The #MeToo mugging of Judge Brett Kavanaugh jumps the shark. Ahead — at least, for GOP nominees — are vicious smear campaigns orchestrated by Democrats and their allies in leftist media. Some will fail, while others succeed; but all will collectively deter potential nominees from putting themselves — and, most contemptibly, further deter them by putting their families — in the line of fire.
Begin with Democrats’ phony justification for stopping at nothing to defeat Kavanaugh.
“This One is for Merrick.”Hardly. In my Feb. 2017 piece on the Garland nomination, I noted that (a) Supreme court nominees have been denied a vote many times; and (b) two Democratic Senate Judiciary Committee (SJC) chairmen (Joe Biden in June 1992 & Chuck Schumer in Jan. 2007) publicly warned sitting GOP presidents (Bush 41 & Bush 43) that no GOP nominee would be confirmed to a Supreme seat until after the next presidential election. In my piece I summarized one expert’s compilation:
Hoover Institution scholar Adam White writes that the Senate has no obligation to vote on any president’s judicial nominee. In all, Presidents have nominated 160 people to the Supreme Court, of which 36 (exactly 22.5 percent) were not confirmed, with 25 of those (70 percent) not even getting a vote. (N.B., the 124 confirmations include 12 justices confirmed twice; hence the 112 total number for different justices.)
Another compilation, by policy maven John Lott, tabulates more historical data on federal court nominations, and puts Kavanaugh’s two nomination battles in clearer context:
Eighty-seven justices were nominated between 1789 and 1950, and the time from nomination to Senate vote averaged just over eleven days. But this changed dramatically over the next half century. From 1951 through 1975, the average confirmation process increased to more than 50 days. Between 1976 and the present, it has averaged at least 75 days (the average rises to 90 days if we count Merrick Garland, whose nomination lapsed after a new Congress was seated in 2017, though it could be argued that his nomination was rejected immediately).
Democrats have opposed Brett Kavanaugh both times that he has been considered for a judgeship. When he was nominated to the D.C. Circuit Court in 2003, his confirmation battle lasted 1,036 days. There were no allegations of sexual misconduct that caused that delay.
Kavanaugh’s circuit-court confirmation battle was the seventh longest of the 366 that occurred from the beginning of Carter’s administration through to the end of Obama’s. Bill Clinton’s circuit-court confirmation averaged 231 days, George W. Bush’s 362, and Obama’s 278.
Garland was, to be sure, well qualified; but his being denied a vote was well within the history of how the Senate has treated Supreme Court nominees.
Next, consider these ugly facets of the Kavanaugh catastrophe — none of which apply to the Garland nomination, the nominee (and his family) having been spared character assassination: (a) “late-hit” politics; (b) going public with toxic allegations by partisan accusers; (c) compromising the integrity of senatorial advice and consent; (d) the impact of unbridled political viciousness on American society.
“Late-Hit” Politics. SJC ranking Democrat Dianne Feinstein first heard from Christine Ford on July 30; yet she sprung her party’s trap on September 11, 43 days later, on the eve of the scheduled vote. Worse, after the old saw about the hypocrite who murders his parents and pleads the court for mercy due an orphan, Democrats insisted on postponing an SJC nomination vote so that the FBI could conduct a background check on Ford’s allegations. Worse, Feinstein concealed from the GOP members — including SJC chairman Charles Grassley — the full contents of the letter Ford wrote to her. This made identifying the case’s weak points harder.
Worse still, “Di-Fi” did all this despite having doubts about Ford’s veracity.
Just made public is Feinstein’s Sept. 20 letter to SJC Chairman Grassley, attaching the July 30 one-pager Ford sent to Feinstein. The Ford letter asserts:
Worst of all is that steps were taken to bolster Ford’s position, most notably by scrubbing her social media accounts. This scrubbing could not possibly have been done by the user (Ford) alone, from her devices, even with expert assistance. It surely required cooperation by the providers — Google, Facebook, Twitter, etc. Top management would have to issue orders instructing senior network administrators to wipe clean the company’s own copies of Ford’s postings. This masks the full extent of the accuser’s hyper-partisan leanings, largely eliminating attacks on her credibility due to her partisan motives.
Which puts Di-Fi in the unflattering light of having declined to seek an FBI investigation despite her having doubts about the accuser’s tale. She could easily have gone to Grassley in confidence and shown him the letter. Grassley surely would have okayed asking the FBI to conduct a brief supplemental background check. Alan Dershowitz has said that such a check would only take a few days — having been interviewed by the FBI some 500 times about his students applying for government positions requiring a security check, he should know. But here is then-SJC chairman Joe Biden, in 1991, during the Clarence Thomas hearings, lecturing (1:08) one and all about FBI investigations. Said Joe: The FBI does not reach conclusions and recommendations; they simply gather data. The Senate assesses the product. But confirmation background checks still can be useful.
Instead, Di-Fi sprung a #MeToo trap at five minutes to midnight. By doing so, Di-Fi forced the accuser to go public to bolster her credibility. Had Di-Fi gone FBI in August instead of rogue in September, the accuser might have been spared exposure, as likely the FBI would have found insufficient corroboration to pursue further.
But one late hit proved not enough. Enter New Yorker#MeToo journalist Ronan Farrow, whose articles were instrumental in bringing down sexual predators Harvey Weinstein and Les Moonves. Farrow tried for a hat trick and came up with an own goal: a new accuser, one Deborah Ramirez, who asserted that BK shoved his privates in her face at a Yale frat party. Sounds like an X-rated version of an Animal House Delta affair (4:03). After six days of recovering memory, Ramirez, who admits she was so drunk that she was “on the floor, foggy and slurring her words,” could point to no eyewitness. Nor does anyone she named recall her telling about the incident at the time. The New York Times, not exactly a right-wing rag, could not find a single witness after a week in which the Times conducted several dozen interviews.
Toxic Allegations, Partisan Accusers. Today’s #MeToo era has created an atmosphere akin to the 1692 Salem Witch trials. After the fashion of Nathaniel Hawthorne’s The Scarlet Letter “A” affixed to the forehead of adulteress Hester Prynne, males accused today of sexual assault or harassment receive a Scarlet “P” as a (sexual) predator. Given toxic allegations, a decent respect for elementary due process due the accused should make initial investigation confidential. When the very airing of a toxic charge would irremediably taint a nominee — exactly what transpired with the Clarence Thomas 1991 confirmation hearing — disclosure of unverified allegations by Congress amounts to a de facto bill of attainder.
As to Christine Ford, the initial mainstream media and Democrat portrait of her as an innocent, traumatized accuser finally mustering the courage to step forward — has been shredded. First, the holes in her story are not random. Where her unverified allegations help her — as to matters not verifiable — she is nearly certain. (Her certitude has grown in the past fortnight.) But where an assertion of certitude is potentially fully verifiable — place, date and time — she alleges gaps in memory. If she had said that she remembers X’s house as exact locus of the assault, she runs the risk that the accused can prove he was away that weekend attending cousin Seymour’s wedding. And had she said that she remembers the date as Month X, Day Y, at Hour Z, the accused might be able to document that he was at home with his parents, recovering from minor surgery.
Thus, by being indefinite as to matters potentially definitively resolvable, Ford guarantees that the accused cannot ever fully clear his name.
It gets worse. Ford went to the Washington Post, which, like Sen. Feinstein, sat for weeks on the information. Here is a succinct summary of her position — vigorously rejected (13:40) by Kavanaugh:
Blasey Ford claimed that sometime in the 1980s, somewhere in Montgomery County — a county with a population of about a million people — Brett Kavanaugh committed sexual assault. Blasey Ford never told anyone about this event until at least three decades later. Her husband told the Washington Post that Blasey Ford told a version of the story for the first time in couples counseling in 2012, when she “voiced concern that Kavanaugh — then a federal judge — might one day be nominated to the Supreme Court.” He was widely reported at the time to be Romney’s top choice.
The Washington Post had to fudge Blasey Ford’s story to explain away a major discrepancy between the 2012 the rapist notes and the letter being concealed by Senate Democrats. In the 2012 version, there were four assailants, versus two in the letter. The Post claimed the therapist mistook that there were four boys at the party for four boys being in the room. Except the Post knew — but refused to inform their reader — that in the more recent version of the tale there were only three boys at the party — and a girl, Leland Keyser.…
By Sunday the three other alleged partygoers had all sent the committee statements, under penalty of felony, denying any recollection of any party like the one described in the letter. Keyser, the only woman named by Blasey Ford and a lifelong friend of hers, went further. Her statement says: “Simply put, 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, or without, Dr. Ford.”
Given a choice between believing the therapist and Ford, the former should get the nod. The therapist was taking contemporaneous notes in her professional capacity. Ford disputed the notes six years later, based on her belated recollection of events six years distant.
Finally, Ford was, according to a blogger who rescued from cyber-purgatory her school’s 1982, 1983, and 1984 HS yearbooks, was a happy participant in hard partying rituals — lots of drinking; seems the gals often partied as hard as the guys. This complements nicely Kavanaugh’s HS beer parties. This proves neither guilty of anything beyond having fun; but it makes it harder to sell her story as an innocent among predatory party guys.
Senatorial Advice and Consent. The Kavanaugh debacle endangers the exercise of the Senate’s prerogative under Article II to render “advice and consent” as to presidential nominations. Two astonishing features of this dismal spectacle warrant special mention: manipulating Senate rules, and limiting the rights of the accused. Because the balance on voting was so thin, Republicans entered into bargaining over the terms of Ford’s prospective appearance before the SJC. First, the witness pressed for only senators to question her, rejecting participation by outside counsel. The objection here is not to lawyers per se, as six of the GOP SJC members are lawyers, and a seventh has a law degree. Rather, the objection is three-fold: First, most of the GOP lawyers have little trial experience, where cross-examination skills can be honed. This ability does not naturally come to lawyers focusing on appellate practice, where lawyers argue law with judges, not facts to a lay jury. Second, the outside counsel would be female, to remove the sexism trope which would be the case with 11 OWGs (old white guys) asking questions. Third, only a unitary cross-examiner can carefully develop a line of questioning, as senators would divide up total time 11 (GOP only) or 21 (all SCJ members) ways.
Worse is that Ford’s handlers pressed for having her testify before the accused. In no imaginable legal, legislative, or administrative forum does the accused go first. The accused cannot otherwise reply to the specifics alleged by the accuser. Instead the accuser could make adjustments to her story based upon the accused’s prior testimony. This, as Alan Dershowitz has observed, effectively nullifies the Sixth Amendment’s Confrontation Clause.
Ford’s other requests — that the accused be in another room, and that there be additional witnesses — are not a problem. Volunteering other witnesses is a request the SJC can turn down or allow, without traducing its institutional authority. Here, the request is properly denied due to the delay caused by Democratic concealment of the charges. And as for having Kavanaugh in another room, this arguably helps Kavanaugh more than it helps Ford, in that he and his attorneys can observe the demeanor of the witness during questioning, and learn about the vulnerabilities in her narrative.
Yet the prize for destruction of due process is the position taken by Hawaii Democrat Sen. Mazie Hirono, who recently told men: “Just shut up and step up.” She also revived the so-called right of women accusers to be believed when accusing a man of sexual impropriety, a right hitherto non-existent anywhere on Planet Earth. And to complete her own identity politics trifecta, she would deny Kavanaugh the presumption of innocence because he disagrees with her on Roe v. Wade. (While technically the presumption is a rule for criminal trials only, do we really want nominees to be guilty until proven innocent?) Sen. Hirono, however, did not back the woman who accused Hawaii’s war-hero senator, the late Daniel Inouye, of sexual assault. Her true mantra, apparently, is that Democratic women must be believed.
Long-Term Impact. Politically and legally, deep-sixing the Kavanaugh nomination would block a potentially decisive shift in the balance of the Supreme Court — and also, the federal appeals courts. Socially, it would elevate demonization of males. Culturally, it would plunge us far deeper into the quicksand of weaponized identity politics, driven in major part by a hyper-partisan leftist mainstream media.
The latest harbinger of a dystopian nomination future is offered by Mitch McConnell’s Sept. 24 floor speech (1:18) excoriating the all-out assault on Kavanaugh:
[E]ven by the far Left’s standards, this shameful, shameful smear campaign has hit a new low.… Senate Democrats and their allies are trying to destroy a man’s personal and professional life on the basis of decades-old allegations that are unsubstantiated and uncorroborated.… aided and abetted by members of the United States Senate.
McConnell’s remarks were slammed by counsel for Ford, who also assailedthe SJC majority’s plan to use an unnamed, experienced sex-crimes outside attorney to interrogate Ford at Thursday’s hearing — the GOP has in fact hired a female attorney for the hearing: “The hearing plan that Mr. Davis described does not appear designed to provide Dr. Blasey Ford with fair and respectful treatment.” This response to perfectly defensible comments by the Majority Leader and proposals by SJC staff suggests that Team Ford is offering patently unreasonable conditions — in the legislative context nonstarter poison pills are called “killer” amendments. Sen. Feinstein now says she can’t guarantee that Ford will show Thursday. And On Tuesday Ford’s team added a demand to designate limited press access including which outlets are allowed in the hearing room.
Better to avoid the risk of a high-stakes hearing with a rookie witness and shaky story, and to blame Republicans for then voting without a hearing.
Collectively, a nomination rejection would push the country toward a wider, deeper civil conflict, and increase the potential for (a) violence between red and blue factions; and (b) more secession movements.
Bottom Line. Democrats have recklessly upped the ante on federal judicial nominations, three levels over the past three decades. The 1987 rejection of Judge Robert Bork relied on libelous misrepresentation of Bork’s views, ignoring his record of never having been reversed by the Supremes in his more than 400 federal appellate opinions. The 1991 Clarence Thomas Affair added permanent tainting of a nominee’s reputation. This latest round augurs for serial late-hit character assassinations as a formal weapon usable against any nominee, with limited chance to fight back, should the Democrats prevail. Alternatively the Democrats could scuttle the hearing and count on friendly media to help them blame the GOP. The weighted scales of mostly leftist media ensure that Democrats will gain while Republicans lose, most of the time. Empowered elites will not stop here. Constitutional rights protection for their opponents cannot match the political appeal of countless Democratic victories.
Conversely, if this assessment of the #MeToo movement’s anti-BK blitz proves correct, and BK is confirmed, it could prove the cultural undoing of, or, at least, set limits to #MeToo by penalizing grossly undue process and arch-feminism’s misandric war on males.
Give Newt Gingrich the final take on what is at stake:
There is now no alternative to confirming Judge Kavanaugh if the politics of denigration are to be defeated.
There is no clever moderate compromise. There is victory for decency and the rule of law, or there is victory for hysteria, mob rule, and the maligning of decent people.
By the way, do not think for one minute that Democrats won’t “Bork” GOP female nominees. The hostility shown federal appeals judge Amy Coney Barrett over her religious views foretells even more such attacks if the Democrats win this round.
We will know Thursday, Sept. 27, 2018. Republicans have scheduled an SJC vote for Friday morning, Sept. 28. If Ford shows, the verdict will reward the day’s winner. If Ford stiffs the SJC, either the GOP immediately commences the voting sequence to confirm Brett Kavanaugh, or all GOP nominations have a Ford in their future.
John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014).