The Kavanaugh Confirmation

At around 4 pm EDT last Saturday October 6^th, against a background of hysterical shrieks of activists in the gallery, the United States Senate voted to conform Brett Kavanaugh by a vote of 50 – 48. With the announcement that Justice Anthony Kennedy would be retiring from the Supreme Court of the United States (SCOTUS) taking effect in the final session of 2018 commencing at the end of October, given he was appointed by a Republican President (Ford in 1975) and was often a swing vote on key issues (in favour of gay marriage in 2015 and against gun control in Heller in 2008), the opportunity for a Republican President to permanently give the court an almost guaranteed 5 – 4 vote in favour of conservative issues set the scene for an almighty confirmation battle for whoever Donald Trump nominated.

Background

The US Constitution grants the incumbent President the power to appoint Justices to the SCOTUS subject to the “advice and consent” of the US Senate. A politicised judiciary is a feature of the US judicial system at the Federal, State, County and City level since the inception of the Republic and there has been no notable movement to change this unlike the non-partisan method of appointment used in the Westminster style democracies of the Anglophile world. Prior to the 2016 Presidential election, primarily to allay conservative fears that Trump would be too liberal in office, he published a list of 25 conservative judges endorsed by the Federalist Society (a prominent conservative think tank) and promised to only nominate anyone to the SCOTUS from this list. Neil Gorsuch (who replaced the vacancy left by the February 2016 death of conservative Justice Antonin Scalia) was from this list and he was confirmed by the Senate on 7 April 2017. When the Kennedy vacancy arose, Trump was true to his word and nominated Brett Kavanaugh who was often considered in the top three of judges a Republican President ought to consider. As soon as Kavanaugh’s nomination was announced, he was denounced by liberals and Senate Minority leader Chuck Schumer announced that the Senate Democrats would do all within their power to ensure that Kavanaugh would fall short of the 51 votes needed to be confirmed. This statement is crucial to understanding what came next because the Democrats were true to their word.

A taste of liberal opposition to Kavanaugh’s nomination came at the opening of the confirmation hearings in the Senate Judicial Committee room in the Hart Building on Capitol Hill. The public gallery was packed with progressive activists who took it in turns to interrupt and disrupt the proceedings until ejected from the room by Capitol Police. The Democrat members of the Judicial Committee themselves attempted to stymie the Chairman Chuck Grassley from commencing the hearings with a series of aggressive procedural attempts to delay or defer the hearings. An already ominous trend of left wing activists, urged on by hard left Congresswoman Maxine Waters, that saw conservative law makers or Trump Administration appointees harassed in restaurants and even at their homes, Senate Majority Leader Mitch McConnell’s wife Elaine Chao (who also happens to be Trump’s Transport Secretary) was heckled and assailed by protesters at their Washington DC home and Texas Senator Ted Cruz was driven from a DC area restaurant by aggressive activists aggrieved by the Kavanaugh nomination.

The hearings proceeded, and the questioning of Kavanaugh was on mostly predictable partisan lines; the GOP pushing his stellar record, the Democrats questioning whether he’d repeal Roe v Wade (the 1973 landmark ruling effectively legalising abortion nationwide) and his role in the Starr Special Counsel investigation of President Clinton. There was some notable grandstanding by potential Democrat candidates for President in 2020 (New Jersey Senator Cory Booker and his now in-famous Spartacus moment and former prosecutor California Senator Kamala Harris). The Democrats’ tactics soon became obvious: delay the hearings until past the mid-term elections (all of the House and a third of the Senate are up for re-election on November 6th, win the Senate (unlikely), deny Trump his ninth SCOTUS seat leaving the Court locked at 4 – 4  so unable to rule in favour of conservative issues and vote down more liberal Federal Appeal Courts rulings until a hopeful Democrat White House win in 2020 and then that new President could appoint a liberal judge thus tilting the Court to the left for a generation.

The Ranking Member (the title of the most senior Democrat member of the Minority) of the Judicial Committee Dianne Feinstein waited for the formal hearings to wrap up before dropping the Blasey – Ford (for simplicity’s sake hereafter referred to as Ford) sexual assault bombshell. Ford alleged that Kavanaugh sexually molested her with violence at a high school party sometime in the 1980’s. The accusation soon erupted into a vicious partisan street fight with Democrats and the MSM saying the victim must be believed and the GOP saying Kavanaugh was ambushed and a good man with a stellar record as a senior Judge was having his good name dragged through the mud. The Democrats key aim with this tactic was to get a delay in the vote. Given the explosive nature of the accusation, Chairman Grassley called a one week pause on the vote, so the Judicial Committee could arrange a time to hear both Ford and Kavanaugh. This of course gave the Democrats more time for new accusers to come forward thus creating what they hoped would be a narrative of a pattern of sexually abusive conduct hoping enough Republicans would get cold feet, abandon the Kavanaugh nomination forcing Trump to nominate another candidate thus preventing the current Senate from confirming his replacement for Kennedy.

The trouble was that the two additional accusers’ allegations proved to be even more shaky than the Ford allegation ended up being, so I will deal with these two least credible accusers first. Firstly, Deborah Ramirez said that Kavanaugh exposed himself at a party, but she cannot confirm if she was actually at the party because she says she was too drunk. Her story, as told to the New Yorker magazine, quickly falls apart when the New York Times (a newspaper that is very anti Trump) tried to corroborate the story with the supposed ten people at the party but could find none of them who could corroborate this allegation and they refused to run the story.

Also jumping into the vacuum left by the delayed hearings was Michael Avenatti, the lawyer who defended Trump’s former porn star mistress Stormy Daniels who himself is a Trump hater and who says he wants to run against Trump. His client, Julie Swetnick, claimed to have seen Kavanaugh waiting his turn in a line of young men waiting to gang rape a girl at a frat house party at Yale. Swetnick’s story fell apart on camera under intense questioning by NBC’s Megyn Kelly where Swetnick walked back the core of her claims and was unclear as to whether Kavanaugh was even there. These were supposedly parties at an undergraduate Fraternity house but by the time of the alleged gang rape incidents, Kavanaugh was already at Yale Law School away from the undergraduate frat scene.  Of the four people Swetnick cited as being at the party, NBC News couldn’t contact two of them, one denied ever being at the party and the last one denied ever knowing Kavanaugh. Swetnick said she called her parents from a cell phone two years before cell phones were commercially available and it turns out that Swetnick’s ex-boyfriend said she laid a false complaint of sexual harassment, engaged in credit card fraud and has a history of unstable and hysterical behaviour. Both accusations died a quick death despite the best efforts of the media to keep them alive meaning all eyes fell on Ford and whether she would testify.

Problems with Ford’s testimony

After many days of negotiations with Ford’s lawyers, she came to DC and testified before the Judicial Committee and seemed genuinely to be a victim of something. In Kavanaugh’s testimony he emphatically denied the charges and was visibly upset and went on the offensive against some of his Democrat questioners on the Committee. Over time various problems cast a pall over the veracity of Ford’s testimony including:

1. She had no memory of the actual year, day and location of the alleged attack nor of how she got there or got home.
2. She said she went to a Safeway nearby afterwards but the only Safeway now in the suburb of the alleged incident didn’t open until 1986, well after the range of dates given.
3. The hearings were delayed for days to allow Ford enough time to drive to Washington DC due to her supposed fear of flying and yet evidence was presented that she flew frequently, did post-graduate studies in Hawaii and had made several overseas flights.
4. Ford said she passed a lie detector test and yet would not offer to the Committee any transcript or video recording of the test nor would Ford confirm who paid for the test. Polygraphs are notoriously easy to beat and in order for results to be credible, the conditions surrounding the test, the manner in which it was administered and the types of questions asked must be known as they can all influence the veracity of the result. The Committee was deliberately prevented from any of this scrutiny.
5. Questions over who paid for her travel and for her lawyers were never answered. It has been alleged that either Feinstein’s office or other Democrat operatives footed these bills.
6. Ford’s lawyer never disclosed various prior partisan connections that compromised her neutrality and impartiality in terms of representations made. The conduct of Ford’s lawyers came under attack when it became obvious that Grassley had offered to fly the Committee to California whereas Ford claims no knowledge of this. When Grassley produced proof of the letter to her lawyers, this has opened the way to formal complaints of unprofessional conduct to be made to the DC Bar because not passing on a material offer to a client is unethical.
7. Ford’s time frame as to the date of the alleged assault was loose and woolly back in July when Ford first made the allegation via her letter to Feinstein and then progressively the time frame got more and more precise the more she talked to the lawyers the Democrats introduced her to.
8. Ford said the allegations against Kavanaugh were made in a therapy session years later and yet she wouldn’t authorise the release of the therapist notes to the Committee despite repeated requests but yet seemed happy to give seemingly the most damaging excerpts to the Washington Post.
9. Ford named four witnesses to the incident and yet got the boy/girl mix wrong and all four either deny the allegation including her supposed lifelong friend Leland Keyser who denied she was even at the party whilst the other supposed witnesses denied they ever knew Kavanaugh. It emerged from the FBI investigation that Keyser felt she was pressured by a retired FBI agent friend of Ford’s to change her testimony.
10. Ford claimed to have been so traumatised that she had to have a second door built to her Palo Alto, California home and yet it was revealed by former roommates and boyfriends that she lived in plenty of single front door apartments with no trauma and that the additional door build into the Palo Alto property was more to increase the rent obtainable or market price of the property as a second entrance straight into a room made the property more valuable in the white hot Bay Area real estate market and that it was built years before she first disclosed the assault in therapy.

I think the best summation of Ford’s weak, inconsistent and questionable testimony can be found in the memo Rachel Mitchell wrote to the GOP Senators summarising her findings after her questioning. She is the renowned sex crimes prosecutor from the Maricopa County District Attorney’s office who has prosecuted hundreds of sex crimes. Mitchell said she couldn’t even get a search warrant let alone an indictment (formal charge brought by prosecutors) on Ford’s testimony and that there was nothing that would stand up in any court.

How and why Republicans win this fight

• Canny use of the Maricopa County prosecutor to question Ford. Rachel Mitchell used a gentle, careful questioning technique that was not aggressive and avoided the bad optics of old white men forcibly questioning a plausible looking/sounding female victim.
• Chairman Chuck Grassley bent over backwards to accommodate Ford and her lawyers came across as petty and shifty.
• Senate Majority Leader Mitch McConnell remained adamant throughout the circus that a vote would be taken despite the histrionics. He was unperturbed by the screaming and yelling of protesters.
• Key GOP Senators, who have wavered in the past, almost all remained solid behind Kavanaugh including centrist Maine Senator Susan Collins (who was subjected to massive liberal abuse and gave a thorough and rousing speech debunking Ford and the other accusers) and Trump haters who are not standing for re-election and had nothing to lose (Bob Corker from Tennessee and Jeff Flake from Arizona).
• The one defection (Lisa Murkowski of Alaska) was cancelled out by the one Democrat defection (Joe Manchin from West Virginia).
• Manchin’s defection gave the vote a patina of bipartisanship.
• The Republican base is now furious and seems far more motivated than ever it was prior to the confirmation hearings.
• The Democrats kept shifting the goal posts. When the Ford, Ramirez and Swetnick accusations were falling apart, they switched their attacks to Kavanaugh’s temperament during questioning of the Ford allegations (what man falsely accused of rape would not be testy under questioning in public) and then all focus switched to his teenage and early university student heavy drinking sessions. Their eventual retreat from the core sexual assault allegations was a sure sign of defeat.
• Trump backed Kavanaugh in press conferences, campaign rallies and Tweets and never ever looked like backing down which is difficult to say for any other Republican that might have won in 2016. Can anyone image Jeb Bush, Marco Rubio or Mitt Romney withstanding the #MeToo frenzy? Maybe Ted Cruz but it’s doubtful.
• Trump forced the media to focus on the holes in Ford’s testimony when he took specific shots at Ford’s inconsistencies at a campaign rally in Mississippi. The chattering classes (and some in his own party) denounced Trump’s comments but suddenly CNN, the NTY and WaPo were reporting on the testimony discrepancies because Trump highlighted them.
• GOP candidates fighting for House and Senate seats now can nationalise the mid-term election over the Kavanaugh nomination.
• Democrats in Congress (and their supporters and media water carriers) overplayed their hand with rhetorical excesses, shonky delay tactics, shrieking protests and paying astroturf protesters to intimidate Republican Senators in the halls all culminating in surreal almost unhinged scenes at the SCOTUS today of activists screaming and clawing at the huge copper doors.
• The MSM went all in against Kavanaugh and supported his accusers until it was obvious all three stories were full of holes thus reinforcing Trump’s narrative that the mainstream media are his enemies and purveyors of “fake news”.
• Feinstein’s hiding of the letter until after the hearings were finished showed this for what it really was – a planned political hit job.
• Ford wanted anonymity but was denied it because a Feinstein staffer leaked the letter. Grassley rightly said that Ford’s claims could’ve confidentially been examined by the Committee (and even the FBI) earlier in the summer. This didn’t play into the Democrat’s strategy to create a media firestorm to sway centrist GOP Senators into backing away hence the need for the leak.
• Jeff Flake’s last-minute compromise on the FBI investigation almost guaranteed the swing votes would fall to Kavanaugh. The FBI handle federal crimes whereas sexual assaults are handled by local District Attorneys (the Montgomery County DA said no complaint had ever been laid and the type of assault was subject to the statute of limitations so they couldn’t act on a complaint today). Knowing Kavanaugh had passed six prior FBI background checks meant the GOP could look magnanimous to the incessant Democrat demands for the FBI to investigate again and in essence they called their bluff knowing the seventh investigation would mirror the findings of the Judicial Committee’s questioning, that there was no corroborating evidence of any kind for any of the alleged sexual incidents.
• Once the accuser’s stories start to fall apart, shifting the goal posts to Kavanaugh’s admitted youthful heavy drinking made them look plain stupid. As if drinking too much at high school and college parties made him unsuitable to be a senior judge. By that standard probably 75% of Congress and half the current Federal judiciary would have to resign if Kavanaugh was to be voted down on that ridiculous standard.
• The whole legal system is built upon a presumption that anyone accused of a crime is innocent until proven guilty. The Democrats (and their apologists) in their #MeToo fervour, believe that any female accuser must be right and that centuries of legal precedent can now be turned on its head to a presumption of guilt. The negative consequences of such a change on wider society cannot be contemplated.
• For many decades, the comity and collegiality of the Senate meant certain norms were adhered to and one of these was that when a President wins an election, it is his right to appoint his Supreme Court Justices. It was not just constitutional, but it was recognised as the ‘spoils of war’. When Republicans controlled the Senate (as they rarely have in the last 100 years) they have always acceded to the confirmation of the nominees of Democrat Presidents. Obama’s two nominees (Sonia Sotomayor and Elena Kagan) were confirmed by enough Republicans Senators to avoid filibusters. Democrats have not been so kind to Republican Presidents and the blocking of Robert Bork by Senator Edward Kennedy in 1987 and the accusations leveled at Clarence Thomas in 1991 were up until now, seen as black moments in Senate relations. What happened to Kavanaugh can be seen as a new low in the partisan tenor of the Senate and the rancour expressed during this process is as bad as any ever seen in this chamber.

Conclusion

Some of you may be wondering why Democrats (and the left in general) would go to such incredible lengths to defeat Trump’s nominee. Let’s be clear, whoever Trump nominated from the list of 25 would’ve been subjected to a version of what happened to Kavanaugh. Democrats know deep down that their left-wing liberal policy proscriptions (e.g. full gun control, high taxes) are not popular and if they were to run for Congress and the Senate on a platform of the kind of proper gun control they really want (essentially a version of repealing the 2^nd Amendment), they would never get elected to office. So, the Democrats electoral strategy has been to disguise its candidates in swing seats and States as moderate centrists and then they toe the party line once in power. But you can only go so far with this tactic because you can only legislatively nibble at the edges of a progressive agenda. Progressive Democrats have long relied on the two other arms of government to achieve their policy objectives: that of the Presidential power of regulation by Executive Order and stacking the Federal Courts with progressive left leaning judges who will create new civil rights out of whole cloth and abrogate the interpretation of existing rights. An example is that, back in the 1970’s, abortion was only made legal in the very liberal states. There was no way Congress was going to ever have liberal enough Representatives and Senators back then to make abortion legal nationwide and so it was legal in places like Massachusetts and illegal in places like the deep South. Now this is not a debate about abortion, I am only using this to illustrate the point. Progressives got nationwide legal abortion only after Presidents Kennedy and Johnson stacked the SCOTUS with liberal judges who would eventually rule favourably on a case on abortion that made its way its way to SCOTUS (in this case Rose v Wade).

With the election of Trump and his aggressive rollback of many of Obama’s progressive policies by Executive fiat (e.g. trying to implement an effective carbon tax that Congress could never pass even when the Democrats controlled it in favour of using excessive regulations under the Clean Air Act to effectively regulate the coal industry out of existence and then stymie oil exploration via not granting any Federal permits) has outraged liberals. Trump has reversed all of Obama’s efforts. Progressives last hopes of advancing their agenda and checking Trump and a conservative Congress was a 5 – 4 liberal leaning SCOTUS and because it is easier for them to legislate from the bench than to try and get liberal policies enacted via the Legislature. This playbook has worked for the Democrats for decades and thus they were prepared to do almost anything to block a 5 – 4 split in favour of conservatives until such time as they hoped to regain the power of SCOTUS appointment and confirmation.

They did not bank on the resolve of Trump, McConnell, the GOP Senators and Kavanaugh weathering the media storm in favour of the allegations and so the tactic has blown up their faces. It is hard to measure the blow-back but some polling data on the enraged and invigorated Republican base is showing up in the evaporation of the lead in what is called the generic Congressional ballot, in the disappearance of the enthusiasm gap that for so many months favoured Democrats and the numbers of tight Congressional and Senate races that had Democrat candidates ahead and now some polls in crucial races show the Republican candidate inching ahead.

The media and pundits have been predicting a Democrat pickup of the House citing prior polls and history (the first mid-term elections after a party takes control of the White House normally sees reversals and in the case of Obama in 2010, he faced a massive wipe out in the House after the Obamacare debacle). Will the Kavanaugh effect save the House for the GOP? It’s too early to tell. Overblown commentary before this confirmation circus flirted with the Democrats taking control of the Senate – that was always highly unlikely given the number of vulnerable Democrat Senators from states Trump won in 2016 that were up for re-election. All but one of those vulnerable so-called red state Democrat Senators voted against Kavanaugh and various recent polls show a majority of this group now behind their challengers. Talk of a new Democrat controlled House moving to try and impeach Kavanaugh is the kind of awful optics that will have Republican strategists scrambling to get Democrat House candidates in Districts they must win to take the House to go on the record as to their views on a Kavanaugh impeachment.

Anecdotally, various anti Trumpers both those publicly known (e.g. Bret Stevens a conservative New York Times columnist and a founder ‘Never Trumper’ has come out in support of Trump and will vote Republican in November when before he planned to stay home) and in my own conservative community, apathy about voting in the mid-terms was a big issue but everyone I know who was ambivalent about voting are so fired up by the political hit job orchestrated by the Democrats on Kavanaugh that they will 100% be at the polls to ensure the Republicans hold both Houses of Congress. It’s too early to tell if this energising of the GOP base and its anger over the Kavanaugh slurs will last another month to the election. It is also not sure whether the booming economy and historically low unemployment rate will be more compelling factors ensuring sufficient Republicans win to retain control.

Many women I know are very worried that the careers of the respectful and well raised men in their lives could be undone after decades of moral rectitude by one high profile false rape allegation. As a friend of mine put it, an allegation of sexual assault is much worse than an allegation of murder or physical assault. There are a number of scenarios that people can envisage of a person lashing out and beating someone up or even killing someone in a fit of rage – a violent burglary or coming in on someone raping your daughter and in those few instances, many people would forgive or at least understand the homicide but there is literally no type or form of rape or sexual assault that is ever right and to accuse an upright man who has been faithful to his wife or partner for decades, was a known defender of her honour and having raised daughters with care and has never strayed in any way from marital vows of fidelity, to be accused of such a heinous crime as rape, even if you have been seen for decades for your upstanding and caring behaviour and attitudes to women, such a false allegation has the power to destroy any good man’s life. For millions of American women, they say “there but for the grace of God goes my husband, father, grandfather, brother, nephew, son or grandson” and the outrage at the damage that has been done to Brett Kavanaugh’s good name is real and palpable. I do not think that the Democrats have realised what punishment may be in store from the electorate by them going this far to achieve their partisan political ends.

Renown 30+ year veteran of the Washington DC press corps Fox News’ Brit Hume described the Kavanaugh hearings as the worse thing he has seen in all his years reporting on Beltway political issues. In 29 days, we’ll know what, if any, impact all this will have electorally.