Brett Kavanaugh - Where We Are

Either reader of this blog knows my feelings on Donald Trump, movement conservatism, and the national Republican party. It will come as no surprise that I oppose Brett Kavanaugh's elevation to the Supreme Court.

I also believe that whether he is ultimately confirmed or if it is somebody else on Donald Trump's infamous list of Federalist Society Reactionaries, the legal outcomes will be the same.

So, I can't help but ask why the numerous defenses of Judge Kavanaugh from the right? Regardless of whether Kavanaugh or someone else on the list is confirmed, we can be assured that this 5-vote conservative majority will:

• refuse to find any burden, whatsoever, to be "undue" under the Casey test;
• will likely continue to create exceptions to, if not wholly repeal, the exclusionary rule;
• will hamstring the ability of administrative agencies to participate in rule-making and adjudication, effectively rendering them toothless advisory boards;
• continue to use the 1st amendment as protection against pretty much any meaningful regulation of either the economy or political spending; and
• elevate the 2nd Amendment to the level of sacrosanct and essentially (to the extent it has not already been done) read out the part about "a well-regulated militia."

All of these are longtime conservative policy goals. All of these goals would be advanced by pretty much any one of the Federalist Society judges, as these judges have been groomed in conservative ideology for decades.

So, why the defense of Brett Kavanaugh?

I don't know. I hear people say that he is an innocent man who has been slurred, but I have a few points to add to that:

1. This is not a criminal investigation. "Beyond a reasonable doubt" and "presumed innocent" are fine phrases when we're talking about depriving someone of his freedom. They have no place in what is a job interview for a lifetime, exceedingly powerful, position. Nobody on the right demanded that Hillary Clinton be "presumed innocent" of all of the charges they hurled at her (BENGHAZI!!! EMAILS!!!). I don't recall Donald Trump presuming that Barack Obama was born in the United States. On a personal level, if I was looking to hire a babysitter and heard a rumor that a particular babysitter liked to get drunk on the job and steal from the houses at which she babysat, I wouldn't be looking for corroborating evidence, giving a presumption of innocence, or demand proof beyond a reasonable doubt. The rumor would suffice for me to look elsewhere. My babysitter does not have the power to interpret the U.S. Constitution and determine the breadth of my rights for the remainder of his/her life. A Supreme Court Justice does.
2. In litigation, there are numerous presumptions that we can make based on testimony. A generally known principle in criminal litigation is that a false exculpatory answer, when proven to be false, is pretty strong evidence of the accused's knowledge of his own guilt. Judge Kavanaugh made some fairly ludicrous statements: Beach Week Ralph Club refers to his weak stomach; Renate alumnius [sic] had no sexual connotations, even though Renate Dolphin (the self same Renate) is insulted by the reference; Devil's Triangle is a drinking game (that nobody has ever heard of) and not a sexual reference (that is fairly common). The list goes on and on, but these statements really stretch credulity, and he offers them as exculpatory. While I am not entirely convinced that he is lying, I have significant misgivings about it.
3. Similarly, while a polygraph is not strong evidence of the truth of a statement, it is strong evidence of the speaker's belief in the truth of such statement. Dr. Ford took a polygraph. The results do not demonstrate that her statements were true, but they demonstrate that she believed them to be true. Has Judge Kavanaugh been subjected to a polygraph?
4. Dr. Ford repeatedly requested an investigation into her allegations. Brett Kavanaugh said he would "do whatever the (Republican-controlled judiciary) committee wanted." If he is so innocent of these charges, why is he not demanding an investigation into them? It says a lot to me that when two people are making mutually exclusive assertions, and one of them wants the matter investigated and the other doesn't.

I could go on, but I'm pretty sure the point is clear. 

I also note the defenses of Judge Kavanaugh. Some say "he didn't do it," but given Dr. Ford's credible testimony, Kavanaugh's defenders have a difficult time simply saying she's lying. So, they come up with a series of defenses:

• It actually happened, but Dr. Ford is mistaken about who did it;
• Even if it did happen as Dr. Ford says, it was a long time ago and we should forgive his behavior;
• Even if it did happen, he never actually raped her so it doesn't really matter.

I am not particularly convinced by any of these rationalizations.