Today’s Hearing


‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

UPDATE—As Alice watches from Wonderland, Stacy McCain offers these observations about Brett Kavanaugh’s journey through The Twilight Zone.

Don’t Know Much About the Constitution


Politico reports that Senator Merkley (D-OR) intends to file for a court injunction to prevent a quick vote on the Kavanaugh nomination. He claims that would adversely affect his constitutional duty to advise and consent to the nomination.

First, the courts should have no business considering the matter:

Each House may determine the Rules of its Proceedings[.]

—U.S. Const., Art. 1, § 5, cl. 2

If the Senate’s Rules allow for a quick vote, or if the Senate changes or suspends its Rules to allow a quick vote, it’s no one else’s business—except for the voters on election day.

Further, the constitutional duty to advise and consent to nominations does not lie with individual senators but with the body as a whole. So not only is the question not justiciable, Merkley probably lacks standing to sue.

The Kavanaugh Nomination


Everything is proceeding as I have foreseen, i.e., chaotically.

The Democrats are now sufficiently panicked that they are throwing up every obstacle they can imagine, whether it help them or not. The Republicans are trying to appear to proceed fairly within the Committee’s and the Senate’s Rules. Some random event will determine whether the Republicans and vulnerable Democrats hang together and pass the nomination. Meanwhile, the press and the pundits will spin away while a decent man’s life is trashed.

The 2016 election was in large part about Supreme Court nominations. This fall’s election should be, at least in part, a referendum on how those nominations were handled.

SOL


The Baltimore Sun reports that the Maryland State Police will not become involved if someone files a formal complaint relating to the Ford/Kavanaugh brouhaha. This is because of a memorandum of understanding between the MSP and the Montgomery County Police giving primary jurisdiction over sex crimes to the County Police. The County Police have said that they will not open an investigation without a formal complaint, and the Montgomery County State’s Attorney’s Office has said they would have no comment on the matter until after a charge is filed.

In any event, it appears that the statue of limitations has run out. The BS reports that

[l]egal experts doubt that a case could be made against Kavanaugh even if someone makes a complaint.

For one thing, if attempted rape in the first degree was the most appropriate charge, that was a misdemeanor in the 1980s in Maryland. It did not become a felony in the state until 1996. Former Attorney General Doug Gansler, who also served as Montgomery County state’s attorney, noted that Maryland’s statute of limitations for misdemeanors for an offense committed in the 1980s expired long ago.

Gansler, a Democrat, also noted Kavanaugh was a juvenile at the time, further complicating any investigation and prosecution. He said the type of acts that have been alleged are not ones for which juveniles are typically charged as adults.

Even if charges could be brought, Gansler said that based on the accounts he’s seen, it would be difficult to prove an alleged assailant had the intent to complete a forcible rape and would not have stopped short of that.

If you’ve lost a Democrat former state Attorney General, it may be time to move on.

The Unredacted Letter


Senator Feinstein has given unredacted copies of the Christine Ford letter accusing Brett Kavanaugh of sexual assault to the Democrats on the Senate Judiciary Committee, but she has refused to provide a copy for the committee chairman or any of the other Republicans on the committee.

So as things currently stand, not only will the accuser not appear before the whole committee, neither will her accusation.

The committee should stop wasting time and go ahead with its vote on the Kavanaugh nomination.

UPDATE—Chairman Grassley has sent a letter to the Democrats on the Judiciary Committee outlining how and why he intends to proceed. He notes that he his following the same timeline established by Joe Biden when the committee dealt with Anita Hill’s allegations against Clarence Thomas.

We are in the same position the Committee was in after Professor Hill’s allegations were leaked. After that leak, we did not ask the FBI to conduct an investigation. Instead, we reopened the hearing and assessed the testimony that was given on our own. As in 1991, it is now up the Senate to gather and assess the relevant evidence.

Also, Grassley expresses his concern that the Democrats’ leaking of Dr. Ford’s letter will have on others coming forward with information.

I’m also concerned what the recent events mean for whistleblowers, especially victims of sexual assault. Dr. Ford expressed the desire that her allegations remain non-public. I can’t emphasize how important it is to respect whistleblowers’ and victims’ desire for confidentiality. But notwithstanding her wishes for confidentiality, her allegations became public. I fear that the leaks of confidential information will discourage whistleblowers and victims from coming forward in the future.

That’s only a bug if the purpose of the process is to discover the truth. It may be a feature if the purpose of the process is control of the narrative and maintenance of power.