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.

It Ain’t a Case of He Said/She Said Anymore

It’s now a case of she said/they said. Now that the fourth potential witness named by Christine Ford has told the Senate Judiciary Committee under penalty of perjury that she doesn’t know Brett Kavanaugh and wasn’t at the supposed party where the alleged assault occurred, all four of the Ford’s witness have disputed Ford’s story.

It will be interesting to see if her lawyers can help her craft a story to tell the Committee that will avoid problems under 18 U.S.C. 1001.

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.

Interesting Timing

A post over at Bookworm Room takes note of an interesting coincidence of the timing of Brett Kavanaugh’s accuser, Christine Blasey Ford, seeking counseling, a 2012 New Yorker article, and the 2012 presidential election.

The article, which The New Yorker published in 2012, is a Jeffrey Toobin analysis about Bret Kavanaugh and the threat he would pose should he get on the Supreme Court. According to Toobin, Kavanaugh was a scary conservative who, if he got on the Court, might overturn Obamacare …

In 2012, Romney might have won the election. In 2012, Toobin stoked Democrat fears that Kavanaugh, a conservative, might get on the Supreme Court and overturn Obamacare. And in 2012, Ford, a psychotherapist who undoubtedly had years of prior therapy herself, suddenly can’t stop talking about her hitherto undisclosed claim that Kavanaugh was a bad boy almost 30 years before.

So here’s the question: What do you think the odds are that, when Romney seemed within striking distance of the White House, and Kavanaugh seemed like a potential Supreme Court nominee, Ford came up with a story about Kavanaugh trying to rape her? Knowing Democrat fanaticism as we do, it’s easy to imagine that, in 2012, while Ford couldn’t go back in time to 1983 to make contemporaneous claims she could still try to lend an air of verisimilitude to her otherwise unconvincing narrative by concocting a tale for a therapist, thereby creating a “just in case” record.

Read the whole thing.

UPDATE—David French has these comments over at NRO

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.”

But these conclusions are tentative and preliminary. The next three days are crucial. We’ll likely hear more from Ford. I expect we’ll hear more from Kavanaugh. People who were at the party may come forward with their own accounts. The news cycle is moving so fast that it seems almost absurd to speculate about the state of our knowledge even 24 hours from now, but if this is the core evidence supporting the (very serious) claim against Kavanaugh, it’s not sufficient to derail the nomination of a man with an otherwise sterling record of professional excellence and personal integrity.

I haven’t finished my first cup of Monday morning coffee, and this week’s craziness is already turned up to 11.

UPDATE 2—And now that I’ve looked at my Twitter timeline, I’ve seen a thread that seems to show that Brett Kavanaugh’s mother, a Maryland judge, may have presided over a portion of a case involving a foreclosure against Ford’s parents. Neither side sought a recusal which seems to imply that none of the parents knew of the alleged incident. Also, another tweet in the thread indicates that Ford’s brother (a lawyer) may have represented clients before Judge Martha Kavanaugh, again with no recusals.

It’s only 6:33 am, and I’m gonna need another cup of coffee now.

UPDATE 3—Charlotte Allen posts this over at Stupid Girl

And she told the Post that the house was “not far from the country club.” Well, guess what? Neither was the about-to-be-foreclosed-on house that belonged to Ford’s parents, Ralph and Paula Blasey. The address, 17 Masters Court, Potomac MD 20854, is just a few turns down the leafy suburban roads from the extremely posh Congressional Country Club, host of five U.S. Opens and a PGA Championship on its 36-holes of golf courses.

This story has everything: Money galore, underage alcohol, drunk teens, a bathing suit, and parents who couldn’t pay their monthly mortgage bill. And a tightly knit community (with secrets!) where everyone seemed to live near everyone else, know everyone else, and sit as judge in everyone else’s foreclosure case.

And here’s another odd but meaningful detail: The Washington Post says that Ford confided her lurid tale to its reporters at the same time that she alerted Sen. Feinstein–that is, in July. So both the Post and Feinstein sat on the story for nearly three months, only to reveal it after Kavanaugh’s confirmation hearings wound up but just in time to derail the full Senate vote scheduled for Thursday, Sept. 20.

Democracy dies in derpness.

UPDATE 4—Senator Grassley, the chairman of the Judiciary Committee, has issued the following statement

“Anyone who comes forward as Dr. Ford has deserves to be heard, so I will continue working on a way to hear her out in an appropriate, precedented and respectful manner.

“The standard procedure for updates to any nominee’s background investigation file is to conduct separate follow-up calls with relevant parties. In this case, that would entail phone calls with at least Judge Kavanaugh and Dr. Ford. Consistent with that practice, I asked Senator Feinstein’s office yesterday to join me in scheduling these follow-ups. Thus far, they have refused. But as a necessary step in evaluating these claims, I’ll continue working to set them up.

“Unfortunately, committee Republicans have only known this person’s identity from news reports for less than 24 hours and known about her allegations for less than a week. Senator Feinstein, on the other hand, has had this information for many weeks and deprived her colleagues of the information necessary to do our jobs. The Minority withheld even the anonymous allegations for six weeks, only to later decide that they were serious enough to investigate on the eve of the committee vote, after the vetting process had been completed.

“It’s deeply disturbing that the existence of these allegations were leaked in a way that seemed to preclude Dr. Ford’s confidentiality.

“Over my nearly four decades in the Senate I have worked diligently to protect whistleblowers and get to the bottom of any issue. Dr. Ford’s attorney could have approached my office, while keeping her client confidential and anonymous, so that these allegations could be thoroughly investigated. Nevertheless, we are working diligently to get to the bottom of these claims.”

Stay tuned.

UPDATE 5—OK, folks, some of the shoddy reporting on this story is an example of why one needs to be careful. There are at least two women in California named Christine Ford who are college teachers. One is Christine A. Ford, who is not the woman accusing Brett Kavanaugh. She is the subject of several adverse online reviews from former students, and they are being reported as if they apply to Christine B. Ford, Kavanaugh’s accuser. There are no such reviews currently posted for Christine B. Ford, although one professor review site seemed to indicate that one review may have been posted for her in the past. There’s no indication as to whether it was favorable or unfavorable.

Both of the California Professors Ford may deserve adverse reviews, but for now, there is no evidence one way or the other with respect to Christine B. Ford. We will have to wait and see what comes out.

Congress v. The Courts

While considering my first cup of coffee this morning, I was scrolling through teh Twitterz and found this—
—which seems to be a neat summation of the real constitutional “crisis” being played out in this week’s SCOTUS nomination hearings: Congress has been failing to do its job writing legislation for more than a century.

One obvious problem is the deferral of too much of the regulatory process to executive branch agencies such as the FCC or the EPA. Another is the lack of Congressional pushback when the courts have engaged in legislation from the bench.

If Senator Hirono is so concerned about the Supreme Court overturning Roe v. Wade, she should introduce legislation to remove the Court’s authority to consider abortion cases. Congress has that power under Art. III, Sec. 2 of the Constitution. Of course, the fallout from the debate over such a bill might have disastrous consequences for elected officials who could lose their jobs at the next election, so it’s understandable that she might prefer to leave such questions the responsibility of government employees with better job security. Even if they might vote the wrong way. Some things aren’t worth risking your job.

Res Ipsa Loquitur

That’s a Latin expression commonly used by lawyers. It means the thing speaks for itself, and it seems a fitting headline for a post on yesterday’s hearing on the Kavanaugh nomination. I was about to try writing something thoughtful about the event, but when I read a piece by Victor Davis Hanson over at NRO this morning, I found that he’d beaten me to the punch again. This is from his opening paragraph of a short essay about the accomplishments of the Trump administration—

The Brett Kavanaugh opening hearing turned into a progressive circus, with shouting would-be Democratic presidential candidates vying with screaming protesters to see who could be the most obnoxious. Ossified senior Democrat senators appeared bewildered how to match or somehow channel the street theater of activists on their left flank and ended up being sort of punked by their own protesters. It will be hard for network news to find a soundbite from all that to look presentable, given that democracy cannot function when elected officials join the mob.

The odds are overwhelmingly against the Democrats being able to stop the Kavanaugh nomination. Yesterday’s circus was and the succeeding days will be political theater aimed at energizing each parties “base” for the midterm elections. The tactical question for the Democrats should be whether they are energizing Trump’s voters more than their own.

The real thrust of VDH’s piece is contained in the first sentence: “Donald Trump in his Twitter storms apparently has no idea that he is winning.” Hanson would have Trump let his accomplishments speak for themselves rather than engage in such shameless self-promotion, He goes on to recite various economic and foreign policy achievements of the current administration, and concludes—

In other words, Trump’s superb foreign-policy team (Pompeo, Mattis, Bolton, and Haley) and his economic and judicial-appointments advisers have real accomplishments that reflect well on the Trump administration, and thus are driving the media and the Left into abject hysteria.

All this is missing is a little silent forbearance on Trump’s own part to allow both his achievements and his critics, respectively, to speak for themselves, without need of his Twitter editorialization.

It reminds one of the saloon-brawling scene in Shane, when the bloodied Joe Starrett and Shane keep beating up the Ryker outfit, apparently oblivious to their ongoing success — until the bartender shoos them out and orders them to quit brawling, with the verdict: “You’ve won.”

VDH is an insightful historian. Trump is an insightful marketer. It will be interesting to see how things play out.

Meanwhile. if you think the Democrats have gone crazy over this nomination, just wait until the next time Trump gets to nominate a Supreme Court justice and make the balance 6 to 3.

UPDATE—Stacy McCain comments on yesterday’s circus here.

Not a Typo

Paul Mirengoff has a post over at PowerLine in which he takes note of one Democrat senator’s plan to question Brett Kavanaugh about alleged sexual abuse by the Ninth Circuit judge he clerked for 25 years ago. Mirengoff notes that line of questioning is a good strategy for that senator because if will keep her from embarrassing herself by trying to discuss the law.

But, like so many other lines of possible attack the floundering Democrats have pursued, the matter of Judge Kozinski will almost certainly be a dry hole for Kavanaugh’s opponents. There is simply no evidence that Kavanaugh knew about Kozinski’s harassment of women and plenty of evidence that he was not in a position to know.

When I read the word floundering, my first reaction was to think that Mirengoff meant to write foundering (which means sinking) and had made either a typo or a usage error. But thinking about it … yeah, floundering. The Democrats are flopping about like fish out of water.

Read the whole thing.