegations of Christine Blasey Ford just got even more bizarre as Ed Whelan, president of the conservative Ethics and Public Center (EPPC) released the picture of a remarkably similar looking teenager who could have been the culprit in the alleged attempted rape. While Ford insists that she could not be mistaken, the release of the photo adds a new element to the hearing . . . and could raise some interesting legal issues after suggesting Chris Garrett (right) could be responsible for the attack. The problem is that there is not a single scintilla of evidence that has been offered to link Garrett to the alleged assault. He has simply been drop into these boiling cauldron and the only explanation is his similar looks and home in the area (which is hardly surprising for schoolmates who attended the same school).
Update: Whelan has now issued a statement that “I made an appalling and inexcusable mistake of judgment in posting the tweet thread in a way that identified Kavanaugh’s Georgetown Prep classmate. I take full responsibility for that mistake, and I deeply apologize for it. I realize that does not undo the mistake Continue reading “Reasonable Doubt Or Per Se Defamation? Republicans Throw Chris Garrett Into The Fray [UPDATED]”
Below is my column in the Hill newspaper on the demand of Dr. Christine Blasey Ford that the FBI investigate her allegation of attempted rape against Judge Brett Kavanaugh when they were high school students. Ford has been given the opportunity to present her allegations before the Senate, which delayed its Committee vote on the confirmation to the Supreme Court. She can certainly refuse to testify. However, neither the Senate nor the FBI customarily strikes such a quid pro quo agreement for testimony. Ford can testify or not testify but, if she wants her allegations to be considered, she cannot set conditions on the Senate for such testimony.
It appears that Ford is reversing her latest position and may testify next week but not on Monday and only if the Senate can demonstrate that the hearing will be fair. In the meantime, the Senate is rumored to be preparing for a female lawyer to question Ford. That is not necessarily good news. A female lawyer may have less qualms about pressing Ford on inconsistencies than a male Senate just a few weeks away from an election. If Ford does not testify, the Republicans can treat her allegations as unproven and unsupported — and move toward a final vote.
Here is the column:
Continue reading “The Decision To Testify Rests With Ford But Not The Conditions For Her Testimony”
Below is my column in USA Today on the different outcomes possible in the ongoing Kavanaugh controversy. These scenarios have become more complex after a hearing was schedule for Monday and then Dr. Christine Blasey Ford announced that she would not appear. She has declared that the FBI must investigate her allegations of attempted rape as a condition of her testimony. What is clear is that the last minute allegation has galvanized the Democratic ranked, including Missouri Sen. Claire McCaskall. Obviously, if Ford does not show up at the hearing the GOP could use the refusal as a basis for treating the allegations as unproven and proceed to a vote on the merits. If she does show up, Kavanaugh is likely in for one of the most brutal hearings in history.
Here is the column: Continue reading “A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing”
Two more people came forward yesterday in the still unfolding drama surrounding the allegations of Dr. Christine Blasey Ford that Judge Brett Kavanaugh attempted to rape her when they were both high school students. Cristina Miranda King says that she heard of the incident from others while in high school. In the meantime,Patrick J. Smyth, a Georgetown Prep alum who graduated in Kavanaugh’s class, contacted the Committee and categorically denied the allegations of Ford (who identified him as the third person (other than Kavanaugh and his friend Mark Judge) as present during the assault. Continue reading “Former Schoolmate Says That She Was Told About Sexual Assault On Ford While Third Alleged Witness Denies The Incident Ever Occurred”
Below is my column in the Hill newspaper on the unfolding controversy surrounding the allegations of attempted rape leveled against Judge Brett Kavanaugh. The Republicans have called for a Monday hearing with both Dr. Christine Blasey Ford and Kavanaugh. However, while saying earlier that she was prepared to testify, the Committee said that Ford had not responded to multiple invitation. She has called for an investigation before she will testify — a condition that is difficult to square with her earlier statements via her counsel. In the meantime, Democrats have objected that more witnesses have not been called, including Kavanaugh high school friend Mark Judge. Judge however has indicated that he would refuse to testify. In other words, this is a complete mess.
Here is the column: