Posted this on Facebook. Just my thoughts on the matter. It's long--you've been warned. TLDR: This entire thing sucks.
I've been struggling for awhile to find the words to describe how I feel re: the Kavanaugh hearing today. I'm not sure I do even now, but I need to say something, if for no better reason than my own catharsis. I have no delusions about convincing anyone to change their mind, regardless of where they stand on the matter. And truth be told, that's not even my attempt here. What follows is very long, and much of it is process-oriented, so if you don't want to read and think, you should probably cut your losses and stop reading now.
I have no idea what happened that night decades ago. None. I found Dr. Ford's testimony to be both compelling and credible--nobody who watched it in full, prior to partisan commentary, could rightly say she came off as some fringe nutjob out to ruin Judge Kavanaugh's life. I legitimately feel for what she and her family have been going through since she came forward--receiving death threats, needing to (at least temporarily) relocate. Whether you think she's out to "get" Judge Kavanaugh, I would like to think empathy for what her family is going through (and will continue to endure for the foreseeable future) is simply the humane thing to feel.
Likewise, I would hope we can feel empathy for what Judge Kavanaugh's family has been going through. Whether Judge Kavanaugh himself did attempt to rape Dr. Ford, or anyone else, his family didn't. They do not deserve the death threats their family has received, and seeing their husband/father publicly accused of a heinous crime is surely a horrible experience. Much like empathy for Dr. Ford's family is the human thing to feel, I think empathy for his is also the human thing to feel. Judge Kavanaugh himself responded with the righteous indignation I would expect of someone who was accused, whether falsely or not. I could have done without him peddling a partisan conspiracy theory, but the tenor of his opening statement wasn't surprising. I don't think I'd have responded quite that way, but I don't necessarily fault him for doing so. If he is innocent, or simply believes he is innocent, it was a fairly natural reaction. I have issues with several aspects of his testimony, but the raw emotion isn't one of them, and I think the liberal talking points focusing on them are quite misguided.
Which brings me to the substance of the hearing. Was Dr. Ford's testimony sufficient to prove guilt beyond a reasonable doubt? No, no it was not. Saying otherwise is making an argument in bad faith--you can believe her, but barring corroborating evidence (note I said corroborating, as her testimony is, in fact, evidence), Judge Kavanaugh cannot be convicted. Which brings the important point: this is not criminal court. It's a promotion to one of the most powerful and prestigious positions in the entire world. If he isn't confirmed, he doesn't go to prison--he returns to the DC circuit, where he will continue to be an incredibly powerful judge. Given these things, I don't think having a different standard than "beyond a reasonable doubt" is unfair.
Furthermore, despite the rhetoric of this as a "search and destroy" mission by the left, Judge Kavanaugh's life is far from destroyed. Even if he were to leave the federal bench, he could sign a 7-figure book deal yesterday, go to a private law firm and earn considerably more than his current salary, and/or make a killing on the TV/speech circuit for conservative media outlets and groups. The penalty for withdrawing the nomination, or losing the nomination, is not prison, or death, or unemployment.
Again, I claim no knowledge of what did or did not happen decades ago. If this was a criminal trial, and I was on the jury, and the entirety of the evidence was what was presented today, I would vote not guilty. What bothers me most, though, is that the Senate Judiciary Committee (and Republican leadership in general) is not interested in even trying to find out what happened. It's not that they don't care whether Dr. Ford actually was raped by then-teenage Kavanaugh, it's that they don't even want to try to find out. It was decades ago, we might never convincingly know either way, but we should care enough to try. During the Clarence Thomas confirmation hearings, there was an FBI investigation and over 20 witnesses were called to testify. To the chagrin of many on the left, he was ultimately confirmed (through a Democratically-controlled Senate, it's worth noting). And a deeper investigation may well not have any impact on Judge Kavanaugh's confirmation vote, but this time around we had 2 witnesses hear on the same day and 0 investigations, with a planned vote on Friday out of committee and a full floor vote on Saturday. That's just wrong. The allegations are serious, and should be treated seriously. They have not been, and as a human being, much less someone who thinks some degree of bipartisanship is necessary for good governance, that just makes me sad.
Whether Judge Kavanaugh ultimately did what he was accused of or not, he has every incentive to flatly deny it--a nomination to SCOTUS doesn't come around every day. Dr. Ford has nothing to gain. I guess you could argue she might get a book deal or paid speaking appearances now? Maybe. But there's definitely no incentive for Democrats or liberals to be waging a vast conspiracy built on lies. Even if Judge Kavanaugh is ultimately voted down (I'll be shocked if he is, but who knows these days), he will be replaced with someone else who is just as conservative and who liberals and Democrats will disagree with just as much and who will shift the ideological balance of the Court to the right. There is 0% chance that the Republican-controlled Senate doesn't confirm Kennedy's replacement before the new Congress is sworn in in January, and a similarly 0% chance that that nominee is a moderate. I think there's even a good argument that these allegations bringing down the nomination could hurt Democrats in the midterms, as it would surely fire up the Republican base (if it hasn't already).
I'm sure some of my Republican and conservative friends may be thinking "yea, but if these accusations can take down Kavanaugh, they'll be used against any other nominee to block them and keep the seat open." This is not a logically sound argument. Democrats and/or liberals did not torpedo Gorsuch with allegations of sexual assault. Nor did they do it for Alito, or Roberts, or any other of a host of conservative jurists for the lower courts with whom they vehemently disagree ideologically. There are countless well-qualified conservative judges serving who could be nominated and confirmed without these kinds of allegations derailing the confirmation process. The idea that similar accusations would happen against anybody simply ignores observed reality and veers into some real tinfoil hat thinking. Again, it was just a year ago that Gorsuch, a justice who Democrats will despise for decades, was confirmed *with Democratic votes.*
The Supreme Court is important. Its legitimacy matters. And right now, its legitimacy is in flux. There are many on the left who feel everything that has followed McConnell's blockade of Merrick Garland's nomination has been illegitimate. That's a theoretical argument, but it's not purely an academic exercise. The Court's power and role in our system of checks and balances is dependent upon its legitimacy as an institution--it's reliant on the other branches and outside actors to enforce and comply with its decisions. Nixon ultimately complied with SCOTUS, but what if SCOTUS was viewed as a nakedly partisan political institution? Would he still have complied? What if the next Democratic president views a 5-4 decision against an action/policy as a political move by 5 Republicans rather than a valid judgment by the high court? We don't know, but it's not an irrelevant thing to think about as the political climate continues to devolve.
Political scientists have long known that the Court is political, but the public at large hasn't. The Supreme Court, as far as we can measure public opinion, has been the most popular branch of the federal government. A big part of the reason for this is it hasn't been viewed as overtly political. Potentially since Bush v. Gore, but certainly since the Garland fiasco, it's trending in the political direction. And once this happens, what is to stop escalation? It's my biggest fear. The next time Democrats get unified control of government (which will happen, whether it's in 2 years, or 6...it's just how politics works), there is likely to be massive pressure from the base to either expand the size of the court or to impeach a hypothetical Justice Kavanaugh. Or both. It's going to be a disaster. But if the public starts viewing the Court strictly down partisan lines, there is every political reason to do exactly that.
If the Court is to be viewed as a purely political institution, then go ahead and play unabashed partisan politics with it. And that's probably going to have a trickle-down effect. It's entirely possible we're heading to a reality where federal judges at all levels are only confirmed when the same party controls both the presidency and the Senate. On the flip side, when there is unified control, we're likely already in a reality where all of the judges appointed are going to be on the extreme ends of the ideological continuum. That's a horrible reality to live in, I fear we're already there, and both sides are too busy saying "they started it" to take a step back and think about the larger and longer-term consequences of what is going on.
The situation is probably less likely to have a positive outcome for Democrats than the one you describe. I'm sure there are some lunatics on the left somewhere who think there's a path to holding that seat open. I just can't get myself to a spot where *anything* the Democrats do a does a lick of anything in filling this vacancy. Even if we were to play this out, and a full-scale congressional investigation were done that lasted until the midterms, and the Democrats somehow won a majority in the Senate...do you imagine any scenario where McConnell wouldn't get *someone* confirmed during the lame duck session? I sure don't. If not Kavanaugh, McConnell might actually confirm Caligula in the two months before the new Senate is sworn in. With the map as it is, the only way Republicans lose the Senate is if a sizeable chunk of their base just stays home on election day. If that happens, those who remain will be terrified of a primary challenge--leaving the seat open would almost guarantee some of them face legitimate challenges. If nothing else, a conservative judge would get confirmed in an attempt to placate the base. The seat is getting filled with a judge more conservative than Kennedy, and no amount of political blood or lefty angst about fairness and norms is going to prevent it.
