Will Kavanaugh Be Found Unmutual?

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I saw this posted this morning on MeWe by Kevin Z. Williamson. The more I watched it, the more I thought The Prisoner was way ahead of its time and that it was a preview of what we might see today from certain members of the Senate Judiciary Committee.

Will Judge Kavanaugh be found to be disharmonious? Will he be deemed unmutual? Will DiFi remember to wear her top hat and stripes?

Ford’s Prepared Testimony Before The Senate Judiciary Committee

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Earlier today I published the prepared testimony of Judge Brett Kavanaugh which contained his unequivocal denial of participating in any and all sexual assaults. Needless to say, I believe him.

Dr. Christine Blasey Ford’s attorney has now posted her prepared testimony which is scheduled to be delivered before the Senate Judiciary Committee tomorrow. If this were the court of law instead of the court of public opinion, this case would never have even gotten to trial. As it is, this was meant to be the Democrat’s bombshell revelation that would take down a good man and destroy his chances of serving on the Supreme Court. I imagine it was also intended to force him to step down from his position as a judge on the Court of Appeals for the DC Circuit. I think it will fail as well it should.

Judge Kavanaugh’s Prepared Statement For Thursday’s Senate Hearing

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Judge Brett Kavanaugh’s prepared testimony for his appearance before the Senate Judiciary Committee has been released. In it, he addresses the charges by Dr. Christine Blasey Ford that he sexually attacked her at a party 36 years ago. He categorically denies it.

It is a strong statement but I wish he might have taken the approach of Justice Clarence Thomas and called it for what it is – bullshit. However, Kavanaugh is a more measured, judicious, and temperate person than I am which is why he’s a judge and I’m not.

As posted at The Atlantic:

Mr. Chairman, Ranking Member Feinstein, and Members of the Committee:

Eleven days ago, Dr. Ford publicly accused me of committing a serious wrong more than 36 years ago when we were both in high school. I denied the allegation immediately, unequivocally, and categorically. The next day, I told this Committee that I wanted to testify as soon as possible, under oath, to clear my name.

Over the past few days, other false and uncorroborated accusations have been aired. There has been a frenzy to come up with something—anything, no matter how far-fetched or odious—that will block a vote on my nomination. These are last-minute smears, pure and simple. They debase our public discourse. And the consequences extend beyond any one nomination. Such grotesque and obvious character assassination—if allowed to succeed—will dissuade competent and good people of all political persuasions from serving our country.

As I told this Committee the last time I appeared before you, a federal judge must be independent, not swayed by public or political pressure. That is the kind of judge I am and will always be. I will not be intimidated into withdrawing from this process. This effort to destroy my good name will not drive me out. The vile threats of violence against my family will not drive me out. I am here this morning to answer these allegations and to tell the truth. And the truth is that I have never sexually assaulted anyone—not in high school, not in college, not ever.

Sexual assault is horrific. It is morally wrong. It is illegal. It is contrary to my religious faith. And it contradicts the core promise of this Nation that all people are created equal and entitled to be treated with dignity and respect. Allegations of sexual assault must be taken seriously. Those who make allegations deserve to be heard. The subject of allegations also deserves to be heard. Due process is a foundation of the American rule of law.

Dr. Ford’s allegation dates back more than 36 years, to a party that she says occurred during our time in high school. I spent most of my time in high school focused on academics, sports, church, and service. But I was not perfect in those days, just as I am not perfect today. I drank beer with my friends, usually on weekends. Sometimes I had too many. In retrospect, I said and did things in high school that make me cringe now. But that’s not why we are here today. What I’ve been accused of is far more serious than juvenile misbehavior. I never did anything remotely resembling what Dr. Ford describes.

The allegation of misconduct is completely inconsistent with the rest of my life. The record of my life, from my days in grade school through the present day, shows that I have always promoted the equality and dignity of women.

I categorically and unequivocally deny the allegation against me by Dr. Ford. I never had any sexual or physical encounter of any kind with Dr. Ford. I am not questioning that Dr. Ford may have been sexually assaulted by some person in some place at some time. But I have never done that to her or to anyone. I am innocent of this charge.

The Committee Vote Is Friday

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September 25, 2018
 
RESCHEDULED NOTICE OF COMMITTEE EXECUTIVE BUSINESS MEETING
 
        The Executive Business Meeting originally scheduled by the Committee on the Judiciary for Monday, September 24, 2018 at 10:00 a.m., in Room 226 of the Dirksen Senate Office Building has been rescheduled for Friday, September 28 at 9:30 a.m.
 
        By order of the Chairman.

I. Nominees

Brett M. Kavanaugh, to be an Associate Justice of the Supreme Court of the United States

Jonathan A. Kobes, to be United States Circuit Judge for the Eighth Circuit
 
Kenneth D. Bell, to be United States District Judge for the Western District of North Carolina

Stephanie A. Gallagher, to be United States District Judge for the District of Maryland

Mary S. McElroy, to be United States District Judge for the District of Rhode Island

Carl J. Nichols, to be United States District Judge for the District of Columbia
 
John M. O’Connor, to be United States District Judge for the Northern, Eastern and Western Districts of Oklahoma
 
Martha Maria Pacold, to be United States District Judge for the Northern District of Illinois
 
Mary M. Rowland, to be United States District Judge for the Northern District of Illinois
 
Steven C. Seeger, to be United States District Judge for the Northern District of Illinois


II. Bills

S.2785, DETER Act (Durbin, Graham, Blumenthal, Cruz)

S. 3178, Justice for Victims of Lynching Act of 2018 (Harris, Scott, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker)   

Grassley Statement On Kavanaugh’s Accuser (Updated)

Sen. Chuck Grassley, Chairman of the Senate Judiciary Committee, released a statement today regarding Dr. Christine Blasey Ford and her allegations of an attack by Judge Brett Kavanaugh while they were teenagers. The statement below does a good job at being respectful to Ford, calling out Dianne Feinstein and the Democrats, and nailing those in the media who leaked Ford’s name. Grassley has always championed whistle blowers and he brings that credibility to this statement.

WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley issued the following statement regarding the nomination of Judge Brett M. Kavanaugh to the Supreme Court.

“Anyone who comes forward as Dr. Ford has deserves to be heard, so I will continue working on a way to hear her out in an appropriate, precedented and respectful manner.

“The standard procedure for updates to any nominee’s background investigation file is to conduct separate follow-up calls with relevant parties. In this case, that would entail phone calls with at least Judge Kavanaugh and Dr. Ford. Consistent with that practice, I asked Senator Feinstein’s office yesterday to join me in scheduling these follow-ups. Thus far, they have refused. But as a necessary step in evaluating these claims, I’ll continue working to set them up.

“Unfortunately, committee Republicans have only known this person’s identity from news reports for less than 24 hours and known about her allegations for less than a week. Senator Feinstein, on the other hand, has had this information for many weeks and deprived her colleagues of the information necessary to do our jobs. The Minority withheld even the anonymous allegations for six weeks, only to later decide that they were serious enough to investigate on the eve of the committee vote, after the vetting process had been completed.

“It’s deeply disturbing that the existence of these allegations were leaked in a way that seemed to preclude Dr. Ford’s confidentiality.

“Over my nearly four decades in the Senate I have worked diligently to protect whistleblowers and get to the bottom of any issue. Dr. Ford’s attorney could have approached my office, while keeping her client confidential and anonymous, so that these allegations could be thoroughly investigated. Nevertheless, we are working diligently to get to the bottom of these claims.”

UPDATE: A special meeting is scheduled for Monday and both Ford and Kavanaugh will appear.

Judiciary Committee to Hear from Kavanaugh, Ford in Public Hearing


WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) today announced that the Committee will hold a public hearing with Supreme Court nominee Judge Brett Kavanaugh and Dr. Christine Blasey Ford.


“As I said earlier, anyone who comes forward as Dr. Ford has done deserves to be heard. My staff has reached out to Dr. Ford to hear her account, and they held a follow-up call with Judge Kavanaugh this afternoon. Unfortunately, committee Democrats have refused to join us in this effort. However, to provide ample transparency, we will hold a public hearing Monday to give these recent allegations a full airing,” Grassley said.


Below is the official notice for Monday’s hearing.


NOTICE OF COMMITTEE HEARING CONTINUATION


The Senate Committee on the Judiciary hearing on the nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States will continue Monday, September 24, 2018 at 10:00 a.m. in Room 216 of the Hart Senate Office Building.
By order of the Chairman.

A New Word For The Political Lexicon – Feinsteined

Ari Fleischer, former press secretary for Pres. George W. Bush, has come up with a new word for the political lexicon. It is Feinsteined. This is when an anonymous letter from an anonymous source with an unknown allegation is supposedly sent to the FBI in an effort to derail the nomination of a judicial candidate. In this case, the nominee is Judge Brett Kavanaugh and the allegations may or may not be something non-sexual he did at a party with a girl when he and she were 17 years old.

In the interest of full disclosure, I may or may not have gotten drunk at a New Year’s Eve party when I was 17 and may or may not have kissed a girl at the stroke of midnight who was another guy’s girlfriend and may or may not have gotten in trouble with my mom for coming home drunk from a party.

Day Two Of Project Gunwalker At Lynch’s Confirmation Hearings

The second day of the Senate Judiciary Committee confirmation hearings for Loretta Lynch featured nine witnesses who touched upon a number of things. There were the “Loretta was a great US Attorney and I felt fortunate to work with her comments” from attorney David Barlow and former FBI Assistant Director in Charge Janice Fedaryck. There was the “Loretta comes from a good Baptist family” testimony by Rev. Dr. Clarence Newsome. There was the testimony from law professor Stephen Legomsky that said he was “the” expert on immigration law and Obama’s actions on making illegal aliens legal was OK with him.

Then there was what I consider the meat of the day:  the witnesses who described just bad the Department of Justice has gotten, how it has screwed people over, and how it has looked the other way at the abuses of power by the White House. Catherine Englebrecht of True the Vote described how the dogs of war were unleashed on her when she filed applications for non-profit status for two organizations. These “dogs of war” include the IRS, OSHA, the FBI, and BATFE. Sheriff David Clarke of Milwaukee discussed how the Department of Justice under Eric Holder was actively hostile to local law enforcement. He discussed how Holder and DOJ made the situation in Ferguson, Missouri worse by inserting itself where it had no business. Professor Nicholas Rosenkranz of Georgetown and the Cato Institute spoke about the role of the Attorney General in providing legal advice to the President and how Eric Holder has failed in this regard.

Then there was the testimony of Sharyl Attkisson and Professor Jonathan Turley. They were the bookends, so to speak, as they began and ended the testimony for the day. Leading off was Ms. Attkisson who described how she had been targeted by the Justice Department for her factually accurate reporting on
Operation Fast and Furious (among other things).

When I reported on factual contradictions in the administration’s accounts
regarding Fast and Furious, pushback included a frenzied campaign with White
House officials trying to chill the reporting by calling and emailing my superiors and
colleagues, and using surrogate bloggers to advance false claims. One White House
official got so mad, he angrily cussed me out.

The Justice Department used its authority over building security to handpick
reporters allowed to attend a Fast and Furious briefing, refusing to clear me into the
public Justice Department building.

Advocates had to file a lawsuit to obtain public information about Fast and Furious
improperly withheld under executive privilege. Documents recently released show
emails in which taxpayer paid White House and Justice Department press officials
complained that I was “out of control,” and vowed to call my bosses to try to stop my
reporting.

Let me emphasize that my reporting was factually indisputable. Government
officials weren’t angry because I was doing my job poorly. They were panicked
because I was doing my job well.

While the testimony of Ms. Attkisson was damning, I think the testimony of Prof. Jonathan Turley of George Washington University was even more damning of the Justice Department under Eric Holder. Turley admitted he voted for Obama and supported many of the Administration’s policies. Turley is a DC insider. He appears on Sunday morning talk shows, he writes op-eds, he goes to the insider cocktail parties, and he rubs elbows with the powers that be.

Turley submitted a 26-page written testimony accusing the Justice Department of being the architect of the effort to expand the power of the presidency beyond what was Constitutional. He says that they actively attempt to block legislative authority and Congressional oversight. The most egregious example of this, in Turley’s opinion, and the one that best captures the obstruction of Congress in recent years is Operation Fast and Furious. Turley devotes seven pages of his testimony to it.

However, the controversy that best captures the obstruction of Congress in recent years is
the response of the Obama Administration in the Fast and Furious investigation. The
reason that Fast and Furious is particularly illustrative is for a couple of salient factors.
First, no one (not even General Holder) defends the Fast and Furious operation, which
proved as lethal as it was moronic. It is a prototypical example of a program that is
legitimately a focus of congressional oversight authority. A federal agency was
responsible for facilitating the acquisition of powerful weapons by criminal gangs,
including weapons later used to kill United States Border Patrol Agent Brian Terry in
December 2010. Congress has investigated not only the “gunwalking” operation, but
also what it saw as concealment and obstruction, by the Administration, in its efforts to
investigate the operation. Second, Congress had ample reason to expand its investigation
after the Justice Department sent a letter on February 4, 2011 stating categorically that no
gunwalking had taken place. It was not until December 2011 that Attorney General Holder informed Congress that it had been given false information and the letter was
formally withdrawn. Congress responded by expanding the investigation into the false
information given to it by the Executive Branch and the months of delay before Congress
was informed of the misrepresentation of the facts underlying Fast and Furious. Finally,
the position of the Justice Department on withholding documents has, in my view, been
facially invalid and lacking in any credible good-faith interpretation of the executive
privilege.

Turley goes on to say that one of the most troubling aspects of the Justice Department’s behavior has been its refusal to prosecute the House of Representative’s contempt citation against Eric Holder.

One of the most troubling aspects of the Fast
and Furious
investigation was not just the withholding of non-privileged material but the
later refusal of the Justice Department to submit the alleged violation to a grand jury—
despite a historic vote of the House of Representatives finding General Holder in
contempt. The decision to block any prosecution was a violation of a long-standing agreement between the branches and represents a serious affront to the institutional
authority of this body.

He goes on to attack the Obama Administration’s circular reasoning cited for withholding requested documents saying “I have had criminal defense clients
who would only envy such an ability to cite the basis for a criminal charge as the defense
to a criminal charge.”

I don’t think any of the testimony given in day two of the hearings will derail Ms. Lynch’s confirmation as the next Attorney General. I really have no doubt that she will be confirmed. I see this testimony as more an airing of grievances and an attempt to put the Administration on notice that a Republican-majority Senate – unlike the Democratic-majority Senate run by Sen. Harry Reid (D-NV) – is watching them.

Project Gunwalker Makes It Into Loretta Lynch’s Confirmation Hearing

Project Gunwalker aka Operation Fast and Furious was mentioned today as the confirmation hearings for Loretta Lynch to become the 83rd Attorney General began. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) had this to say in his opening statement:

The Department’s own Inspector General listed as one of its top management challenges:
“Restoring Confidence in the Integrity, Fairness, and Accountability of the Department.”

He cited several examples, including the Department falsely denying basic facts in the Fast and
Furious controversy. The Inspector General concluded this “resulted in an erosion of trust in the
Department.”

In that fiasco, our government knowingly allowed firearms to fall into the hands of international
gun traffickers.

And it led to the death of a Border Patrol Agent, Brian Terry.

And then, after Congress called on the leadership of the Department to account for this foolish
operation, what did they do?

Did they apologize to the family and rush to uncover the truth?

Quite the opposite.

They denied, spun and hid the facts from Congress and the American people.

They bullied and intimidated whistleblowers, members of the press, and anyone who had the
audacity to investigate and uncover the truth.

 You can listen to this in the live video of Lynch’s hearings at the 25:00 to 26:09 marks.

While it won’t bring back the lives of Brian Terry and Jaime Zapata, I’m glad Sen. Grassley at least hasn’t forgotten them and what was a proximate cause of their deaths.

Senate Judiciary Committee Confirmation Hearings On Loretta Lynch

Loretta Lynch, the US Attorney for the Eastern District of New York, is President Obama’s nominee to succeed the despicable Eric Holder as Attorney General. The Senate Judiciary Committee will hold hearings on her nomination starting tomorrow at 10am. The committee is now headed by Sen. Chuck Grassley (R-IA).

The committee has released its witness list. Looking it over there are some very interesting names on the list such as Sharyl Attkisson, Catherine Engelbrecht of True the Vote, and Sheriff David Clarke of Milwaukee. You have to wonder if they will discuss Operation Fast and Furious, the hacking of Attkisson’s computer, the targeting of conservative non-profits by the Obama Administration, the vilification of law enforcement by Holder, and other such topics. I would also note that Professors Rosenkranz and Turley both are affiliated with the libertarian Cato Institute.

The full list is below:

Witnesses


Panel I


Loretta Lynch
U.S. Attorney For The Eastern District Of New York
U.S. Department of Justice
Brooklyn , NY


Panel II


Sharyl Attkisson
Investigative Journalist


David Barlow
Partner
Sidley Austin LLP


David A. Clarke, Jr.
Sheriff
Milwaukee County, Wisconsin


Catherine Engelbrecht
Founder
True The Vote


Janice K. Fedarcyk
Fedarcyk Consulting LLC


Stephen H. Legomsky
John S. Lehmann University Professor
School of Law at Washington University


The Reverend Doctor Clarence Newsome
Cincinnati , OH


Nicholas Quinn Rosenkranz
Professor Of Law, Georgetown University Law Center
Senior Fellow in Constitutional Studies Cato Institute


Johnathan Turley
Professor, J.B. And Maurice C. Shapiro Chair Of Public Interest Law
Georgetown Law School Senior Fellow in Constitutional Studies Cato Institute
Washington , DC

Dick Durbin’s Dog And Pony Show On Stand Your Ground

Sen. Dick Durbin (D-IL), chairman of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights, finally held his delayed hearing on so-called Stand Your Ground laws. The hearing entitled, “‘Stand Your Ground’ Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force”, was originally scheduled to be held on September 17th.

The witness list changed somewhat from the earlier scheduled hearing. It added three US Representatives as witnesses in one panel and substituted the president of a prosecutor’s association for a Florida state’s attorney. The list is below:

Panel I

The Honorable Marcia L. Fudge
United States Representative (D-OH-11)
Washington, DC

The Honorable Luis V. Gutierrez
United States Representative (D-IL-4)
Washington, DC

The Honorable Louie Gohmert
United States Representative (R-TX-1)
Washington, DC

Panel II

Sybrina Fulton
Miami, FL

David LaBahn
President and CEO
Association of Prosecuting Attorneys
Washington, DC

Lucia McBath
Atlanta, GA

Ronald S. Sullivan, Jr.
Clinical Professor of Law, Director of the Criminal Justice Institute
Harvard Law School
Cambridge, MA

John R. Lott, Jr., Ph.D.
President
Crime Prevention Research Center
Swarthmore, PA

Ilya Shapiro
Senior Fellow in Constitutional Studies
Cato Institute
Washington, DC

The webcast of the 2 hour hearing can be seen here.

Fortunately, you don’t have to wade through all 2 hours of testimony to get the gist of what was said. Attorney Andrew Branca, author of The Law of Self Defense, 2nd Ed. has done it for us over at the Legal Insurrection blog. In addition to summarizing the testimony of each witness as well as that of the senators on the panel, he gives his take on the whole charade.

My first general observation is that the anti-SYG folks were, as experience would suggest, big on emotion and small on actual facts, law, or data.

One of the anti-SYG witnesses, Professor Sullivan from Harvard Law School, did raise some actual data–but when these were utterly destroyed by the later testimony of Dr. John Lott and Elliot Shapiro of CATA (sic), Professor Sullivan was swift to discount the use of data (which he himself had introduced into the testimony) and instead focus on the “real people” behind the data. In sharp contrast, the testimony of the pro-SYG speakers was focused and direct.

Second, the anti-SYG folks persistently conflated the legal concept of Stand Your Ground with utterly discrete legal concepts, such as presumptions of reasonableness and civil/criminal immunity.

When this is done by people without legal training or experience, such as Sabrina Fulton, one can of course accept it as an unknowing error. When it is persistently done by a Harvard Law Professor and a head of an (allegedly) leading association of State Prosecutors, one can only wonder at either their actual intent or their underlying intelligence.

Indeed, their misstatements of the law were so egregious that at one point Dr. Lott was obliged to read aloud from the actual Florida statute they had badly mischaracterized, to which they naturally had no substantive response. In that case they were claiming that even criminal aggressors could claim Stand Your Ground privilege under Florida law, a claim that the plain language of the statute read by Dr. Lott clearly destroys.

In any case, it is clear that their effort is intended to be a broad attack on all three fronts — likely with immunity being the true target, as it represents the largest pot of gold for their supporters — rather than any focused concern on Stand Your Ground, per se.

Finally, the bottom line is I expect this hearing, and any similar subsequent efforts, to be little more than political theater, with no substantive changes resulting to the law of self-defense.

I certainly hope Mr. Branca is correct that there will be no substantive changes and that this is nothing more than political theater. One explanation that I’ve heard for these hearings is that they are an effort by Sen. Durbin to keep alive a polarizing issue so as to promote higher turnout by African-Americans in the 2014 mid-term elections. Given that Durbin has shown time and again that he is a shameless opportunist, I wouldn’t put this past him.

UPDATE: Kurt Hofmann, the St. Louis Gun Rights Examiner, gives his take on Durbin and these hearings. I agree with Kurt that having Durbin chair any committee with the word “Constitution” in its name is “a grim joke.”