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Monday, October 1, 2018


Well, I predicted it [as did everyone else.]  No matter what restrictions are placed on the FBI investigation, people will come out of the woodwork with new stories about Kavanaugh.  “But they all concern his youth and college days,” it is said.

Wait for it.  This is only Monday.


Anonymous said...

Apparently some of these go back a while. We are only hearing of them now. More interesting would be to hear from recent clerks and colleagues from his time on the DC bench.

MS said...

My prediction in a comment relating to the Speculation posting that Trump will pull Kavanaugh’s nomination after the FBI has completed its investigation may have been dealt a lethal blow. I was shocked to read today that Rachel Mitchell, the prosecutor who was retained by the Republicans, has submitted a five-page report to the Judiciary Committee in which she offers her conclusion that a “reasonable” prosecutor reviewing the testimony and evidence would not bring a criminal charge against Kavanaugh. She goes further and claims the evidence would not even satisfy the “by a preponderance of the evidence” standard for a civil action. (See

I’ve read the report and it is full of more holes than I can address here. She cites in support of her conclusion inconsistencies and gaps she claims undermine Ford’s testimony, e.g., she repeats the assertion the witnesses Ford identified either do not corroborate her story or they refute it. As I pointed out in prior comments, the three witnesses who provided statements to the Committee (Judge, Smyth, Keyser) only stated they have no memory of the party. This does not corroborate Ford’s allegation, but it is not a refutation. A refutation is a statement by an eye-witness who claims to remember the event referred to and denies it occurred as the accuser describes it. Mitchell is a prosecutor and must know this. Why is she being disingenuous?

Mitchell claims Ford failed to turn over her therapist’s notes from a 2013 session to the Committee, then states Kavanaugh’s name was not mentioned in the therapist’s 2013 notes. She claims Ford was inconsistent because she testified she told her husband she had been the victim of a “sexual assault,” but told the Washington Post she had told her husband she was a victim of “physical abuse.” Since all sexual assaults constitute physical abuse, why would the difference in terminology matter? She faults Ford for being unable to remember how she got to the party or who drove her home, since, in the absence of cell phones, she would have had to ask to use a phone to obtain a ride. Why would she be expected to remember this after a 36-year hiatus? I dont’t remember how I got to specific places 36 years ago.

There are many more flaws in her report which I do not have room to address. Nowhere in her report does she discuss Ford’s demeanor, whether she seemed sincere and nonevasive, all points that any competent prosecutor would make in a closing argument. A competent prosecutor would also point out slight inconsistencies, like a reference to an event as a sexual assault vs. physical abuse, and lapses of memory about minor details after 36 yrs., are not significant and in fact demonstrate an absence of guile. A person intending to deceive has a pre-formulated story w/o gaps. Moreover, nowhere does she discuss Kavanaugh’s testimony, his candor or consistency. (This may have been because her examination of Kavanaugh was pretermitted by Sen. Graham’s tantrum.)

Initially when I learned the Republicans had retained a prosecutor to do the questioning, I assumed the individual would be a partisan hack. As I watched Mitchell conduct her questioning, I thought she was doing a professional, unbiased examination. I had a little concern towards the end when she went into issues about how Ford was paying for her legal fees, security, etc., suggesting she was a Democratic tool. Having read her report, I realize now I was wrong – Mitchell is undoubtedly a partisan hack. See

The report may be enough to give Collins and Murkowski enough cover to vote to confirm Kavanaugh. It will all depend on whether Ramirez’s statement to the FBI, which will contradict Kavanaugh’s testimony, will suffice to raise doubts in their minds and give them pause. Otherwise, my prediction that Trump will pull the nomination may prove erroneous and I will have to eat my words.

Jerry Brown said...

Nathan J Robinson takes Kavanaugh's testimony apart. I found it very convincing.

MS said...

It appears that J. Kavanaugh also lied about something else at the hearing. He testified that the first time he learned about Ms. Ramirez’s allegation was when he read the New Yorker story. This is not true. NBC has obtained copies of text messages indicating that Kavanaugh was aware of her allegations before the New Yorker story was published and was texting friends from Yale about providing information to rebut therm. See

MS said...

Sen. McConnell is indicating he is going to schedule a floor vote on J. Kavanaugh’s confirmation on Friday, regardless whether the FBI has completed its investigation.

Thinking about this and the current political atmosphere, I was reminded of the facts behind a famous S. Ct. case, one which most Americans have heard of, and many know of its fundamental ruling, but few know its factual background. The case? Marbury v. Madison, 1803.

The background facts are these. John Adams had lost the 1800 presidential election to Thomas Jefferson. Two days before Adams’ presidency was to end in March, 1802, Adams, in an effort to frustrate the policies of Jefferson and the incoming Democrat-Republicans, appointed several new circuit judge and justice of the peace positions to men who had supported his re-election and were adherents of the Federalist Party. The U.S. Senate expeditiously affirmed the appointments. However, by the time Jefferson was inaugurated 2 days later, several of the judicial commissions had not been delivered to the appointees. Among those was the that of William Marbury, a Maryland businessman and supporter of Adams and the Federalists. When Jefferson learned some of the commissions had not been delivered, he concluded that, having not been delivered before his inauguration, they were void. He accordingly directed James Madison, his Secretary of State, to order that they not be delivered.

After Madison repeatedly refused to allow Marbury’s commission to be delivered, Marbury filed an action directly in the S. Ct., seeking a writ of mandamus ordering Madison to have his commission delivered. The Chief Justice was John Marshall, Jefferson’s cousin and a Federalist. They did no get along. The Court scheduled the case to be heard during the 1803 term. In the meantime, the Dem.-Repub.’s passed the Judiciary Act of 1802, repealing the Midnight Judges Act (by virtue of which Adams’ appointments were ratified) and canceled the 1802 term of the S. Ct. They also began impeachment proceedings against a federal judge, John Pickering, a Federalist supporter. The Federalists condemned the action as an effort to impinge on the independence of the judiciary. (The more things change, the more they stay the same.)

A 4-day trial was conducted in the S. Ct. Writing for a 5-1 majority (2 Justices did not participate), Justice Marshall issued the most significant decision in S. Ct. history. In a deft and brilliant exercise in legal analysis, Marshall held as follows: Madison was legally bound to deliver the commission and Marbury had the right to sue Madison. However, he also held the Court could not issue the requested writ of mandamus to order Madison to deliver the commission. Why? Because the Judiciary Act 0f 1789 authorizing the Court to issue writs of mandamus had unconstitutionally expanded the original jurisdiction of the S. Ct. (original jurisdiction identifies in which courts a legal cause of action may initially be commenced) to include the S. Ct. Since this aspect of the statute was ruled unconstitutional, the Court did not have jurisdiction to hear the case. Madison had violated the law, but the violation could not be challenged in the S. Ct. in the first instance. Walla! In a single decision Justice Marshall disposed of the claim and dramatically expanded the authority of the S. Ct., establishing the prerogative of the Court to evaluate and overturn the constitutionality of Congressional legislation and the legality of actions of the Executive. Justice Marshall stated, "[I]t is emphatically the province and duty of the judicial department to say what the law is.” Among the many important progeny of that decision is U.S. v. Nixon (1974), ruling that the President is not above the law. (Note: Marbury never got the commission – he dropped the case.)

So, the antics going on in Congress today re judicial appointments are nothing new.

Finally, breaking news – the GOP has commissioned a remake of a Country-Western standard by Tammy Wynette;; the refrain is “Stand by Judge Kavanaugh, after all, he’s just a man.”