Rome: Part I

Kavanaugh v. Ford et al.

(Photo Credit: Getty Images)

So… apparently, there was something going on in Washington today?

Any surprises? No… Did we learn anything new? Not really… a minor thing, we learned that Rachel Mitchell was in contact with the Majority Staff of the U.S. Senate Judiciary Committee last week, and not just a couple of days ago as had been implied… but that’s about it, and that’s relatively minor. So what’s going on? What are we to believe?

Facts:

  • So, many people -good people- are asking what the facts are. Less inquisitive people are conversely more partisan and presume to know the facts already of course. But, no, I don’t think any of us know the facts or will ever know the facts. These are the facts, and they are indisputable:
  • The fact is that Dr. Christine Blasely Ford has accused Brett Kavanaugh of sexual assault.
  • The fact is the allegation is from 36 years ago.
  •  Her details about the party are fuzzy, but her details of the alleged assault are specific.
  • The fact is that Brett Kavanaugh has categorically denied the allegation.
  • The fact is that Brett Kavanaugh’s submission to his high school yearbook implies a conquest of women mentality.
  • The fact is that the other person named as being present, Mark Judge has categorically denied the allegation.
  • The fact is that Mark Judge wrote a book about his cavalier and brazen childhood that seems to corroborate the type of party that Dr. Ford describes.
  • The fact is that Brett Kavanaugh has admitted to underage drinking and partying. This has been dismissed by sympathetic media under the disclaimer of ‘everybody does it.’
  • The fact is that Dr. Ford told a therapist of the alleged assault years ago before Brett Kavanaugh was a Supreme Court nominee.
  • The fact is that the relative location of the party, as described by Dr. Ford, is not near the residences of either Dr. Ford or Judge Kavanaugh.
  • The fact is that Dr. Ford has taken a polygraph, administered by a former member of the FBI.
  • The fact is that Brett Kavanaugh has been screened by the FBI six times in his career.
  • The act is that there are at least 6 Levels of FBI background-checks and that not all background checks are equal.
  • The fact is that Dr. Christine Blasely Ford is a registered Democrat.
  • The fact is that Dr. Christine Blasely Ford has put her reputation, anonymity, and (to a degree) her career on the line.
  • The fact is that Judge Kavanaugh is still a U.S. Circuit Judge on the D.C. Circuit Court, regardless of the outcome of the U.S. Senate vote.
  • The fact is that, as Judge Kavanaugh stated today, no allegations were raised in her earlier and very public career.
  • The fact is that the appointment to the U.S. Supreme Court is unlike any other position with the exception of President of the United States.

Optics:

Factual optics

  • If I’m sympathetic to Dr. Ford, I came out of the hearing finding her believable and a sympathetic heroine.
  • I’m adverse to believing Dr. Ford; I came out of the hearing finding her gaps in recollection -of even things within the past two months, to be troubling.
  • If I’m sympathetic to Judge Kavanaugh, I came out of the hearing finding him believable and tragic hero.
  • I’m adverse to believing Judge Kavanaugh; I came out of the hearing finding his absolute denials to be, well just a bit too absolute considering the multiple circumstantial accusations.

Partisan Optics

  • If I’m sympathetic to Dr. Ford, I found the line of questioning by Rachel Mitchell to be a pathetic avoidance of responsibility by the 11 White Men of the Republican majority in the face of the Democratic minority which includes four women.
  • If I’m sympathetic to Judge Kavanaugh, I found the line of questioning by Rachel Mitchell to be an extension of incredible courtesy to a woman alleging sexual assault by a man.
  • If I’m sympathetic to Dr. Ford, I’m wondering why a prosecutor was brought in to ask questions, and I’m wondering why the same prosecutor didn’t question Judge Kavanaugh.
  • If I’m sympathetic to Judge Kavanaugh, I’m wondering why Senator Feinstein had information about Dr. Ford’s allegation and did not inform the full Judiciary Committee immediately.
  • If I’m sympathetic to Judge Kavanaugh, I thought his anecdote about his daughter’s prayers was moving. If I’m sympathetic to Dr. Ford, I believe that is an example of pathos, not ethos or logos.
  • If I’m sympathetic to Dr. Ford, I believe Kavanaugh’s point-by-point refutation of the allegations to Senator Kennedy at the end of the hearing like ‘lawyerese’ and a guilty man’s argument. If I’m sympathetic to Judge Kavanaugh, I thought his point by point response to Senator Kennedy was total and encompassing, sworn before God and Country.

Concluding facts:

The fact is that the appointment to the U.S. Supreme Court is unlike any other position with the exception of President of the United States.

  • Tom Eagleton was a successful US Senator, MO State Attorney-General, and Lt. Governor of MO, but when considered for to be the nominee for Vice President of the United States, his use of electrotherapy to combat depression became public, and he withdrew his nomination.
  • Zoe Baird was a successful lawyer, worked as Attorney-Advisor at the Office of Legal Counsel at the U.S. Department of Justice from 1979 to 1980 and was Associate Counsel to President of the United States Jimmy Carter from 1980 to 1981. Baird had very high profile positions, just as Kavanaugh had as a lawyer in the Ken Starr investigation and later Staff Secretary in the Bush White House. Yet, after being nominated to be US Attorney-General, it came out that Baird had hired illegal immigrants and failed to pay taxes.
  • President George W. Bush nominated well-known and highly regarded Bernard Kerik to become United States Secretary of Homeland Security, but Kerik withdrew from the nomination, after acknowledging that he had unknowingly hired an undocumented worker as a nanny and housekeeper.
  • No one accused U.S. Senator Tom Daschle of misconduct for his 18 years in the Senate, but after his nomination to be HHS Secretary in the Obama Administration, Daschle’s’ failure to report and pay income taxes accurately became known, and he withdrew his nomination.
  • And the list goes on and on… Kimba Wood, Bobby Ray Inman, Hershel W. Gober, Linda Chavez, Andrew Puzder, Ronny Jackson

The fact is that scandals break no matter how many times a candidate or nominee has already been vetted as the candidate or nominee is elevated higher and higher. The argument that Kavanaugh had already been vetted is not a reasonable argument.

I want to make it clear; in my Op-Ed in the Providence Journal July 26, 2018, I definitively stated that Kavanaugh was qualified to be confirmed as an Associate Justice of the United States Supreme Court. I firmly believe the President of the United States has the right to nominate his person to the Court. Barack Obama had that right, and Donald Trump has that right too.

At this point, however, there is too much of a cloud of suspicion. Kavanaugh ought not be confirmed to the Court at this point. Either a full deep FBI investigation should be authorized, and the vote on confirmation in committee and certainly on the floor of the Senate should be postponed, or the nomination should be withdrawn. I do not recall any accusations against Associate Justice Neil Gorsuch during his nomination process, and that seat would have changed the balance of power in the US Supreme Court. The argument that this is merely a smear campaign or Democrats seeking their pound of flesh is illogical. Is there a political angle to these events, absolutely, just as there was a political angle to the Senate Republicans block of the Merrick Garland nomination. Democratic partisanship does not necessarily mean that Brett Kavanaugh is innocent. The Democrats can be playing partisan games, and Judge Kavanaugh may be guilty of some wrongdoing; the two are not mutually exclusive. The Supreme Court is a privileged, not a right.

The Democratic strategy is not without risks; a different nominee might be another Samuel Alito, not a Harriet Miers. A withdrawal may be an ideological loss for the Republicans as well. A different nominee may be, ironically, another Anthony Kennedy and not a Robert Bork. As I concluded in my Op-Ed, “So, who is the real Brett Kavanaugh?” Well, after the confirmation hearings and today’s extended hearings, I’m not sure any objective person knows. I’m not sure we will ever know. Do we want doubts around another member of the Supreme Court? I’m not comfortable with another Clarence Thomas – Anita Hill situation. I’m not comfortable with 11 men pushing through the confirmation of a man, nominated by a man to fill the seat of a man. The optics and lingering doubts are too much for me, though I do believe that President Trump has the right to nominate a conservative to the Supreme Court of the United States.