Rules in a Knife Fight
“Rules in a Knife Fight – Butch Cassidy and the Sundance Kid”
Today, the United States Senate will begin the final process of voting on Brett Kavanaugh. The truncated and carefully circumscribed FBI investigation is done, and it is now up to the Senators to decide. Brett Kavanaugh has been accused of committing sexual assault as a seventeen year old. It’s thirty-six years later, and he has been nominated to the Supreme Court of the United States. The victim, Christine Blasey-Ford, has convincingly testified, but there is little other evidence to back up her testimony.
Kavanaugh has not been truthful to the Senate Judiciary Committee. In testimony he has claimed that his high school youth and his college career was spent in training for basketball and studying, and that he liked beer. What has been revealed is that Brett was a serious partier, drinking to excess, and like most young men, fascinated with sex. While there is nothing that is so “wrong” with the partying (as opposed to sexual assault), there is definitely an issue with a Supreme Court nominee lying in sworn testimony.
The Senate nomination process is not a legal process, even though the majority Republicans brought in a “female prosecutor assistant” to question the victim. So the legal standard for criminal proof, beyond a “reasonable doubt” is an unreasonable standard to apply here. “Beyond a reasonable doubt” is 90% sure; it seems clear we will never reach that level in the question of sexual assault in the Kavanaugh case.
But Brett Kavanaugh isn’t going to jail if he doesn’t get confirmed by the Senate. In fact, he will be returning to his Appellate Court seat, where he has a lifetime appointment. The Senate confirmation process is not a criminal process, it is effectively a job interview. So what burden of proof should be used?
The standard for civil cases (lawsuits) is “a preponderance of the evidence.” When all of the evidence is considered, which side has “more than 50%.” Is this the appropriate standard for evaluating a Supreme Court nominee?
Kavanaugh, with multiple women claiming he assaulted them in his youth, might still “pass” this standard. Against each victim’s testimony, there seems to be only a “50/50, he said/she said” level of proof. But on the question of lying to the Senate Committee about his youth, it seems like we are way beyond even the criminal standard. We are certain, 100%.
So, in a job interview, a potential employee lies. He lies about his youth, about the meaning of the “dirty words” listed in his yearbook, about his activities, and about his drinking. He lies about things he doesn’t have to lie about, events and actions that would be forgiven as youthful indiscretions; superseded by a career of service to the Republican Party and the government.
The question then is why is he lying, under oath, to the US Senate? Even in this “#MeToo” era, the sexual assault evidence may not be convincing enough for many Senators to vote no. But whatever the reason Kavanaugh uses to justify his lying, or worse, whatever causes him to not remember that these are lies, should lead Senators to question his fitness for office.
An appointment to the Supreme Court is for a lifetime. A reasonable doubt, say, ten percent, about the fitness of a candidate should be enough to “give pause” to even the most partisan Senator. But it probably will not, and Mr. Kavanaugh, despite all of his flaws, lies, and possible assaults; will be placed on the Court.
Republicans are making a mistake in doing so, and not just because Kavanaugh has committed perjury. By placing this flawed man on the Court, they are setting Democrats up with an opportunity to “undo” history. A Democratic strategy may be to wait until one of “theirs” is back in the White House, then re-open the investigation into Kavanaugh. When an unfettered investigation takes place, with more and more facts laid out about his behavior, then it won’t be a nomination, but an impeachment and removal process that begins.
The Republican cry will be “unfair” and “un-American,” but of course all rules have already been tossed aside in this “knife fight,” and the majority opinion on the Court for generations is at stake. To protect “their seat” on the Court, Republicans should step back to see the long-term effect of confirming this wounded and vulnerable candidate. He will still be wounded and vulnerable when the Republican majority protection is gone.
Marty, I think the political calculation for the Republicans approving Kavanaugh is that it actually helps them to hold on to the Senate. They may have already given up on keeping their majority in the House of Representatives.
The political backlash from seating Kavanaugh in the court by suburban white women hurts Republicans more in purple House districts than it does in the red states Trump won where Democratic Senators are up for re-election. The premise is a “win” for Trump will motivate his base in the red states to come out and vote.
Also, the big money donors really, really want a solid conservative majority on the Supreme court.
I agree with you. Now the question is if two Republicans cross to vote no – do Manchin and Heitkamp vote no as well? And do they vote yes if the Republicans hold all their votes?