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Brett Kavanaugh – Closing Argument

I had not intended to post another piece on Brett Kavanaugh, but after watching the entire hearing yesterday I feel compelled to write a final piece.  The hearing was certainly dramatic, and it was hard to feel empathy for both Dr. Ford and Judge Kavanaugh.  They are both human beings.  We witnessed a broken, dysfunctional Senate, extreme partisanship, and lack of professionalism.  After the smoke cleared, it was important for each Senator and the American people watching to make an important judgment.  Should Brett Kavanaugh be confirmed to the Supreme Court.

The one clear result of the hearing was exactly as most expected – there was not a definitive answer as to what happened.  Dr. Ford was entirely credible about the assault against her.  Judge Kavanaugh emphatically and passionately denied he was the one who assaulted her.  No other witnesses were called to testify.  That makes it hard for most fair-minded people.  However, in addition to her live testimony about the assault, she had previously discussed the assault in consistent terms.  She told her husband about it in 2002 and her therapist about it in 2012.  In those revelations, she named Brett Kavanaugh.  Both discussions were well before the 2016 election and well before Kavanaugh was ever nominated for the Supreme Court.  She has no bias, no improper motivation, and no reason to lie.

Contrast that with Brett Kavanaugh’s testimony.  His opening statement by itself was disqualifying.  We could expect emotion, emphatic denial of the allegations, and concern for his family.  The latter was rather compelling indeed.  He then broke all protocol, professionalism, and dignity by engaging in extreme partisan politics, attacks on Democrats, attacks on the Judiciary Committee, and discussions of wild conspiracy theories.  Throughout his testimony he was rude, disrespectful, and combative.  He certainly had the right to disagree and respond to questions.  However, he refused to answer questions and was extremely antagonistic.  Anyone could understand how difficult this has been for he and his family, but that does not excuse the unprecedented vitriol and gross departure of standards.  He displayed a temperament unbefitting any judge and certainly not one for the Supreme Court.

There was more evidence available, but the Republicans opted to ignore it and push forward with the race to confirm, despite the serious allegations.  The necessary and proper course of action would have been to have the FBI investigate.  They could have confirmed the allegations or cleared Judge Kavanaugh.  Either result would be critical in moving forward.  Republicans misquoted Joe Biden.  In 1991, Biden did say that the FBI does not offer conclusions or recommendations.  Biden admonished Senators for attempting to cite the FBI report as disproving the allegations of sexual harassment because they did not conclude guilt.

The truth is Biden supported the practice of FBI conducting background checks and valued the information they collected and provided.  While they did not opine on guilt, their reports contained the most complete factual picture available upon which Senators, et al, could rely in making decisions.  The FBI can discover, locate, and interview witnesses far better and more efficiently than can Congressional staffers or the Judiciary Committee.  Senate Republicans and the White House refused to ask the FBI to investigate these serious allegations, even after additional women came forward.  If innocent, the FBI would have reported facts that served to clear Kavanaugh.  Yet Kavanaugh and the Republicans feared the results of an FBI investigation.

Alternatively, the Judiciary Committee has the power to subpoena witnesses to testify in and open or closed session.  The Republicans refused to do this as well.  They should have subpoenaed Mark Judge, Kavanaugh’s friend alleged to have been a witness/participant in the assault.  They should have subpoenaed Kavanaugh’s freshman roommate, who had extremely relevant testimony about Kavanaugh’s behavior with alcohol and women.  There are classmates of Kavanaugh who have made statements to the effect that Kavanaugh has been lying to the Senate.  And there are witnesses provided by Dr. Ford that could provide meaningful testimony.  Kavanaugh and the Republicans do not want any of the witnesses to testify because they fear the information will hurt the conformation.  That tells us all we need to know.

In the first article on September 8th, I discussed Kavanaugh’s professional record and his ethical and professional lapses that should result in him not being confirmed to the Supreme Court.  Briefly restated, as a member of the Ken Starr Independent Counsel team, Kavanaugh leaked sensitive, false information to the media that could not be used in the investigation but would hurt and defame President Clinton.  He strongly advocated to require President Clinton to answer detailed, salacious, highly inappropriate questions.  Kavanaugh lied about the use of stolen information in judicial confirmations.

Kavanaugh refused to discuss the views he had previously publicly expressed concerning Presidential authority and immunity, two very critical issues at the moment.  These specific views are the reason President Trump added Kavanagh to his “short list” of Supreme Court nominees, attempting to ensure support on the Court for when cases arise from the Russia investigation.  Republicans have withheld 90% of Kavanaugh’s professional work in an unprecedented attempt to conceal a nominee’s record.  These and related concerns were sufficient cause to disapprove his confirmation, even without the allegations of sexual assault.

From the information presented, there is a tale of two Brett Kavanaughs.  The young man was an excessive drinker who at a minimum had bouts of inappropriate behavior.  In all likelihood he committed sexual misconduct.  There may not be absolute proof, but there is enough reason to be concerned.  As a judge and professor, there does not seem to be an issue with Kavanaugh’s personal and professional behavior.  He is married with a family and it is not uncommon for a person to transform their behavior as they mature.  The question remains whether the allegations from high school and college are nonetheless of a nature to disqualify him, or at least diminish his nomination.  Additionally, there is still some concern about his early professional life regarding ethical and professional lapses.  Then that takes us to his professional performance on the bench.  While he appears to be widely respected, his views on Presidential authority and immunity have not been tested and it is imperative to understand how he would approach these issues judicially because of the incredible likelihood that he will face an issue concerning Presidential authority and immunity concerning President Trump.

There is far too much information missing from the record to confirm Kavanaugh.  From the concealed records, the refusal to discuss Presidential authority and immunity, and the lack of proper investigation of the sexual allegations, the Senate simply should not be voting and certainly not confirming someone to this critical, lifetime appointment with such a profound impact on the nation.  Senators should vote no.  We can do better.

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