Justice Kavanaugh Confirmation Hearing *DISCUSSION AND LIVE COMMENTARY*

[Torie]

Forgive me if this has been covered earlier, and I am deliberately not putting this in the thread about the assault itself...

If Kavanaugh withdraws as nominee—unlikely, I know—don't Republicans have until the end of the lame duck session, well past the election, to try to fill the seat? I understand if they're worried about losing control of the Senate, but don't they have more than just that time period and into December if they want to get another Federalist Society bobblehead up on the court?

Sure, but the red state Senate Dems will have an excuse not to go along after the election and will have the rationale that it is wrong to proceed during a lame duck session. And I doubt Collins and Murkowski will be in favor of rushing things.  If the Pubs hold the Senate or gain seats, all of this is moot of course.

[Torie]

Well, not everybody out there is a dummy. This is an interesting glimpse into strategy. Watch the clock, and try to get enough votes to get this back on track with a closed door session of the Judiciary committee. At some point, if things don't seem to be sorting out with some dispatch, time runs out, and the nomination is pulled to get another nominee confirmed prior to a new Senate, preferably one where most of the due diligence has already been done. Or maybe the clock is thrown out of the window, if the polls show the Pubs are very likely to not lose seats in the Senate in the election. But the polls would need to show very good news for the Pubs within two or three weeks for that to happen.  

[Torie]

Who locked the other thread? And why?

Good question. I am assuming it was the creator of the thread, since there is no record of it in the Cave.

[Torie]

It is interesting that a potential victim of attempted rape asking for a criminal investigation of said attempted rape before she testifies in front of a bunch of old men who wish to discredit her is considered "a stall tactic" by partisan politicians.

Is a criminal investigation appropriate that would not otherwise occur merely because of the status of the accused? Is it appropriate if the statute of limitations has long since passed, so no such investigation could ever lead to an indictment? Anyway, even if one should occur, that does not necessarily mean that she should not testify as to what she claims happened. I doubt a case could be made that her testimony might interfere with any such investigation. Obviously, if no action should occur unless and until such an investigation is completed, than that essentially kills the nomination.

[Torie]

It is interesting that a potential victim of attempted rape asking for a criminal investigation of said attempted rape before she testifies in front of a bunch of old men who wish to discredit her is considered "a stall tactic" by partisan politicians.

What would even inform the questions that the senators on the committee hope to ask if no investigation is done?

She tells her story, and questions are asked about details, including who was at the party that she recalls, and where the party was. She answers them. And then K tells his story. Where was he at the time, etc. The Senators assess credibility, etc. It's evidence. And most importantly, it is all under oath.

[Torie]

It is interesting that a potential victim of attempted rape asking for a criminal investigation of said attempted rape before she testifies in front of a bunch of old men who wish to discredit her is considered "a stall tactic" by partisan politicians.

Is a criminal investigation appropriate that would not otherwise occur merely because of the status of the accused? Is it appropriate if the statute of limitations has long since passed, so no such investigation could ever lead to an indictment? Anyway, even if one should occur, that does not necessarily mean that she should not testify as to what she claims happened. I doubt a case could be made that her testimony might interfere with any such investigation. Obviously, if no action should occur unless and until such an investigation is completed, than that essentially kills the nomination.

I'm not 100% on whether a criminal investigation would normally happen in this case, tbh. I'd like to think that this sort of thing would be, even if reported a long time after. Maryland has no statute of limitations on attempted rape, so it definitely could be investigated.

My point is that an investigation could come up with more information, even if it doesn't end up with a prosecution. More information is exactly what is needed here. Maybe there were people at this party that can confirm Kavanaugh was there (which would be significant), and maybe someone saw her run out of a room terrified. Maybe people remember details that confirm her side, or refute it. That seems entirely relevant to this confirmation hearing.

Otherwise, it's just he said/she said, with a mob of Senators trying to discredit her. Republicans are trying to rush this hearing so she has no time to prepare, and so it comes to a favorable conclusion for them. They don't seem to care if it could be true.

Well, based on both testifying under oath, Senator Torie (the Pub version thereof) might have more information with which to decide if additional investigation might reasonably be likely to help resolve the conflict in testimony, that on both sides seems facially creditable. And at that point, I would state that in  the interim, I could not vote to move the nomination ahead, and at that point the nomination would be withdrawn. I don't think it quite fair to paint all the Pub Senators as partisan hacks, who are interested only in "winning" rather than doing the right thing. And in all events, it certainly would not be "winning" if K got on the court, and then later evidence came out that he probably did do the sexual assault. That would be well, bad, very bad. For example, that might start a judicial ethics investigation.  And then Senator Torie would be voted out of office, and I would have nothing to do but post here. That would be not only very, very bad, but the inner circle of Dantian hell.

How am I doing here V?  

[Torie]

Well we might find out. It might, if both testify, make it quite clear that additional investigation is necessary, because certain matters in question might reasonably be expected to be resolved one way of the other. If that is the case, and the Pubs go forward anyway, then you gloomy assessment will have proven correct, which would be very distressing.

Anyway, my point, is that I think it productive to have both testify now. I am not as certain as you, that it will mean nothing, because the fix is in.

One additional thought. K denies he was even at the party. He flatly denies it, rather than saying he does not recall. So says Senator Hatch.  A lot of people presumably were at that party, meaning there are a lot of potential witnesses. So that seems to be a path to test K's credibility. If there is additional testimony of some credibility that he was at the party, it is game over for him. If he can establish that he was elsewhere somehow in a creditable way, then it might be game over for her. That perhaps is the most fruitful line of inquiry.  I suspect behind the scenes, a lot of investigation is going on about that party. We just don't know about it.

I see the post above made the same point.

[Torie]

This excellent article (which has some details of which I was unaware) leads me to believe that if there is testimony Monday, it is quite likely that there will not be the votes to confirm K until an investigation of certain details, as outlined in the article. Unless of course K can establish an alibi that is convincing.  

It may be that unless after the hearing it is pretty clear that K didn't do it, and thus such an investigation is necessary, the decision has been made to pull the nomination. If there were no such decision, I think the administration would have ordered the investigation already. But given the clock, that option was rejected. And this might explain Trump's unusually detached attitude about this.

[Torie]

I will say again, that my speculation is that the Pubs due to the clock don't want to spend the time on an investigation. They would rather pull the nomination. So if it is clear that an investigation is needed after both testify, the nomination will be pulled. The clock, the clock, the clock. So I don't understand why if this is all good faith, Ford does not testify via whatever venue she prefers, as long as it is under oath. If it is clear that there is no way to know better what happened without further investigation, after she testifies, and holds up reasonably well, then unless K has an airtight alibi, obviously a further investigation is needed (which the clock will not accommodate), the nomination is dead. There will be no way K will be able to hold his soft votes.

This is fairly obvious to me. So in my mind, I wonder why Ford is stalling, and would be amazed if it holds, and push comes to shove she refuses to testify, unless something is wrong here. Sure more delay and knowledge of whatever others may testify to, and so forth, is something that she and the Dems would want, but I don't think the nomination will die with that approach if she refuses to testify absent all of the conditions being met.

I predict that she will testify without her conditions being met, assuming she is acting in good faith, which I do assume for now.

[Torie]

The only other person I have heard named is Judge.

If there is someone out there that will verify that the party took place, that would turn this on its head.  Why don't the Democrats just say that? 

Yes, other people at the party (i.e. potential witnesses) were identified and the Washington Post tried to contact them:

https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html

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With this detailed testimony (thanks for the link), albeit not under oath, by Ford, it is obviously to me that the named witnesses need to be interviewed and so forth and if they refuse, to subpoena them, and probably they need to testify under oath. I don't see how the Pubs can dodge that one. Ford doesn't recall much, but they might. And that gives more detail about what to ask K. I don't think there is any escape from this. We have names that won't talk to the Post, and Ford doesn't recall much about other details. The others have to talk. There are means to make them talk. Absent that, this nomination cannot proceed. It needs to be pulled, if the Pubs are worried about the clock. But who knows, the other names may be talking, just not to the Post. Depending on what is really happening, there may be more surprise witnesses if the nomination is not pulled. If it is pulled, that suggests what the other witnesses might be saying.

[Torie]

I will say again, that my speculation is that the Pubs due to the clock don't want to spend the time on an investigation. They would rather pull the nomination. So if it is clear that an investigation is needed after both testify, the nomination will be pulled. The clock, the clock, the clock. So I don't understand why if this is all good faith, Ford does not testify via whatever venue she prefers, as long as it is under oath. If it is clear that there is no way to know better what happened without further investigation, after she testifies, and holds up reasonably well, then unless K has an airtight alibi, obviously a further investigation is needed (which the clock will not accommodate), the nomination is dead. There will be no way K will be able to hold his soft votes.

This is fairly obvious to me. So in my mind, I wonder why Ford is stalling, and would be amazed if it holds, and push comes to shove she refuses to testify, unless something is wrong here. Sure more delay and knowledge of whatever others may testify to, and so forth, is something that she and the Dems would want, but I don't think the nomination will die with that approach if she refuses to testify absent all of the conditions being met.

I predict that she will testify without her conditions being met, assuming she is acting in good faith, which I do assume for now.

I would say that could indeed be so, but it could also be that Republicans simply want to give a show saying that they heard out her claim (without actually examining all the available and potentially available evidence), and then dismiss her, say that regardless of whatever she says, she was not sufficiently convincing, and then confirm Kavanaugh.

In that case, she would be stuck in a position not dissimilar to that of Anita Hill - in Hill's case, there were other women ready to testify, but the Senate didn't hear them and simply proceeded to a vote. Similarly, Ford would be stuck with the Senate proceeding to a vote to confirm Kavanaugh without ever having heard from witnesses such as Judge and the other students who were at the party, and without having investigated to see what other evidence/witnesses/etc might or might not exist.

Which of those two scenarios are the case depends on what the GOP Senate leadership wants - you present the theory that they would rather pull the nomination, and that certainly could be the case (it seems like the most sensible thing to me, in any case), but it is also possible that your theory could be incorrect that that's what they really want.

"They" contains a lot of names. I don't think all are in the same place. I believe the soft votes want to be able to make a good case on the merits on this one, particularly if it is an issue of the clock running for political reasons. I posted above that there might not be much of a case to rush this through, without forcing the alleged witnesses to testify, since Ford seems largely otherwise a blank slate, so there is nothing otherwise to confront K with, without them. All these other names need to say, if they remember anything, if necessary helping them to remember by putting them under oath, is whether or not they recall any such party, and if so, whether K was there. If they said he was, since he said he wasn't, the nomination cannot proceed. It should not take long.

[Torie]

Senator Grassley wrote a letter to Senator Feinstein. Suffice it to say, Grassley is not happy with Feinstein. The letter is on line here for those who want to read it.

One thing that I assumed was going on, but had not been verified, is the Pub staff has been making every effort to interview all the known alleged witnesses (and invited minority staff to participate).

[Torie]

Well Ford seems to have dropped the demand that there be a condition precedent to her testimony that the FBI do an investigation first, and replaced it with the more amorphous condition that "the terms be fair and protect her safety," and that her attorney will by phone chat with Senate staff this afternoon. But Monday won't work, and that is an "arbitrary" deadline anyway. Grassley had set 10:00 am tomorrow as the deadline for her to accept the Monday date. The drama builds. What does "fair" mean? Stay tuned.

[Torie]

The twitter notice also had its own thread, which has now been locked (because it was generating issues) and moved to off topic. What threat was in the link is now gone. This stuff should not be put up all over the place. And it belongs in off topic. So all references to it have been removed from this thread.

[Torie]

Unfortunately, the hands of the FBI are very much tied here - since there is no potential federal crime here, they cannot investigate without an official white house directive - and in this day and age, no president, especially not this president, is going to throw the opposition a lifeline like that.

What I personally think the Judiciary Committee should do is tell Ford's lawyer they can pick any day and time next week. Scratch out the Monday Time, clear the schedule, and literally tell them to pick anything they like for next week. If Ford wants to testify at 4 am Wednesday morning, so be it. Obviously, open or closed (or a bit of both) at the discretion of Ford and her lawyer. Then, after Ford testifies, have a separate open session joint hearing for Kavanaugh, Judge, Smyth, and anyone else either side wants there, with a reasonable total cap of say 15 or 20 people. Split it into multiple panels like we saw on the 7th if need be.

But obviously the committee doesn't care what I think, and in the absence of such a hearing occurring, it is essentially 3 people say vs. 1 person says, and that points the preponderance of the evidence in favor of Kavanaugh.


Note: I do retain my opposition to Kavanaugh based on the testimony given by him and others in the previous hearing, but I am trying to put that aside with respect to this allegation and look at it impartially.

You don't think Trump could order the FBI to do some field work on this? Isn't that what was done with respect to the Anita Hill affair? I think an FBI investigation here is a frolic and detour at this point since there isn't that much to investigate other than the witnesses' testimony, and where everybody was when, and the Senate can do that, and perhaps has, but whatever.

[Torie]

I wonder what blowback caused the guy to publish that regret tweet posted above. I mean when you name somebody, putting that person in the crosshairs of hell, based on idle speculation, even if interesting speculation, you have to be pretty comatose not to realize that you have crossed a Rubicon. Tweets are a bane. If I were dictator, I think I would ban them.

[Torie]

We are going down the road of getting personal again, and I can see that the sh*t is going to hit the fan again soon. What's a Mod to do? Am I going to have to deal with the same scenario every freaking day? Stop, just stop. This is a thread I cannot lock (given its importance, and if I did, another would pop up), so that tool is out. Maybe a round of mass infractions, and endure the multiple threads complaining about that, may be the only option soon. If I go in that direction, there will be a lot of post deletions above.  

[Torie]

Enough with the personal attacks, get the civility back please. This is an official warning. As I said in the OP, I reserve the right as the OP to lock this temporarily to cool things down.

We have a systemic problem with two posters at least feeding off each other. Both feel very aggrieved. It is a systemic problem, as to which mere infractions I feel pessimistic will really solve. So I am reaching out for a systemic solution in various directions. I truly hate having to deal with this, particularly as it is so unnecessary for this discussion to go in such direction. It illuminates nothing. It is all about putting another poster down, that the other does not respect in any manner, so the gloves are off. When I get the advice, and feel comfortable with the right course of action, I will act. That might take some time. But this situation cannot stand. If you do lock the thread, I will not unlock it, until this situation has some resolution going forward.

[Torie]

Sorry if this was posted already but new Fox poll has confirmation approval at 40/50.

http://www.foxnews.com/politics/2018/09/23/fox-news-poll-record-number-voters-oppose-kavanaugh-nomination.html

That's one big difference between the Kavanaugh and Clarence Thomas situations.  Even after the Anita Hill hearings, Thomas remained quite popular and polls showed that majority supported his confirmation.

TBF what BK stands accused of is much worse than the bizarre pubic hair stuff CT was up to

Putting aside that K was a minor, clearly. To me, none of that matters however. What matters to me are two things 1) is it more likely than not that K is lying, and 2) is there more than a remote risk that something will come out later after K is on SCOTUS that will raise a substantial issue as to his fitness to continue serving on the Court? If either one of the two is true, it would be very unwise to put the man on SCOTUS, even if one otherwise thinks he would be great judge, and one agrees with his judicial philosophy.

Given that more will probably be coming out, including in particular, the testimony of Ford, I have no real interest or motivation in trying to decide now whether I think 1) or 2) or both is true. That seems an unnecessary potentially exhausting exercise of my synapses. It won't be very long for more facts to come rolling in.

[Torie]

Given the history of this thread, particularly if it is reported, I am ruthlessly deleting any post that is anywhere close to the line, or arguably inappropriate. (One that I deleted upon report, I did find amusing in its own rather twisted way.) So if you want to go near the edge, or be edgy, don't be surprised if you find your post missing. Thank you.

[Torie]

I still believe that Republicans will find a way to confirm Kavanaugh.

I think this new affidavit makes the stakes much more serious for Kavanaugh. At this point, losing a SC seat is not his biggest potential loss. His reputation is shredded and his existing court seat and possibly freedom are at risk. He needs to seriously consider getting himself out of the news.

Seems a bit late for that. If he didn't do what is alleged, I certainly would do what he is doing. He has no choice. And if I did, I would have asked that my name be withdrawn at the first indication that any of this was surfacing. In fact, I would have deemed seeking the SCOTUS seat far too risky myself.

I really have trouble believing the gang rape charge myself. Now K is 19, and in college. If he did, he is a true redux of Dr. Jekyll and Mr. Hyde. And who else was allegedly involved besides Judge and K, or are those the only two perps that the accuser remembers?

[Torie]

The above I think is a fair summary, except that I suppose K while in the line, dropped out before his turn, so no rape by him personally. But that is a nitpick. Obviously with this latest hit, the claims are going to need to be run down, because if any of it is true, K is in serious legal trouble, above and beyond his nomination. And if the hearing goes forward tomorrow, K will obviously be asked in detail about all of this. When might Swetnick be available to be interviewed?

[Torie]

I just have trouble believing that someone in K's position could be that evil and sociopathic given his "facade."  (He just doesn't come across like Trump  does, where any charge would seem plausible.)  Obviously, I have no idea where the truth lies, and prefer to await the testimony. But this latest charge would take time to work through, to see if it has any impeaching holes in it. The Pubs are really in the cross hairs now. How do they get through this without angering their base, and without the clock running out, and without an electoral disaster?

[Torie]

The above I think is a fair summary, except that I suppose K while in the line, dropped out before his turn, so no rape by him personally.

Where are you getting that idea from? I don't see that in the statement, unless I am missing something?

I read the affidavit again, and she states she saw K in line, not that she saw him take his turn. Again, that makes no difference here legally or in any other way, given the balance of what she charges.

[Torie]

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A conservative writer has seven questions about this charge. The main thing to find out is if Swetnick can name other names at this party, so that they can be questioned.