Tag: Brett Kavanaugh

Impartial umpire hahahahahahaha those guys are such comedians.

I guess once he was sworn in all that crap about Kavanaugh being an impartial umpire can be tossed out the window. https://t.co/np07NkIvjb

— Daniel W. Drezner (@dandrezner) October 6, 2018

I look forward to our better future.

So this is the sitch: Republicans say the [drastically constricted] FBI investigation exonerates Kavanaugh; Democrats say it does no such thing; we can’t consider the evidence because the Republicans are keeping the whole farking thing Secret.

What is utterly crazy here is that we have no way of evaluating any of this either way, because we are not allowed to see the FBI’s findings, even in summary form. Republicans and Democrats are telling vastly different stories about what those findings show: Republicans are claiming there was no corroboration of any of the charges against Kavanaugh and that there’s nothing new in them. Democrats are claiming not just that the investigation was a sham but also that it doesn’t exonerate Kavanaugh at all.

But on that latter point, Democrats have been confined to only the vaguest of hints. For instance, Senate Minority Leader Charles E. Schumer (N.Y.) put out a statement saying that “to say that this investigation exonerates Judge Kavanaugh,” or to say that “there is no hint of misconduct in these documents,” is “just not true.” Warren went further than this — which seems significant — but both their statements are maddeningly vague.

Because the Republicans are forcing them to be vague.

To justify keeping the FBI’s findings secret, Republicans have pointed to a 2009 memorandum of understanding between the Judiciary Committee and the White House counsel concerning FBI background checks into nominees, which says such investigations are to remain confidential.

But Robert Bauer, a White House counsel under President Barack Obama, told me today that there are ways around this — that is, if senators and the White House wanted to find them. For instance, senators could simply renegotiate this agreement with the White House counsel, Bauer said.

“The Memorandum of Understanding is just that — it is an understanding that can be amended to address exceptional circumstances,” Bauer told me. Bauer pointed out that this is only the latest in a long line of things that Republicans and the White House have done to limit the public’s ability to weigh the testimony from Ford and Kavanaugh, emailing me this:

First, the Senate structured the peculiar one-day hearing which featured a sharply limited witness list and an outside counsel relieved of her responsibilities in the middle of the proceeding. Then the White House and the Senate majority set exceptional limits on the scope and timing of the subsequent FBI review. Then came this last step of rejecting calls from Republican as well as Democratic committee [members] for a public accounting of the results.

“The refusal of the Senate majority to provide even a summary of the review,” Bauer concluded, is only the last in a series of steps that are “undermining the credibility of the Supreme Court confirmation process.”

Not to mention the arbitrary tyrannical stonewalling of Merrick Garland.

What a nightmare.

Kavanaugh wants us to know that last Thursday he “was there as a son, husband and dad.” Really? He wasn’t nominated to the Supreme Court “as a son, husband and dad.” We don’t give a fuck about his family life (except possibly as more or less reason to think he’s simply an asshole), that’s not what he’s there for.

He makes this weird claim in the Wall Street Journal (well hey at least it’s not Breitbart).

He starts by telling us how proud he was to be at the White House with his wife and daughters to accept the nomination.

My mom, Martha—one of the first women to serve as a Maryland prosecutor and trial judge, and my inspiration to become a lawyer—sat in the audience with my dad, Ed.

Can we not stop with this folksy crap already? What’s wrong with calling them his mother and father? And skipping the first names? We’re not at a church picnic. It’s a wonder he didn’t refer to his little woman and kiddies.

Then he says a lot about how not partisan he is.

After all those meetings and after my initial hearing concluded, I was subjected to wrongful and sometimes vicious allegations. My time in high school and college, more than 30 years ago, has been ridiculously distorted. My wife and daughters have faced vile and violent threats.

Against that backdrop, I testified before the Judiciary Committee last Thursday to defend my family, my good name and my lifetime of public service. My hearing testimony was forceful and passionate. That is because I forcefully and passionately denied the allegation against me. At times, my testimony—both in my opening statement and in response to questions—reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.

Well now wait a second. What does he mean by “my record”” What constitutes a record? It depends on who is compiling the record, doesn’t it. A substantial number of people have come forward to tell us about Kavanaugh’s record as a belligerent drunk and bully.

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Well I for one cannot understand it, because this isn’t about his family, it’s about what he’s going to do to us.

I wonder if Kavanaugh would be disconcerted at all if his older daughter got into Radcliffe and then weeks before she was to start classes discovered she was pregnant…and she didn’t want to stay pregnant. I wonder if he would try to insist that she should delay Radcliffe for a year so that she could have the baby and give it up for adoption.

He says if he’s confirmed he’ll keep an open mind. I don’t believe him.

Why did I ever think it would matter?

Michelle Goldberg at the Times:

The restarted F.B.I. background check that seemed, a week ago, like a merciful concession to decency has instead been a cover-up. Agents didn’t even question Blasey or Kavanaugh. It’s not clear if they interviewed any of the more than 20 corroborating witnesses named by Deborah Ramirez, who claimed a drunken, aggressive Kavanaugh thrust his genitals into her face when they were students at Yale. The New Yorker reported that witnesses who tried to contact the F.B.I.were ignored; some ended up submitting unsolicited statements to the bureau.

Which were filed in the bottom drawer of a rusty filing cabinet in a sub-basement filled with piranhas.

Ultimately, according to the White House, the F.B.I. interviewed a total of nine people in its new review. Based on what they said, Republican leaders have declared that Blasey’s story remains uncorroborated.

In other words the Republicans told the FBI not to do anything that would actually turn up evidence, and Republican leaders have declared that Blasey’s story remains uncorroborated. It remains uncorroborated because they didn’t try to corroborate it.

Conservatives will say that they’re protecting an innocent man unfairly accused, not standing up for white male impunity as a principle. They either don’t believe Blasey, or they think that, in the absence of further proof, Kavanaugh should be given the benefit of the doubt, which in this case means a lifetime appointment to the Supreme Court. They think they’re the ones who are being fair and judicious. “One side is standing on evidence,” tweeted Commentary’s Noah Rothman. “The other on intuition and sentiment.”

Evidence! What evidence? There is no “evidence” that Kavanaugh did not assault Ford, there’s only his denial that he did. There’s also no evidence (that I know of) that he did, but that doesn’t equal “it’s just intuition and sentiment.” And there’s plenty of evidence that Kavanaugh is an angry hater of all things lefty, which is not a good quality in a supreme.

No Democrat or feminist cares that Kavanaugh drank a lot in high school; personally, I couldn’t have endured high school sober. We care that he described his younger self as a chaste innocent who was, as he said in his Fox News interview, “focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship.” In fact, by multiple accounts, Kavanaugh was a mean, rowdy drunk and a sexist bully.

Which is not what we expect in a Supreme Court justice.

Of course; the fix is in. The FBI has handed over its “report” and the Republicans are saying it’s all good and that’s the end of that.

A leading Republican said Thursday that a new FBI report on Judge Brett M. Kavanaugh found “no hint of misconduct,” while Democrats called it incomplete and suggested that the White House limited the probe to protect President Trump’s Supreme Court nominee.

The headlines are full of stories on people who had relevant information who could not get the FBI to talk to them.

“There’s nothing in it that we didn’t already know,” Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said in a statement after being briefed on the FBI report by his staff. “It’s time to vote.”

There’s nothing in it that they didn’t already know because they blocked all new information.

This is so fucking sleazy.

But even before the report was formally sent to the Senate, lawyers for Ford criticized what they viewed as an incomplete FBI probe.

“An FBI supplemental background investigation that did not include an interview of Dr. Christine Blasey Ford — nor the witnesses who corroborate her testimony — cannot be called an investigation,” her legal team said in a statement. “We are profoundly disappointed that after the tremendous sacrifice she made in coming forward, those directing the FBI investigation were not interested in seeking the truth.”

Hey, they let her talk, they just didn’t listen. You can’t have everything.

On Thursday, a lawyer for Deborah Ramirez, who has accused Kavanaugh of exposing himself while in college, sent a letter to FBI Director Christopher A. Wray making the same claim.

The letter noted that Ramirez had been interviewed by the FBI for two hours Sunday in Colorado and later provided a list of 20 people who might corroborate her account of Kavanaugh’s behavior.

“Fewer than four days, later, however, the FBI apparently has concluded its investigation — without permitting its agents to investigate,” wrote Ramirez lawyer William Pittard. “We are deeply disappointed by this failure.”

So are we.

Oof, this is powerful: an open letter by 650 (and rising) law professors saying Kavanaugh does not have the temperament. It’s going to the Senate tomorrow.

Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”

We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.

Benjamin Wittes expressed a lot of sympathy for his anger (though not approval), so much sympathy that I thought it was too much. That paragraph clarifies (for me) why. Kavanaugh exhibited a lack of commitment to judicious inquiry. Sure, it’s easy to get why he was riled, but what’s not easy to get is why he apparently made no effort to control that and act like an adult judge-type person. It’s not easy to get why he thought a display of rage would be acceptable, and a good idea, and justified. It’s not easy to get why he had no discipline. All of that (and more) seems like the opposite of right-for-the-Supreme-Court.

As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.

We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.

Laurence Tribe writes in the Globe that Kavanaugh, if confirmed, will vote to kill Roe v Wade, and was tricksy about it in the hearings.

Several senators have said they would not vote to confirm Judge Brett Kavanaugh as a Supreme Court justice if they believed he would vote to undo the basic protections for women upheld in Roe v. Wade and other cases. So if his testimony and his meetings with those senators had exposed that as his almost-certain path, they would vote no.

But the only reason his public testimony and private meetings didn’t reveal such a clear inclination is that Judge Kavanaugh dissembled about his views, calling the Supreme Court’s abortion rulings “precedent on precedent,” as though that rendered them safe from his slippery keyboard. The truth is it does nothing of the kind.

It’s all of a piece, you know. Kavanaugh thinks women are lesser beings, subject to the rule of men. They should obey when men try to rape them, and they should be forced to bear children they don’t want to bear if men say they have to.

No one who has seriously studied Judge Kavanaugh’s Court of Appeals opinions — or knows anything about the publicly stated criteria used by the groups to which President Trump outsourced his selection of Supreme Court nominees — could fail to recognize that Judge Kavanaugh would, at the first opportunity, gut Roe v. Wade. His 2007 opinion in Doe Tarlow v. District of Columbia upholding compulsory elective surgeries — including abortions — performed on women marked at birth as intellectually challenged, and his 2018 opinion in Garza v. Hargan that sought to block a mature young woman’s access to a lawful abortion, leave no doubt that he would do all in his power to vindicate the expectations of those who handpicked him to satisfy Trump’s evangelical base. Indeed, just last year, in a speech to the American Enterprise Institute, Kavanaugh called Roe an example of “freewheeling judicial creation of unenumerated rights.”

Easy for him – it’s not a right he has ever needed or ever will need, so it’s just a wild and crazy judicial creation.

Benjamin Wittes wrestles with the Kavanaugh issue.

I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so.

He advised Kavanaugh (also at The Atlantic) to withdraw unless he could dispute Ford’s account without leaving a scorched earth behind.

Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.

Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a “good judge [as] an umpire—a neutral and impartial arbiter who favors no litigant or policy.” That Brett Kavanaugh reminded us that “the Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.”

That Kavanaugh did not show up last Thursday.

After rightly criticizing “the behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,” this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in:

When I did at least okay enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.

Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.

When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes. And then—and then as no doubt was expected, if not planned—came a long series of false last-minute smears designed to scare me and drive me out of the process before any hearing occurred.

He went on: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

I still wonder why he did that, and all the more so after reading the bit from the first hearing. Did he simply lose his temper? Lose it so thoroughly that it remained lost while he wrote that statement? And while he delivered it? (There again – if so, that itself hints at a temperament not ideal for the Supreme Court.)

The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for theWashington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations and post–September 11 legal matters. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.

I think that’s the part that interests me the most. I’ve been trying to imagine a Kavanaugh who was admired by people like Wittes and I couldn’t do it – because the one who shouted and blubbed at that hearing is the only one I’ve seen.

Sheryl Gay Stolberg in the Times yesterday:

Democratic efforts to highlight sexual assault charges that are more than 30 years old have been dismissed by supporters of Judge Brett M. Kavanaugh as the dredgings of ancient history. But the judge’s response to those accusations has raised new issues that go to the core of who President Trump’s Supreme Court nominee is right now: his truthfulness, his partisanship and his temperament.

And, in my view, his ability to reason. Sure, we all get that he’s livid because the allegations are about him and not someone else. It’s human to take things personally; it’s human to go ballistic when it’s you and look on with calm detachment when it’s not you. It’s human, but it’s not all that Supreme Court-suitable. That job demands a lot of people; that goes with the “Supreme” part. The Court’s decisions matter, so you want the people making them to be more than ordinarily endowed with qualities that suit the job.

I suspect that if Kavanaugh learned of a guy who was said by many friends to have been a belligerent drunk as a young man that he would not find it a particularly outrageous claim. It seems to me that someone with an appropriately judicial temperament would be able to take a wide view and realize that most people just aren’t going to assume that he Brett Kavanaugh can’t possibly have been a belligerent drunk as a young man, because why would we? And then he would (you’d think) realize that pitching a belligerent fit would not be the best way to convince us otherwise; more like the opposite.

In short, his ego seems to mess with his ability to be rational. Not good in a justice.

For Democrats determined to derail Judge Kavanaugh, his performance last week before the Senate Judiciary Committee — his dissembling about his teenage years; his playing down drinking in high school and college; his raw, angry emotions; and his broadsides against Democratic questioners — is proving to be a new avenue of attack, if the accusations of sexual assault are not enough to swing the votes of three key Republicans and two undecided Democrats.

That’s the wrong way of putting it. That sounds as if it’s just a pretext, but his performance was a genuine horror. People aren’t pretending to be horrified because it’s a way to derail him; we really are horrified. The narcissism and entitlement make me feel quite sick.

Judge Kavanaugh came up in Washington through partisan politics; he worked on the investigation that led to Mr. Clinton’s impeachment, and later he worked for President George W. Bush. At his first Supreme Court confirmation hearing, last month, he portrayed himself as a neutral arbiter of the law who is above politics, telling the Judiciary Committee that the Supreme Court “must never be viewed as a partisan institution.”

But last week he took the gloves off, ripping into Democrats for what he called “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons.” Senator Mazie K. Hirono, Democrat of Hawaii and a member of the Judiciary Committee, seized on those comments on Monday as she laced into Judge Kavanaugh in a speech on the Senate floor.

“We all saw something about Judge Kavanaugh’s temperament and character that day that should disqualify him from serving on the Supreme Court of the United States,” Ms. Hirono said. “He was angry. He was belligerent. He was partisan. He went on the attack against senators questioning him. These are not qualities we look for in a Supreme Court justice, or a judge for that matter.”

But Senator Charles E. Grassley, Republican of Iowa and the Judiciary Committee chairman, said Judge Kavanaugh could be excused for showing passion. Mr. Grassley said he was reminded of the 1991 testimony of Clarence Thomas, who told the committee that the hearing into sexual harassment allegations from Anita F. Hill amounted to a “high-tech lynching.”

Yes, and that was crap too.

Laurence Tribe makes an interesting point.

No prior SCOTUS nominee has EVER lashed out under oath against an identifiable set of litigants, blamed them for ruining his life, and ominously warned them “what goes around comes around.” Kavanaugh did this to himself, without any tactical help from me. @AlanDersh is wrong. https://t.co/Np7Yv14ukP

— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) October 2, 2018

I hadn’t really thought about it in that light. He created a visible conflict of interest for himself with all that raging at “the left” and Democrats.

Another indication that Kavanaugh may have tried to stifle claims about his behavior:

In the days leading up to a public allegation that Supreme Court nominee Brett Kavanaugh exposed himself to a college classmate, the judge and his team were communicating behind the scenes with friends to refute the claim, according to text messages obtained by NBC News.

Kerry Berchem, who was at Yale with both Kavanaugh and his accuser, Deborah Ramirez, has tried to get those messages to the FBI for its newly reopened investigation into the matter but says she has yet to be contacted by the bureau.

The texts between Berchem and Karen Yarasavage, both friends of Kavanaugh, suggest that the nominee was personally talking with former classmates about Ramirez’s story in advance of the New Yorker article that made her allegation public. In one message, Yarasavage said Kavanaugh asked her to go on the record in his defense. Two other messages show communication between Kavanaugh’s team and former classmates in advance of the story.

And then there’s the fact that Kavanaugh lied about this chatting in a committee interview.

Berchem’s texts with Yarasavage shed light on Kavanaugh’s personal contact with friends, including that he obtained a copy of a photograph of a small group of friends from Yale at a 1997 wedding in order to show himself smiling alongside Ramirez 10 years after they graduated. Both were in the wedding party: Kavanaugh was a groomsman and Ramirez a bridesmaid at the wedding.

On Sept, 22nd, Yarasavage texted Berchem that she had shared the photo with “Brett’s team.”

But when Kavanaugh was asked about the wedding during a committee interview on Sept. 25th, he said he was “probably” at a wedding with Ramirez. Asked if he interacted with her at the wedding, Kavanaugh replied, “I am sure I saw her because it wasn’t a huge wedding,” but added that he “doesn’t have a specific recollection.” Lying to Congress is a felony whether testimony is taken under oath or not.

And that is a lie, you see, because he obtained the copy of the photo and sent it to friends in order to show himself smiling alongside Ramirez 10 years after they graduated. He did that, so he can’t have been uncertain about being at that wedding and he does have a specific recollection.

In a series of texts before the publication of the New Yorker story, Yarasavage wrote that she had been in contact with “Brett’s guy,” and also with “Brett,” who wanted her to go on the record to refute Ramirez. According to Berchem, Yarasavage also told her friend that she turned over a copy of the wedding party photo to Kavanaugh, writing in a text: “I had to send it to Brett’s team too.”

Bob Bauer, former White House counsel for President Barack Obama, said: “It would be surprising, and it would certainly be highly imprudent, if at any point Judge Kavanaugh directly contacted an individual believed to have information about allegations like this. A nominee would normally have been counseled to leave to his legal and nominations team the job of following up on any questions arising from press reports or otherwise, and doing so appropriately.”

Can you say “witness tampering”?

Further, the texts show Kavanaugh may need to be questioned about how far back he anticipated that Ramirez would air allegations against him. Berchem says in her memo that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to “conceal or discredit” Ramirez.

Kavanaugh told the Senate Judiciary Committee under oath that the first time he heard of Ramirez’s allegation was in the Sept. 23 article in The New Yorker.

Kavanaugh was asked by Sen. Orrin Hatch, R-Utah, when he first heard of Ramirez’s allegations. Kavanaugh answered: “In the New Yorker story.”

Lying under oath? Lying to Congress?

One of Kavanaugh’s lies that I find peculiarly exasperating, especially from a lawyer:

BRETT KAVANAUGH: Dr. Ford’s allegation is not merely uncorroborated. It is refuted by the very people she says were there, including by a longtime friend of hers – refuted.

But that’s bullshit and any lawyer would know that.

Most simply and obviously it’s bullshit because the people he’s talking about didn’t even say that, they said only what is reasonable: that they don’t remember it. How would they remember it? They weren’t there, remember? They were in the house but they were not in the room. They were downstairs in the living room, while the assault Ford describes happened upstairs in a bedroom with the door closed. Ford tried to scream but Kavanaugh stifled her mouth so hard she had trouble breathing and was afraid she would die. The music in the bedroom was turned up. When she escaped Ford locked herself in the bathroom until Kavanaugh and Judge careened, laughing, back downstairs, and then she left the house. She didn’t pause to tell everyone present what had just happened; she didn’t tell anyone. So the people there were not in a position to remember the assault that they never knew about in the first place.

Almost as obvious is the fact that saying you don’t remember a thing is not the same as refuting that thing. Not at all, and it’s a crucial distinction, and no lawyer could possibly not know that. No rational adult human should be unaware of that.

Less obvious is that it would be hard for anyone involved to refute Ford’s allegation in any case. Dispute, yes, reject, yes, but refute – that’s a higher burden. It’s hard for her to establish it, because it was so long ago and because she’s unsure about date and place, and it’s hard to refute for the same and related reasons. It would need an exact time and place and irrefutable evidence that Kavanaugh was somewhere else at that time.

And he’s a lawyer. He knows it’s bullshit to say her friends refuted her allegations because they said they don’t remember – but he also knows people are sloppy about these distinctions and he can probably get away with it. The truth is that uncorroborated is what it is, and refuted is not.

And he’ll probably be on the Supreme Court soon.

The Times has breaking news:

The White House has authorized the F.B.I. to expand its abbreviated investigation into sexual misconduct allegations against Judge Brett M. Kavanaugh by interviewing anyone it deems necessary as long the review is finished by the end of the week, two people briefed on the matter said on Monday.

The new directive came in the past 24 hours after a backlash from Democrats, who criticized the White House for limiting the scope of the bureau’s investigation into President Trump’s nominee for the Supreme Court. The F.B.I. has already completed interviews with the four witnesses its agents were originally asked to talk to, the people said.

I don’t know if this is more of the same bullshit we’ve been getting since Friday.

The revised White House instruction amounted to a risky bet that the F.B.I. will not find anything new in the next four days that could change the public view of the allegations. Republicans have resisted an open-ended investigation that could head in unpredictable directions. But the limited time frame could minimize the danger even as it heightens the likelihood that F.B.I. interviews do not resolve the conflicting accounts.

Mr. Trump said he instructed his White House counsel, Donald F. McGahn II, over the weekend to tell the F.B.I. to carry out an open investigation, although he included the caveat that it should accommodate the desires of Senate Republicans. Mr. McGahn followed through with a call to the F.B.I., according to the people briefed on the matter.

I’m sure he’s almost completed dialing the number now.

Mr. Trump ordered the one-week F.B.I. investigation on Friday after Senator Jeff Flake, Republican of Arizona and a key swing vote on the nomination, insisted that the allegations be examined before he committed to voting to confirm Judge Kavanaugh on the floor. But the White House and Senate Republicans gave the F.B.I. a list of just four people to question: Mark Judge and P.J. Smyth, high school friends of Judge Kavanaugh’s; Leland Keyser, a high school friend of his main accuser, Christine Blasey Ford; and Deborah Ramirez, another of the judge’s accusers.

Mr. Flake expressed concern on Monday that the inquiry not be limited and said he had pressed to make sure that happens. “It does no good to have an investigation that gives us more cover, for example,” he said in a public appearance in Boston. “We actually have [to] find out what we can find out.”

In interviews, several former senior F.B.I. officials said that they could think of no previous instance when the White House restricted the bureau’s ability to interview potential witnesses during a background check. Chuck Rosenberg, who served as chief of staff under James B. Comey, the former F.B.I. director, said background investigations were frequently reopened, but that the bureau decides how to pursue new allegations.

“The White House normally tells the F.B.I. what issue to examine, but would not tell the F.B.I. how to examine it, or with whom they should speak,” he said. “It’s highly unusual — in fact, as far I know, uniquely so — for the F.B.I. to be directed to speak only to a limited number of designated people.”

Unusual and a grotesque abuse of power. Next question?

Ok fine you can have your god damn investigation if you’re going to get in such a fit about it. You just can’t interview anyone. Jane Mayer and Ronan Farrow in the New Yorker:

As the F.B.I. began its investigation this weekend into allegations of sexual misconduct by Brett Kavanaugh, President Trump’s Supreme Court nominee, several people who hope to contribute information about him to the F.B.I. said that they were unable to make contact with agents.

That’s interesting, because we the public have been being told don’t wait to be called, if you have any relevant information get in touch with the FBI yourselves.

With a one-week deadline looming over the investigation, some who say they have information relevant to the F.B.I.’s probe are suspicious that the investigation will amount to what one of Kavanaugh’s former Yale classmates called a “whitewash.” Roberta Kaplan, an attorney representing one potential witness, Elizabeth Rasor, a former girlfriend of Kavanaugh’s high-school friend Mark Judge, said her client “has repeatedly made clear to the Senate Judiciary Committee and to the F.B.I. that she would like the opportunity to speak to them.” But, Kaplan said, “We’ve received no substantive response.”

That is, Trump and his administration are calculatedly and deliberately ignoring potential information about a nominee to the Supreme Court who could be there for forty years or more. They don’t want to know he assaulted X or threw up on Y while blind drunk; they want only to put their guy on the court so that he can take rights away from women and workers and brown people for generations.

Christine Blasey Ford has accused Judge of being an accessory to Kavanaugh’s alleged sexual assault on her, in 1982, when they were all in high school. Kavanaugh has vehemently denied any role in the assault, and Judge, through his attorney, Barbara Van Gelder, also has denied any recollection of it. Kaplan said that early this past week she began reaching out to the F.B.I. and to the Senate Judiciary Committee on Rasor’s behalf. “She feels a sense of civic duty to tell what she knows,” Kaplan said. “But the only response we’ve gotten are e-mails saying that our e-mails have been ‘received.’ ” At one point, she said, an F.B.I. official suggested she try calling an 800-number telephone tip line.

Ford’s attorney has had the same experience, despite multiple attempts to get through to the FBI.

Rasor dated Judge on and off for two to three years while they were students at Catholic University, and she is now a public-school teacher in New York. After hearing Judge’s denials, Rasor came forward, offering to give a sworn statement to the F.B.I. challenging Judge’s credibility. According to Kaplan, the F.B.I. has so far shown no interest in hearing what Rasor has to say, and efforts to contact the Bureau have gone nowhere.

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Leah Litman, an assistant professor of law at the University of California, Irvine, said the severe restrictions on the scope of the investigation made it “a joke.” She asked, “What kind of an investigation into an assault that happened under the influence of alcohol doesn’t include investigating the accused’s use of alcohol?” She said, “Usually, the F.B.I. investigators aren’t told who to call and who not to.” She said that Rasor should be interviewed, given her past relationship with Judge. “If Mark Judge is on the ‘approved’ list of witnesses, and they are interviewing him, there is no reason not to interview Rasor, who has testimony that is very relevant to his credibility, and the testimony that he would offer,” she said.

Yes but that might be bad for Kavanaugh so nope nope nope.

Democratic officials with experience overseeing F.B.I. background investigations disputed that there was anything procedurally routine thus far in the F.B.I.’s renewed investigation into Kavanaugh. Robert Bauer, who served as the White House counsel to President Obama, said that he had overseen numerous F.B.I. background investigations and never seen one so circumscribed. “The F.B.I. should have the latitude to determine what is necessary in a credible, professional inquiry,” he said. “The issue on the table is, Did he or didn’t he engage in the conduct that Dr. Ford alleged?” To reach the answer, he said, “The F.B.I. needs to utilize its expertise to investigate. But instead the White House has dictated a restricted investigative plan. So it’s contaminated at the core.”

But if you know something, do call the FBI. Just be prepared to wait.

A widely shared post by Emily Denny from September 27:

I believe Brett Kavanaugh. I believe that he truly doesn’t remember sexually assaulting someone. I believe that he’s forgotten all the hurt he has caused women. I believe that he didn’t understand the gravity of his actions as a 17-year-old. I believe that the night he forever altered Dr. Ford’s life is just another blip in the foggy haze of his teenage years.

I believe his upbringing and his privilege poisoned his ability to understand right and wrong. I believe he didn’t write “sexually assault someone” in his calendar. I believe he doesn’t think he did it.

I believe he’s frightened and upset. I believe his tears and whimpers. I believe that he truly thinks that this has ruined his life. I believe that he thinks that potentially not getting a job and having some people say mean things about him on the internet has “ruined his life”. I believe he thinks this is the worst case scenario.

And if this isn’t a blistering account of the status of wealth and privilege in this country, I don’t know what is.

I believe you, Dr. Ford.

I differ with her on one item. I’m not sure I do believe that he doesn’t think he did it. If he does, and if the many accounts of what a belligerent drunk he was are true, he has no intellectual right to think that. He’s a judge ffs, not an overworked high school teacher who works 20 hours a week at Starbucks on top of teaching and has no time to learn about alcohol and memory – he’s a judge and an abusive alcoholic, so he damn well should be informed about alcohol and memory and how both connect to abuse. He should be fully aware that getting blackout drunk can wipe your memory, and that that means it’s very likely that he’s forgotten big patches of time. He should be well aware that he fits the description. He should be well aware that what Ford describes sounds hideously plausible. He should be well aware that when he gets drunk he can be dangerous to others. He should be well aware of a lot of things that he furiously denies.

That all by itself is reason enough not to put him on the Supreme Court. He seems to let his self-interest and ego override obvious likelihoods and patterns, which isn’t good in a judge. He seems to be ignorant of his own cognitive weaknesses, which also isn’t good in a judge.

Chad Ludington gave a statement about Kavanaugh to the press:

I have been contacted by numerous reporters about Brett Kavanaugh and have not wanted to say anything because I had nothing to contribute about what kind of justice he would be. I knew Brett at Yale because I was a classmate and a varsity basketball player and Brett enjoyed socializing with athletes. Indeed, athletes formed the core of Brett’s social circle.

In recent days I have become deeply troubled by what has been a blatant mischaracterization by Brett himself of his drinking at Yale. When I watched Brett and his wife being interviewed on Fox News on Monday, and when I watched Brett deliver his testimony under oath to the Senate Judiciary Committee on Thursday, I cringed. For the fact is, at Yale, and I can speak to no other times, Brett was a frequent drinker, and a heavy drinker. I know, because, especially in our first two years of college, I often drank with him. On many occasions I heard Brett slur his words and saw him staggering from alcohol consumption, not all of which was beer. When Brett got drunk, he was often belligerent and aggressive. On one of the last occasions I purposely socialized with Brett, I witnessed him respond to a semi-hostile remark, not by defusing the situation, but by throwing his beer in the man’s face and starting a fight that ended with one of our mutual friends in jail.

It is perhaps not pushing things too far to surmise that Kavanaugh’s belligerence is why that was one of the last times Ludington hung out with him on purpose.

I do not believe that the heavy drinking or even loutish behavior of an 18- or even 21-year-old should condemn a person for the rest of his life. I would be a hypocrite to think so. However, I have direct and repeated knowledge about his drinking and his disposition while drunk. And I do believe that Brett’s actions as a 53-year-old federal judge matter. If he lied about his past actions on national television, and more especially while speaking under oath in front of the United States Senate, I believe those lies should have consequences. It is truth that is at stake, and I believe that the ability to speak the truth, even when it does not reflect well upon oneself, is a paramount quality we seek in our nation’s most powerful judges.

Another Yale buddy turns up to say no actually Kavanaugh drank like a fish and could barely stay upright when he did.

A Yale classmate of Judge Brett M. Kavanaugh’s accused him on Sunday of a “blatant mischaracterization” of his drinking while in college, saying that he often saw Judge Kavanaugh “staggering from alcohol consumption.”

The classmate, Chad Ludington, who said he frequently socialized with Judge Kavanaugh as a student, said in a statement that the judge had been untruthful in testimony to the Senate Judiciary Committee when he had denied any possibility that he had ever blacked out from drinking.

Mr. Ludington said that Judge Kavanaugh had played down “the degree and frequency” of his drinking, and that the judge had often become “belligerent and aggressive” while intoxicated. Other former classmates have made similar claims.

And one of the things that makes the claims credible is the fact that Kavanaugh got so very belligerent and aggressive right in front of us. The guy is obviously a belligerent asshole even when sober.

Mr. Ludington, a professor at North Carolina State University who appears to have made small political contributions to Democratic candidates, said to The New York Times on Sunday that he had been told by the F.B.I.’s Washington, D.C., field office that he should go to the bureau’s Raleigh, N.C., office on Monday morning. He said he intended to do that, so he could “tell the full details of my story.”

It is illegal to lie to Congress. But it was unclear whether the F.B.I. would add Mr. Ludington’s accusations to the newly reopened background investigation into allegations of sexual misconduct against Judge Kavanaugh, which has been limited in scope and time by the White House and Senate Republicans.

Because they are determined to get an angry hostile pugnacious drunk onto the Supreme Court.What could possibly go wrong?

Democrats in Washington reacted with anger on Sunday as the narrow scope of the new F.B.I. background inquiry became clear, warning that it threatened to become a sham.

Senator Mazie K. Hirono, a Hawaii Democrat on the Judiciary Committee, said on ABC’s “This Week” that any investigation that limits whom the F.B.I. can interview and which leads agents can follow would be a “farce.”

Senator Amy Klobuchar, a Minnesota Democrat who is also on the committee, described what she said was micromanaging from the White House: “You can’t interview this person, you can’t look at this time period, you can only look at these people from one side of the street from when they were growing up.”

“I mean, come on,” she said on CNN’s “State of the Union.”

Yes but did you ever black out from drinking?

Trump says stay tuned.

Wow! Just starting to hear the Democrats, who are only thinking Obstruct and Delay, are starting to put out the word that the “time” and “scope” of FBI looking into Judge Kavanaugh and witnesses is not enough. Hello! For them, it will never be enough – stay tuned and watch!

— Donald J. Trump (@realDonaldTrump) September 30, 2018

Roger Cohen nailed the Kavanaugh operetta well:

What America saw before the Senate Judiciary Committee was an injudicious man, an angry brat veering from fury to sniveling sobs, a judge so bereft of composure and proportion that it was difficult not to squirm. Brett Kavanaugh actually got teary over keeping a calendar because that’s what his dad did. His performance was right out of Norman Rockwell with a touch of “Mad Men.”

This is what you get from the unexamined life, a product of white male privilege so unadulterated that, until a couple of weeks ago, Kavanaugh never had to ask himself what might have lurked, and may still linger, behind the football, the basketball, the lifting weights, the workouts with a great high-school quarterback, the pro-golf tournaments with Dad, the rah-rah Renate-ribbing yearbook, the Yale fraternity, and the professed sexual abstinence until “many years” after high school.

Oh and one more thing, that doesn’t get enough attention – the Catholicism. There’s nothing like religion for making unreflective people think they’re inherently and necessarily better than other people. A good Catholic boy would never try to rape a girl! That’s something an atheist would do! Or a Jew or a wimpy liberal Protestant.

Christine Blasey Ford rang true. I’ll take her “100 percent” over his. She felt no need to yell. Nor did she hide behind a shield of repetition. She did not succumb to pathos (“I may never be able to coach again”). She spoke with a deliberation, balance and humanity missing in the judge.

This was a job interview, not a criminal trial. The accusation against Kavanaugh — involving an incident 36 years ago in an undetermined location, uncorroborated by those present — would not currently stand up in a court of law. As a juror, with the available evidence, I could not say “beyond a reasonable doubt” that he committed this assault. (This, of course, is precisely the evidence that the F.B.I. investigation that Kavanaugh evaded backing, and that Senator Jeff Flake has now decisively endorsed, might produce.)

But Kavanaugh’s bleating about due process and presumption of innocence — his rage at a supposed “national disgrace” — misses the point. He failed the job interview. Who would want this spoiled man pieced together on a foundation of repressed anger and circumscribed privilege — this man who quite plausibly was the teenage drunk near-suffocating Christine Blasey Ford as he ground his body against hers, this man who may now have perjured himself — occupying a place for life on the highest court in the land?

Who indeed; it amazes me that anyone would, Republicans included.

Jennifer Rubin argues that Kavanaugh’s enraged performance makes him a terrible fit for the Supreme Court.

…here I want to focus on what may be the most significant issue — whether Kavanaugh’s “big reveal” that he is an angry partisan who thinks Democrats conspired to get him — now disqualifies him to sit on any court, let alone the Supreme Court.

That’s one of those questions that demand a single answer. No, an angry partisan who thinks Democrats conspired to get him should not be on the Supreme Court, because the court is emphatically not supposed to be a party-based institution.

The judiciary’s role in vital, hot-button issues has increased, making the Supreme Court seats precious, but the Senate acted as a brake, ensuring that qualified and temperamentally fit people were confirmed. Then the GOP became a right-wing, radical party that eschewed long-held principles such as truth, humility, decorum and respect. Republicans radicalized, and with no filibuster to sift out the political operatives from the judges, we get Kavanaugh’s nomination.

Not to put too fine a point on it, but should not Kavanaugh recuse himself from every case involving a left-leaning group that is part of the conspiracy he decried?

As he yelled at Democrats on the Senate Judiciary Committee, it was not hard to imagine that he would be less than evenhanded if they were a party in litigation. “With his unprecedented attacks on Democrats and liberals, Kavanaugh must now likely broadly recuse himself from matters including those groups,” says ethics guru Norman Eisen. “It may wipe out a substantial portion of his docket should he be confirmed. We have a rule of thumb in government ethics: When recusals are so broad that the nominee can’t do his job, then maybe he shouldn’t be confirmed to the position. It is time to consider that question here.”

But the rules about recusal are different for the Supreme Court…which is looking very unfortunate right now.

“As a Supreme Court justice, Kavanaugh would not be bound by the rules applicable to judges on the U.S. Court of Appeals with respect to recusal,” says Harvard law professor Laurence H. Tribe. For lower-court judges operating under those guidelines, Tribe argues “there is a very strong argument that Kavanaugh’s intemperate screed attacking liberal groups and spinning conspiracy theories when he testified on Thursday afternoon now requires him to recuse in any case where such groups appear before the Court of Appeals on which he sits.” Tribe continues, “For him to remain on a three-judge panel that sits in judgment on any legal claim affecting such a group would obviously create at least the appearance of a conflict of interest and probably an actual conflict.”

He explains, “It follows – not from rules that wouldn’t technically bind him but from the principles about which Norm Eisen, Judge [Timothy] Lewis and I wrote in our Brookings Report of September 4 about the substantive areas from which Kavanaugh would have to recuse under cases like Williams-Yulee (and from the importance of maintaining the Supreme Court’s credibility as a fair arbiter of core legal questions) – that Judge Kavanaugh could not credibly cast a vote or participate in any way as a Supreme Court Justice in any of the very substantial number of cases that court decides each year involving litigants, whether individuals or organizations, that Kavanaugh evidently blames for orchestrating what he sees as an outrageous attack on his integrity, his decency, and his very life as well as the life of his family.”

In a situation where rules actually operated, Kavanaugh’s performance on Thursday would have killed his nomination stone dead. We’re not in that situation; the rules have been indefinitely suspended.

A good number of Americans already believe the Supreme Court is nothing more than a mini-legislature with two warring factions, fighting for that fifth seat to deliver “wins” for its side. Putting a judge on the Supreme Court who expressed hatred and resentment toward a wide swath of the Democratic Party would shred whatever is left of the court’s intellectual integrity.

Before Christine Blasey Ford stepped forward, I speculated that Kavanaugh’s smaller misstatements and evasions in testifying (e.g., his role in Charles Pickering’s confirmation, his knowledge that reports from a GOP operative came from emails purloined from Democrats) might have been part of an effort to tone down his role as a partisan. He had been a dogged antagonist of the Clintons as a lawyer working for independent counsel Kenneth W. Starr, after all,  and any additional sign of hyperpartisanship could have been curtains for him in 2006.

It seems I was more right than I possibly could have anticipated. This is a man soaked in the Clinton wars, who delivered dozens of speeches thrilling conservative activists at the Federalist Society and now lets on that he harbors rabidly hostile views of the Democrats. It’s inconceivable someone so biased, someone who vowed revenge (“What goes around, comes around,” he shouted), could be elevated to the Supreme Court. And yet, he might.

He might.

Matt Damon does Kavanaugh: