Posted on 10/01/2018 4:58:36 PM PDT by Kaslin
Outside of the partisan bubbles, legal observers concede that Democrats dropping the sexual misconduct allegations against Judge Brett Kavanaugh at the 11thhour should make Republicans furious. At the same time, they think the GOP should have given ample time to investigate these claims, not establishing an artificial deadline.
George Washington Law Professor Jonathan Turley has an op-ed in The Hill, where he lays out his concerns about the probe, noting that we need an end to this drama, not a prolongation of it. Also, he notes the dangerous precedent that Democrats are setting by warning in not so uncertain terms that even if Kavanaugh is confirmed, they’re going to investigate and possibly impeach him should they have a successful 2018 midterm election. Turley warns that such a precedent would offer a green light for Congress to intimidate and retaliate against judges they don’t like. Judges, whose concerns were already addressed in confirmation hearings, could be hauled back before Congress for the same charges, heavily politicizing the process and this branch of government that was supposed to be isolated from such shenanigans. Sadly, ever since Joe Biden was Senate Judiciary Committee chair, the process has become political.
Turley also warns that even liberal justices haven't been as truthful, referring to the half-baked theories from the liberal blogosphere that Kavanaugh committed perjury in these proceedings. He noted that Justice Elena Kagan wasn't as forthcoming concerning her role in the Affordable Care Act. Should we hold tribunals for her?
Sheldon Whitehouse (D-R.I.) promised Kavanaugh that it does not matter if he is confirmed because “as soon as Democrats get gavels” the party will investigate and possibly impeach him. On the House side, Democratic representatives on the House Judiciary Committee, including Ted Lieu (D-Calif.), Hank Johnson (D-Ga.), Luis Gutiérrez (D-Ill.), Pramila Jayapal (D-Wash.) and Jerry Nadler (D-N.Y.), have declared that they will open up an investigation into Justice Kavanaugh as soon as they regain control over the House.
In other words, neither confirmation nor death will prevent a day of reckoning once power shifts hands. The implications are chilling for a system designed to insulate justices from political threats or retaliation.
[…]
The pledge to effectively have a do over is playing well with Democratic voters even though the odds of a successful impeachment are remote. Being tossed in the Potomac may be one of the few indignities not awaiting Kavanaugh if such post-confirmation hearings are ordered. It would create precedent for justices to be retroactively investigated on allegations raised but rejected in their confirmations.
[…]
Whitehouse was suggesting that a potential Democratic majority after midterms would call a Justice Kavanaugh to answer allegations that he was a serial rapist. The problem is that the Senate already has heard from the witnesses cited by Christine Blasey Ford and none corroborate her accounts, or even remember the party in question. This is not dispositive, since Ford said she told no one until many years later. However, she cannot remember the date or the specific location of the incident, or the identity of the person who drove her home after she fled the party.
[…]
It seems highly unlikely that Democrats would be as motivated in promising to pull back Justices Sonia Sotomayor or Elena Kagan before Congress on discrepancies in their records. Democratic nominees have faced allegations of untrue statements before Congress without the threat of post-confirmation investigation. Some advocates objected that Kagan denied being asked for or offering her opinion on the “the underlying legal or constitutional issues related to any proposed health care legislation” or “the underlying legal or constitutional issues related to potential litigation resulting from such legislation” while she was solicitor general of the Justice Department during the Obama administration.
Later, critics argued that newly disclosed documents showed that, after the Affordable Care Act was enacted, Kagan was consulted on the challenge to that law and may have forwarded some possible arguments to use in litigation.
So, while the Left demands that Democrats continue the delay tactic to slowly bleed this nomination to death, keep in mind that should they regain the majority, they probably won’t be there for long, especially since their far left agenda isn’t where middle America, or anyone with cognitive function, is on the issues. The GOP will be back, and you bet we’ll be waiting in the tall grass, ready to take a liberal judicial scalp of our own. Please Democrats, keep doing this because, after this Kavanaugh drama, I think I want several scalps.
Now, lowering the temperature, these Democratic actions on Kavanaugh expose the irony of the party that has prided itself in being normalizers in the current political situation, and as staunch defenders of institutional integrity. Creating a precedent where judges can be intimidated and be threatened with retaliation doesn’t sound like that’s honoring those principles. Then again, we’re talking about Democrats—the only principles they honor are those relating to abortion.
If Kavanaugh is not confirmed and the Democrats significantly lose the midterms, can the GOP bring Kavanaugh back and confirm him?
The real damage here, so far, at least, is good candidates will decline nomination. Who wants to put up with this kind of drama?
If he’s not confirmed he might lose his Federal Judgeship if someone files more frivolous crap. They have destroyed his life already.
If the Democrats significantly lose the midterms, payback will surely occur. No reason not to ratify the Trump nomination, IMHO. Only if it is withdrawn, and even then . . .The real damage here, so far, at least, is good candidates will decline nomination. Who wants to put up with this kind of drama?
I wonder what will remain of the Judiciary Committee for that reason. “Advice and consent” will consist of the Majority Leader coming to an agreement with the president - and the Majority Leader calling a vote of the full Senate. That will be the price of getting a nominee to accept nomination. IMHO.. . . and that will represent status quo ante 1926; for the first 150 years there was never the kind of circus about a SCOTUS nominee. The Senate just mostly ratified.
That makes it look to me like the Senate Judiciary Committee will be considered too political by any nominee at the appellate or SCOTUS level. In the long run only nominees to the bottom rung of the judicial ladder are likely to accept Judiciary Committee scrutiny. Just my guess.
More of a Pogrom really than a crusade.
If we are passing out FBI Background Investigations, I think that every congressman and Senator should have vigorous Background Investigations. Especially their drinking and drug habits, sexual indescretions, etc. They afe all acting like mean drunks and drug addicts.
Midterms...
The Sheep, we only hear rumors, fake polls.
But, the political parties themselves know it down to the tenth of a percentile. They don’t play games, they KNOW.
Remember Hillary cancelling the fireworks the day before the election? She KNEW she was going to lose.
Right now, the Dems are acting VERY desperate, as if they’re trying to change an outcome they see coming. It’s not looking good for them.
Yes, and I think Trump is the type to do exactly that.
Turley is always an interesting read, but I didn't go to the article and do not know who or how many is the "they" above.
In any event, the measure of "ample time" is a function of the credibility of the claims, with an overall deadline for claims. (In that regard, every deadline is artificial and it is surprising that attorneys would use that word in this context.)
With any other format, Dems could literally paralyze the confirmation process with a new list of claims whenever needed.
Flake should suffer a similar fate. He should be made to worry where his next meal comes from or where he will lay his head at night.
For the rest of his miserable days...
Impeachment is one thing, conviction is another. It is doubtful the senate will hold a supermajority of democrats in the near future, and eventually this will die down anyway.
So let me see if I understand this logic. "What the democrats did was ferociously unethical and purely political, but you should still give them everything they want"
Excellent comment, conservatism_IS_compassion.
There is nothing apart from Senate rules that puts these nominations in front of a committee for this horrendous ‘vetting’ process. Once the candidate passes muster in the committee, there is another fight (usually less vigorous) in the full Senate ahead of the vote.
I can support the rules being changed to allow the Majority Leader to bring nominations straight to the full Senate, on a tight timetable.
Cut out the opportunities of histrionics, cut out the circus, and cut out the posturing by politicos on both sides of the aisle.
We have suddenly found out that tony Bethesda Maryland was ground zero for rapes in the early 1980’s. With the latest complaints, we must be nearing 100 rapes and sexual assaults within a single square mile of one of the wealthiest counties in America at the time. We need to find out how many remain unsolved.
Surely they weren’t ALL unreported....
Further, did the Bethesda serial rapes subside when the “predator” Kavanaugh moved to New Haven Connecticut? Did rapes and sexual assaults suddenly explode in New Haven?
Or did those all go unreported too?
Thanks Kaslin.
It’s not Democratic. It’s Democrat. Two completely different things.
There is something vaguely familiar in the recent declarations by Democrats that they are prepared to hold post-confirmation investigations into Judge Brett Kavanaugh if he is confirmed. The idea is that, if given control, Democrats will order an effective redo in pulling Justice Kavanaugh back before one or both houses.
There is precedent for such a body. It was called the Synodus Horrenda, or the “Council Dreadful.” Used in medieval times, these tribunals could prosecute even the dead for long passed crimes. Sheldon Whitehouse (D-R.I.) promised Kavanaugh that it does not matter if he is confirmed because “as soon as Democrats get gavels” the party will investigate and possibly impeach him. On the House side, Democratic representatives on the House Judiciary Committee, including Ted Lieu (D-Calif.), Hank Johnson (D-Ga.), Luis Gutiérrez (D-Ill.), Pramila Jayapal (D-Wash.) and Jerry Nadler (D-N.Y.), have declared that they will open up an investigation into Justice Kavanaugh as soon as they regain control over the House.
In other words, neither confirmation nor death will prevent a day of reckoning once power shifts hands. The implications are chilling for a system designed to insulate justices from political threats or retaliation. The most famous Council Dreadful (or “cadaver synod” or “council horrible”) was called in 897 when Pope Stephen VI wanted to try Pope Formosus for crimes that occurred decades earlier.
The problem was that Formosus was already dead. His successor, Pope Boniface VI, died under controversial circumstances after only 15 days. Stephen then took over the papacy and the Council Dreadful, which dug up Formosus and propped him on his throne to answer for his crimes. Not surprisingly, he failed to convince the jury composed of his enemies. He was convicted, stripped of papal garments, and three fingers of his right hand used for blessings were cut off. He ultimately was thrown into the river Tiber.
Whitehouse seemed eager to put the dread back into the Council Dreadful last week in proclaiming that “the sand is running through Kavanaugh’s hourglass.” The pledge to effectively have a do over is playing well with Democratic voters even though the odds of a successful impeachment are remote. Being tossed in the Potomac may be one of the few indignities not awaiting Kavanaugh if such post-confirmation hearings are ordered. It would create precedent for justices to be retroactively investigated on allegations raised but rejected in their confirmations.
I previously said that I agree with Democrats that the withholding of years of background material for Kavanaugh was unprecedented and wrong. Yet, the degree of disclosures demanded by the Senate is, ultimately, a decision of the majority. Moreover, Kavanaugh’s answers about his work on controversial matters were sufficiently hedged to make any claim of perjury difficult to establish. Whitehouse, however, was not talking about Kavanaugh’s work as White House secretary in the Bush administration.
Whitehouse was suggesting that a potential Democratic majority after midterms would call a Justice Kavanaugh to answer allegations that he was a serial rapist. The problem is that the Senate already has heard from the witnesses cited by Christine Blasey Ford and none corroborate her accounts, or even remember the party in question. This is not dispositive, since Ford said she told no one until many years later. However, she cannot remember the date or the specific location of the incident, or the identity of the person who drove her home after she fled the party.
Republicans have not helped the process with their artificial limitations on investigating the claims. Rightfully irate at the Democrats for holding the allegations until shortly before the committee’s vote, Republicans refused to ask for a FBI investigation and then effectively waived serious examination of Ford by hiring a female prosecutor who was limited to questions in ridiculous five minute increments. The haiku style examination of Ford was wide and correctly derided. Similarly, Democrats had little ability to examine Kavanaugh in such brief segments.
Finally, the belated week long FBI investigation seemed more suited for political cover than actually uncovering new evidence. Nevertheless, a special hearing was held, declarations gathered, and a supplemental investigation ordered on allegations occurring decades ago. To call post-confirmation hearings on such allegations would expose all justices to lingering threats of investigation with shifting majorities in Congress. That is precisely what the Framers sought to avoid in establishing a high standard for impeachment and giving federal jurists a lifetime tenure.
It seems highly unlikely that Democrats would be as motivated in promising to pull back Justices Sonia Sotomayor or Elena Kagan before Congress on discrepancies in their records. Democratic nominees have faced allegations of untrue statements before Congress without the threat of post-confirmation investigation. Some advocates objected that Kagan denied being asked for or offering her opinion on the “the underlying legal or constitutional issues related to any proposed health care legislation” or “the underlying legal or constitutional issues related to potential litigation resulting from such legislation” while she was solicitor general of the Justice Department during the Obama administration.
Later, critics argued that newly disclosed documents showed that, after the Affordable Care Act was enacted, Kagan was consulted on the challenge to that law and may have forwarded some possible arguments to use in litigation. While this became an issue in calling for her later recusal from hearing the appeal, there was no call for her removal.
Impeachments were primarily designed to address misdeeds or abuse in office. While a nominee clearly committing perjury in a confirmation hearing could raise grounds for impeachment, it would be in stark contrast to the past record of these very same members. Democrats did not call for such probe into figures like former National Intelligence Director James Clapper, who lied about a major and allegedly unconstitutional surveillance program before the Senate. He admitted that he had chosen the “least untruthful” option in his testimony. Whitehouse did not pull out his hourglass to menace Clapper.
None of this is meant to suggest either certainty or satisfaction with the status of these allegations. Like many, I found both Ford and Kavanaugh’s testimony compelling. I would have preferred that Democrats revealed the allegations earlier. I would have preferred that Republicans provided more time for questions and investigation. Moreover, it is still not clear what, if anything, the FBI might uncover or how this will end.
Yet, end it must. There needs to be finality in some parts of our government, even as chaos reigns in all other parts. If senators are troubled by the lack of disclosures or time, they can in good faith vote against Kavanaugh. However, a confirmation vote shows that the requisite majority of senators were satisfied enough with the record to confirm.
Democratic members should consider the potential political cost of endorsing retroactive reviews of confirmation hearings. It certainly did not work out well for Pope Stephen VI, who was eventually arrested and condemned to death by strangulation. Watching this unfolding spectacle in Washington, many voters know exactly how he must have felt.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
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