Kavanaugh

Roundup of takes today:

Joe Cunningham at Red State:

The biggest issue with all these revelations is Feinstein’s behavior. She’d had the accusation since July and sat on it, apparently feeling it wasn’t that big a deal. All of her Democratic colleagues were unaware and, in fact, Democratic staffers admitted to being blindsided by the reveal and completely baffled as to why she held it.

David French at NRO:

 Do not count me among those who would minimize this alleged assault. I went to a high school that had more than its share of drunken parties, and my classmates could do crazy and stupid things, but an act like this was beyond the pale. This isn’t “boys will be boys.” Actions have consequences, and it’s hardly unjust to tell a person that if he mistreated another human being like this — even a long time ago — he has to remain “merely” a judge on the D.C. Circuit Court of Appeals.

Since Kavanaugh has denied the story, however, the question of whether the event is so egregious that it should disqualify him is moot. At the very least, if the attack happened, he should be disqualified for lying.

Yet unless all parties start telling the same story, there is no way to know for certain if this event occurred. We don’t need certainty, however, to make a decision on whether a man should sit on the Supreme Court. I have the same standard for Brett Kavanaugh as I did for Roy Moore, for Donald Trump, for Bill Clinton — or for any other politician who’s accused of misconduct. Is it more likely than not that the allegation is true?

Given the totality of the evidence, I believe it is more likely than not that Bill Clinton committed rape and sexual harassment. I believe it is more likely than not that Donald Trump has committed sexual assault. I believe it is more likely than not that Roy Moore engaged in sexual misconduct with underage girls. But the evidence against Kavanaugh falls far short of the evidence arrayed against each of these men. So far at least it falls far short of the evidence against virtually any other politician or celebrity who has faced consequences during this #MeToo moment. Here’s why:

First, one way to help test the veracity of old claims is to ask whether there is any contemporaneous corroboration. Did the accuser tell a friend or family member or anyone about the alleged assault when it occurred? With Clinton, Trump, Moore, and many other politicians and celebrities, there was ample contemporaneous corroboration.

Here, there was not. According to the Washington Post, “Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband.”
That’s almost three decades of silence — three decades when memories can grow cloudy and recollections can change.

But even the allegedly corroborating notes of the therapist raise a separate problem. They actually contradict her story on a key detail. According to the Post, “The notes say four boys were involved, a discrepancy that Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.” Nor do the notes mention Kavanaugh’s name, even though her husband says Ford named Kavanaugh in the sessions.

Those are important discrepancies, and if six years ago she told the therapist four men and says two men now, that suggests that her memory of the event may be suspect.

As a former trial lawyer, I can tell you that while neither notes nor memories are infallible, in a contest between contemporaneous notes and later verbal testimony about those notes, the content of the written notes usually prevails. Juries are extremely skeptical of witnesses who contradict written notes — after all, the notes are taken when the words are immediate and there isn’t the overwhelming pressure of a trial to conform your testimony to the desired outcome.

At least the investigation seems somewhat manageable. If there were only four boys there, who were the other two? Let’s hear from them. In fact, investigators should interview everyone else at the party.

Yet given all the years that have passed, would it be possible to find anyone who remembers being at that party? Would they remember any details at all? If someone saw Kavanaugh stumbling drunk at the party, that would obviously bolster Ford’s account. If another attendee says, “He was totally sober and with me the whole time,” that helps Kavanaugh. But the odds of getting details that precise are long indeed, and there is always a chance that a motivated classmate might lie — for either person.

Finally, there are no other allegations of sexual misconduct against Kavanaugh. If there’s one thing we’ve seen time and again, it’s that one allegation often triggers a cascade of additional claims. There seem to be precious few men who engage in serious sexual misconduct just once. If this was the kind of behavior that Kavanaugh engaged in, then look for more people to come forward. If no one does, however, we’re left with a sole claim, made by an opposing partisan (Ford is an outspoken progressive), that Kavanaugh strenuously denies, that lacks any contemporaneous corroboration, and that is contradicted in material respects by her therapist’s own notes. 

That does not add up to “more likely than not.”

David Marcus at The Federalist:

One thing is clear: Kavanaugh and Judge are making a claim in direct opposition to Ford’s. This is not a case where people are remembering an incident differently. Judge and Kavanaugh flat-out deny it ever took place. And absolutely no contemporary evidence contradicts their claim. Nobody at this supposed long-ago party remembers anything like this taking place. In fact, Ford has no idea where the party was, or when it happened.

This is a real problem. Imagine yourself accused by a woman of assaulting her 35 years ago. You would naturally say, “When? Where?” If she said “I don’t remember that, I just remember you groping me,” how would you respond? Wouldn’t you want specifics? If her memory so clashed with yours, wouldn’t you want some evidence? Well, the evidence is lacking. Liberal outlets like Mother Jones are accusing Judge, and by association Kavanaugh, of being drunks, calling their memories into question. That’s not good enough, especially as Ford may have been drunk herself.

So here we are. After a lifetime of good service, Kavanaugh is being thrown under the bus of a single vague accusation.  Feinstein could have raised this months ago, could have made it a point of questioning during the hearings. She didn’t. Maybe Traister is right, and she refused because she is complicit in the patriarchy, but I doubt it. I think she knew it wasn’t a strong enough allegation.

San Francisco Chronicle editorial board:

 Sen. Dianne Feinstein’s treatment of a more than 3-decade-old sexual assault allegation against Supreme Court nominee Brett Kavanaugh was unfair all around. It was unfair to Kavanaugh, unfair to his accuser and unfair to Feinstein’s colleagues — Democrats and Republicans alike — on the Senate Judiciary Committee.

Erick Erickson at The Resurgent:

If I were Kavanaugh's team, I'd have Brett hold a press conference, take no questions, and say: 

"The Senate should spend Tuesday and Wednesday before this week's vote and hold open hearings on this and interview Ms Ford and me. I cannot say more strongly that I vigorously deny the charges than that I vigorously deny the charges. But Ms. Ford clearly believes something happened to her in high school and though I again am adamant that I was not involved, perhaps a full and open hearing might either reveal that something happened and through the witness of public spectacle we can find an assailant or, at a minimum, provide Ms. Ford some closure. Again, I categorically deny the accusation against me. I did not do this. But we should not dissuade people from coming forward and I think a refusal to hear someone who makes such an accusation could hurt others who might be discouraged from coming forward. I look forward to answering the Senate's questions and showing the Senate I did nothing wrong and I have nothing to hide."

But me personally? I do not think the Senate should hold a public hearing on a single, uncorroborated 35 year old allegation. It sets a terrible precedent for future, single sourced accusations that lack evidence.

I'd never want to foreclose on the guilt or innocence of either an accuser or an accused person, but a whole lot of circumstances about this seem funny. Feinstein's timing. Ford's politics (she's a Dem donor of the Bernie variety).

There's some stuff floating around out there that needs more corroboration, such as the 1996 situation in which Kavanaugh's mother, as a judge, ostensibly ruled against Ford's parents in a foreclosure case. And some stuff that, in the course of corroboration, proves to be a nonstarter, like the former students who claim their professor Ford was "dark and vengeful." It turns out it was another Professor Ford on the faculty.

LITD isn't inclined to think this leads us to a conclusion that Kavanaugh has some secret Harvey Weinstein side to him. There are all the former students, friends and law clerks who have signed statements vouching for his character.

But, as we say, the moment for drawing conclusions is not yet.