The standard to keep in mind regarding the confirmation of a Supreme Court Justice is found in 28 U.S.C. section 455(a): “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Let’s set aside for now the fact that as drafted, the statute seems to apply only to men (did Congress really not envision women judges?).  Comments have been made recently about Supreme Court nominee Brett Kavanaugh being “innocent until proven guilty.”  That’s actually the standard for a defendant in a criminal trial.  Because we as a society recognize how terrible it would be to send an innocent person to jail, possibly for many years, our legal system has established a standard that is willing to allow many who are guilty of crimes to go free, because we find that result preferable to ruining the life of an innocent person through wrongful conviction.  Therefore, where the evidence establishes, for example, an 85 percent likelihood that the defendant committed the crime, a finding of not guilty is warranted, as the remaining 15% constitutes “reasonable doubt.”  Of course, wrongful convictions still happen in practice, but nevertheless, the theory behind a presumption of innocence and a standard of “beyond a reasonable doubt” in criminal proceedings remains a noble one.

Not being allowed to serve as a Supreme Court justice is a far, far cry from being convicted of a crime and sent to prison.  Realize that there are only nine people in the whole country who are Supreme Court justices.  Many who have never been appointed to the Supreme Court have nevertheless gone on to lead happy, productive lives; some have amassed significant wealth, others have even held positions of trust and respect in society.

In choosing a Supreme Court justice, the ideal candidate is not someone who hasn’t been proven guilty beyond a reasonable doubt of some horrible act.  Rather, it’s someone whose impartiality is beyond questioning.  This is because in a democracy, faith in our judicial institutions is paramount.  Society will abide by judicial outcomes that they disagree with if they believe that the “wrong” result was made by impartial jurists who were genuinely trying to get it right.  Abiding by unpopular judicial decisions is the key to democracy.  It is what prevents angry mobs from taking justice into their own hands.  In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

A primary reason Republicans are so anxious to “plow through” (as Mitch McConnell, using the rapiest terminology imaginable, unfortunately phrased it) the nomination of Kavanaugh is because of how he might rule on abortion rights, an issue of great importance to the party’s base.  Nearly all of the Republican Senators seem to believe that as long as Kavanaugh has not been found guilty beyond a reasonable doubt of attempted rape, then he is fully qualified to serve as the deciding vote in taking away a right that has been constitutionally guaranteed to women for the past 45 years.

However, the three Republican Senators who at the last second requested an FBI investigation into the charges against Kavanaugh may have realized that their colleagues were not applying the correct standard.  Abortion rights involve a woman’s right to control her own body.  Yesterday, the country heard very detailed and articulate testimony from a highly credible and courageous witness.  What she described involved her being deprived of the right to control her own body, by a male who physically pinned her down, covered her mouth when she tried to scream for help, and tried to forcibly remove her clothing against her will.  Her violator then added insult to injury by laughing at her in a way that still haunts her to this day.  The credible witness stated that she was 100 percent certain that the male who violated her rights in this despicable way was Kavanaugh.

The evidence goes directly to the question of the candidate’s view of a woman’s right to control her own body.  The question that Senators should be considering is how much public trust there will be in the impartiality of a decision that involves such right in light of the past actions of the justice casting the potential deciding vote.

Senators who will nevertheless vote for Kavanaugh will say that in spite of the testimony, they cannot be sure of his guilt.  Or they may state that they are strongly convinced of his innocence.  Regardless, many people might reasonably question Kavanaugh’s impartiality based on the evidence they have heard.  (And remember, there have been two other women leveling similar accusations as well).  Even those who believe him innocent should at this point realize that in light of public perception, the appearance of impropriety should disqualify Kavanaugh from consideration.

Should those Senators deciding the issue ignore the above, we will all likely live with the consequences for decades to come.  Although it would not undo the damage, let us hope the public will respond quickly and decisively in voting the offenders out of office in November.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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Others agree with Jeffrey:

Here’s what the NY Times Editorial board had to say:

https://www.nytimes.com/2018/09/27/opinion/why-brett-kavanaugh-wasnt-believable.html?action=click&module=Opinion&pgtype=Homepage

Why Brett Kavanaugh Wasn’t Believable

And why Christine Blasey Ford was.

By The Editorial Board

The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.

Pool photo by Saul Loeb

What a study in contrasts: Where Christine Blasey Ford was calm and dignified, Brett Kavanaugh was volatile and belligerent; where she was eager to respond fully to every questioner, and kept worrying whether she was being “helpful” enough, he was openly contemptuous of several senators; most important, where she was credible and unshakable at every point in her testimony, he was at some points evasive, and some of his answers strained credulity.

Indeed, Dr. Blasey’s testimony before the Senate Judiciary Committee on Thursday was devastating.

With the eyes of the nation on her, Dr. Blasey recounted an appalling trauma. When she was 15 years old, she said, she was sexually assaulted by Judge Kavanaugh, then a 17-year-old student at a nearby high school and now President Trump’s nominee to the Supreme Court.

Her description of the attack, which she said occurred in a suburban Maryland home on a summer night in 1982, was gut-wrenchingly specific. She said Judge Kavanaugh and his friend, Mark Judge, both of whom she described as very drunk, locked her in a second-floor room of a private home. She said Kavanaugh jumped on top of her, groped her, tried to remove her clothes and put his hand over her mouth to keep her from screaming. She said she feared he might accidentally kill her.

“The uproarious laughter between the two and their having fun at my expense,” she said, was her strongest memory.

Judge Kavanaugh, when it was his turn, was not laughing. He was yelling. He spent more than half an hour raging against Senate Democrats and the “Left” for “totally and permanently” destroying his name, his career, his family, his life. He called his confirmation process a “national disgrace.”

“You may defeat me in the final vote, but you will never get me to quit,” Judge Kavanaugh said, sounding like someone who suddenly doubted his confirmation to the Supreme Court — an outcome that seemed preordained only a couple of weeks ago.

Pool photo by Erin Schaff

Judge Kavanaugh’s defiant fury might be understandable coming from someone who believes himself innocent of the grotesque charges he’s facing. Yet it was also evidence of an unsettling temperament in a man trying to persuade the nation of his judicial demeanor.

We share the sorrow of every sensible American who feels stricken at the partisan spectacle playing out in Washington. Judge Kavanaugh was doubtless — and lamentably — correct in predicting that after this confirmation fight, however it ends, the bitterness is only likely to grow. As he put it in his testimony, “What goes around, comes around,” in the partisan vortex that has been intensifying in Washington for decades now. His open contempt for the Democrats on the committee also raised further questions about his own fair-mindedness, and it served as a reminder of his decades as a Republican warrior who would take no prisoners.

Judge Kavanaugh’s biggest problem was not his demeanor but his credibility, which has been called in question on multiple issues for more than a decade, and has been an issue again throughout his Supreme Court confirmation process.

On Thursday, he gave misleading answers to questions about seemingly small matters — sharpening doubts about his honesty about far more significant ones. He gave coy answers when pressed about what was clearly a sexual innuendo in his high-school yearbook. He insisted over and over that others Dr. Blasey named as attending the gathering had “said it didn’t happen,” when in fact at least two of them have said only that they don’t recall it — and one of them told a reporter that she believes Dr. Blasey.

Judge Kavanaugh clumsily dodged a number of times when senators asked him about his drinking habits. When Senator Amy Klobuchar gently pressed him about whether he’d ever blacked out from drinking, he at first wouldn’t reply directly. “I don’t know, have you?” he replied — a condescending and dismissive response to the legitimate exercise of a senator’s duty of advise and consent. (Later, after a break in the hearing, he apologized.)

Judge Kavanaugh gave categorical denials a number of times, including, at other points, that he’d ever blacked out from too much drinking. Given numerous reports now of his heavy drinking in college, such a blanket denial is hard to believe.

In contrast, Dr. Blasey bolstered her credibility not only by describing in harrowing detail what she did remember, but by being honest about what she didn’t — like the exact date of the gathering, or the address of the house where it occurred. As she pointed out, the precise details of a trauma get burned into the brain and stay there long after less relevant details fade away.

She was also honest about her ambivalence in coming forward. “I am terrified,” she told the senators in her opening remarks. And then there’s the fact that she gains nothing by coming forward. She is in hiding now with her family in the face of death threats.

Perhaps the most maddening part of Thursday’s hearing was the cowardice of the committee’s 11 Republicans, all of them men, and none of them, apparently, capable of asking Dr. Blasey a single question. They farmed that task out to a sex-crimes prosecutor named Rachel Mitchell, who tried unsuccessfully in five-minute increments to poke holes in Dr. Blasey’s story.

Eventually, as Judge Kavanaugh testified, the Republican senators ventured out from behind their shield. Doubtless seeking to ape President’s Trump style and win his approval, they began competing with each other to make the most ferocious denunciation of their Democratic colleagues and the most heartfelt declaration of sympathy for Judge Kavanaugh, in a show of empathy far keener than they managed to muster for Dr. Blasey.

Pressed over and over by Democratic senators, Judge Kavanaugh never could come up with a clear answer for why he wouldn’t also want a fair, neutral F.B.I. investigation into the allegations against him — the kind of investigation the agency routinely performs, and that Dr. Blasey has called for. At one point, though, he acknowledged that it was common sense to put some questions to other potential witnesses besides him.

When Senator Patrick Leahy asked whether the judge was the inspiration for a hard-drinking character named Bart O’Kavanaugh in a memoir about teenage alcoholism by Mr. Judge, Judge Kavanaugh replied, “You’d have to ask him.”

Asking Mr. Judge would be a great idea. Unfortunately he’s hiding out in a Delaware beach town and Senate Republicans are refusing to subpoena him.

Why? Mr. Judge is the key witness in Dr. Blasey’s allegation. He has said he has no recollection of the party or of any assault. But he hasn’t faced live questioning to test his own memory and credibility. And Dr. Blasey is far from alone in describing Judge Kavanaugh and Mr. Judge as heavy drinkers; several of Judge Kavanaugh’s college classmates have said the same.

None of these people have been called to testify before the Senate. President Trump has refused to call on the F.B.I. to look into the multiple allegations that have been leveled against the judge in the past two weeks. Instead the Republican majority on the committee has scheduled a vote for Friday morning.

There is no reason the committee needs to hold this vote before the F.B.I. can do a proper investigation, and Mr. Judge and possibly other witnesses can be called to testify under oath. The Senate, and the American people, need to know the truth, or as close an approximation as possible, before deciding whether Judge Kavanaugh should get a lifetime seat on the nation’s highest court. If the committee will not make a more serious effort, the only choice for senators seeking to protect the credibility of the Supreme Court will be to vote no.

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Emily Bazelon of the NY Times Sunday Magazine wasn’t convinced by BKavs either:

https://www.nytimes.com/2018/09/28/opinion/kavanaugh-blasey-ford-investigation.html?action=click&module=Opinion&pgtype=Homepage

The Senate’s Failure to Seek the Truth

It is impossible to justify the lack of a neutral investigation into the allegations against Brett Kavanaugh.

By Emily Bazelon

Ms. Bazelon is a staff writer at The New York Times Magazine.

Brendan Smialowski/Agence France-Presse — Getty Images

Twice as a reporter, I’ve interviewed women who have accused men of sexual assault and the men they accused. In both cases, the women looked me in the eye and told me about how they’d been raped, and then the men looked me in the eye and told me they’d never raped anyone. All four people spoke with force and emotion. In the moment, I wanted to believe each one. It’s uncomfortable to imagine that someone who seems wholly sincere is not. It’s confusing — it seems unfeeling — to turn away from someone who makes a vehement claim of truth.

If you watched Thursday’s hearing, in particular Christine Blasey Ford’s opening statement and Brett Kavanaugh’s, maybe you know what I mean. So then what? As a reporter, I looked for corroborating evidence as a means of assessing each person’s veracity. What else could I find out, and how did their accounts stack up against that? This is how investigators do their work. They find out as much as they can about the surrounding circumstances. Then it’s up to judges to weigh the facts and decide which account is most credible.

Judge Kavanaugh didn’t sound as if he was thinking like a judge. His partisan attack on Democrats wasn’t judicial, in any sense of the word. His approach to evidence wasn’t either.

The difficulty for holding Judge Kavanaugh accountable for what Dr. Blasey says was her assault is the lack of a certain kind of corroboration for her account. The other people she has named who were at the small gathering where she says the assault took place don’t remember such a gathering. Two of them are Judge Kavanaugh’s high school friends. One of them is Dr. Blasey’s friend.

But there’s no reason any of them would have remembered such a gathering. She says it was a spur-of-the-moment get-together, after swimming and before a party to come. And it took place 36 years ago. The gathering she describes is also consistent with one of Judge Kavanaugh’s calendar entries about drinking with his friends.

We also have more than Dr. Blasey’s word. Years ago, she talked about this assault, and named Judge Kavanaugh, with her husband and her therapist, and at a later time, she told a few close friends. They back her up on this. One memorable detail from her testimony has the ring of truth, in its specificity: Her assault came up in couples therapy with her husband because the traumatic memory triggered anxiety and claustrophobia, and that made her insist on adding a second front door to her house, to his understandable confusion. This is not the kind of fact a person makes up.

Dr. Blasey was firm about closing a door that would allow us to reconcile her accusation and Judge Kavanaugh’s denial. She is not mixed up about the identity of her assailant, she said. She is “100 percent certain” it was Judge Kavanaugh. The comfortable path for the judge’s supporters — believe she was assaulted, disbelieve he committed the assault — is gone. Her certainty was a pillar of the testimony she put the full weight of herself behind — her professional identity, her character, the careful consideration and precision about facts that was evident as she spoke.

Judge Kavanaugh refused to open another door that would allow the public, and the Senate, to reconcile these accounts of accusation and denial. He ruled out the possibility that he could not remember assaulting Dr. Blasey because he blacked out or was otherwise incapacitated by drinking. He was just as adamant about categorically denying the other sexual misconduct he has been accused of by two other women.

Judge Kavanaugh also didn’t much back off his denials of being a hard drinker or an aggressive drunk. This is his big weakness, stacked against other facts that have been gathered. Several classmates from his college days at Yale paint an entirely different picture of him as a drinker than the innocent one he offered of being a person who “likes beer.” So do his own yearbook entries and speeches. If you’re a judge who believes in strictly reading a text for its plain meaning, as Judge Kavanaugh says he is, his dismissals and wispy explanations aren’t persuasive.

If you’re thinking like a judge aiming to discover the truth, it’s also hard (impossible?) to justify the lack of a neutral investigation and the absence of other witnesses, beginning with Mark Judge, the friend of Judge Kavanaugh’s, whom Dr. Blasey says saw and participated in the assault, but not ending with him.

The task of a judge or a Supreme Court justice is to seek the truth. The most important qualities for the job are probity and veracity. Nobody was on trial at the Senate Judiciary Committee. But only one person — Judge Kavanaugh — was asking to be elevated to the highest court in the land.

Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion).

Emily Bazelon is a staff writer at the magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also a best-selling author and a co-host of the Slate Political Gabfest, a popular podcast.

@emilybazelon • Facebook

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Meanwhile, over at Slate, Will Saletan wasn’t buying BKavs performance either:

https://slate.com/news-and-politics/2018/09/kavanaugh-lied-senate-judiciary-committee.html

POLITICS

Kavanaugh Lied to the Judiciary Committee—Repeatedly

Thursday’s hearing didn’t prove whether Kavanaugh assaulted Ford. But we do know the Supreme Court nominee wasn’t honest in his testimony.

By WILLIAM SALETAN

Brett Kavanaugh frowns during his testimony.
Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Thursday.
Jim Bourg/AFP/Getty Images

On Thursday, after listening to testimony from Supreme Court nominee Brett Kavanaugh and his accuser, Christine Blasey Ford, several Republican senators said they would vote to confirm the nominee because it’s impossible to determine which witness—Ford or Kavanaugh—is telling the truth. Actually, it’s easy. We don’t know for certain whether Kavanaugh sexually assaulted Ford. But we do know that Kavanaugh lied repeatedly in his testimony to the Senate Judiciary Committee. Here are some of his lies.

1. “It’s been investigated.” The White House has ignored multiple requests from Democratic senators to authorize FBI interviews with the alleged witnesses in the case. In particular, there has been no FBI or Judiciary Committee interview with Mark Judge, Kavanaugh’s accused accomplice in the alleged assault. In fact, Judge has fled to a hideout in Delaware to avoid being called to testify.

During the hearing, several Democratic senators pleaded with Kavanaugh to call for FBI interviews so that the truth could be resolved. Kavanaugh refused. When Sen. Chris Coons pointed out that the FBI had needed only a few days to complete interviews in the Clarence Thomas–Anita Hill case, Kavanaugh said even that was too much, because the Judiciary Committee had already examined his case. “It’s been investigated,” he told Coons.

No honest judge would say that. None of the alleged witnesses, other than Ford and Kavanaugh, has been interviewed. Instead, the alleged witnesses have issued short statementsof nonrecollection and have asked not to testify. The committee’s Republican majority, eager to brush the case aside, has accepted these statements and has refused to ask further questions. In his testimony, Kavanaugh falsely claimed that FBI interviews would add nothing. Agents would “just go and do what you’re doing,” he told the senators.

Kavanaugh claimed that a vague statement of nonrecollection from Judge’s lawyer was sufficient “testimony.” He dismissed calls for Judge to appear before the committee, arguing that his own testimony was adequate. But Kavanaugh also mocked the committee’s Democrats, who lack the power of subpoena, by telling them to go talk to Judge. When Sen. Patrick Leahy asked whether Bart O’Kavanaugh, a drunken character in Judge’s book, was meant to represent Brett Kavanaugh, the nominee passed the buck to his testimony-evading friend: “You’d have to ask him.”

2. “All four witnesses say it didn’t happen.” Each time senators pleaded for an FBI review or a more thorough investigation by the committee, Kavanaugh replied that it wasn’t necessary, since all the people Ford claimed had been at the gathering where the alleged assault occurred had rejected her story. Eight times, Kavanaugh claimed that the witnesses “said it didn’t happen.” Three times, he said the witnesses “refuted” Ford’s story. Four times, Kavanaugh claimed that “Dr. Ford’s longtime friend,” Leland Keyser, had affirmed that the gathering never occurred.

That’s a lie. Keyser has stated that she doesn’t recall the gathering—she was never told about the attack, and she was supposedly downstairs while it allegedly occurred upstairs—but that she believes Ford’s story. That isn’t corroboration, but it isn’t refutation or denial, either. During the hearing, Sen. Cory Booker pointed this out to Kavanaugh, reminding him that in an interview with the Washington Post, Keyser “said she believes Dr. Ford.” Kavanaugh ignored Booker’s correction. Ninety seconds later, the nominee defiantly repeated: “The witnesses who were there say it didn’t happen.”

3. “I know exactly what happened that night.”Kavanaugh made several false or widely contradicted statements about his use of alcohol. This is significant because Judge has admitted to drunken blackouts, which raises the possibility that Judge and Kavanaugh don’t remember what they did to Ford. During the hearing, Sen. Richard Blumenthal asked about Kavanaugh’s participation in a night of drunken revelry at Yale Law School. Kavanaugh assured Blumenthal, “I know exactly what happened the whole night.” Later, Booker asked Kavanaugh whether he had “never had gaps in memories, never had any losses whatsoever, never had foggy recollection about what happened” while drinking. Kavanaugh affirmed that he had never experienced such symptoms: “That’s what I said.”

These statements contradict reports from several people who knew Kavanaugh. Liz Swisher, a friend from Yale, says she saw Kavanaugh drink a lot, stumble, and slur his words. “It’s not credible for him to say that he has had no memory lapses in the nights that he drank to excess,” she told the Washington Post. And in a speech four years ago, Kavanaugh described himself and a former classmate “piecing things together” to figure out that they’d “had more than a few beers” before an alcohol-soaked banquet at Yale Law School.

4. “I’m in Colorado.” As evidence that the charges against him were ludicrous, Kavanaugh told the committee that he had been falsely accused of committing an assault more than 1,500 miles away. He claimed that according to his accusers, “I’m in Colorado, you know, I’m sighted all over the place.” But a transcript of Kavanaugh’s Sept. 25 interview with Judiciary Committee staffers shows no claim of an offense in Colorado. The transcript says that according to a woman from Colorado, “at least four witnesses” saw Kavanaugh shove a woman “up against the wall very aggressively and sexually” in 1998. But Kavanaugh was specifically told during the interview that the scene of the alleged incident was in D.C., where he was living at the time.

Kavanaugh also told other whoppers. He claimed that his beer consumption in high school was legal because the drinking age in Maryland was 18. In reality, by the time he was 18, the drinking age was 21. He claimed that his high school yearbook reference to the “Beach Week Ralph Club” referred in part to his difficulty in holding down “spicy food.” He claimed that the entry’s jokes about two sporting events he and his high school buddies had watched—“Who won that game, anyway?”—had nothing to do with booze. And he defended his refusal to take a polygraph test on the grounds that such tests aren’t admissible in federal courts—neglecting to mention that he had endorsed their use in hiring and law enforcement.

Maybe Kavanaugh is an honest man in other contexts. Maybe he’s a good husband, a loving dad, and an inspiring coach. And maybe there’s no way to be certain that he assaulted Ford. But one thing is certain: He lied repeatedly to the Judiciary Committee on Thursday. Some of his lies, about the testimony of witnesses and the integrity of investigations, go to the heart of our system of justice. Any senator who votes to put this man on the Supreme Court is saying that such lies don’t matter.

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Also at Slate, Yascha Mounk predicts lasting damage to our Republic if BKavs is confirmed:
 
THE GOOD FIGHT

The Kavanaugh Stakes Just Got Higher

To confirm him now would be dangerous to the survival of our democratic institutions.

By YASCHA MOUNK

The Supreme Court and Brett Kavanaugh getting sworn in to testify.
Photo illustration by Slate. Photos by Drew Angerer/Getty Images and Andrew Harnik-Pool/Getty Images.

At this moment of feverishly intense partisanship, it takes a great deal of courage to tiptoe away from your own tribe. Sen. Jeff Flake has not yet announced that he is willing to part for good; in the end, he may yet betray his professed principles and cast his vote to confirm Brett Kavanaugh. And yet, we should not underestimate how much strength it took for him to demand an investigation into Christine Blasey Ford’s serious allegations of sexual assault and delay the judge’s confirmation by at least a week. For now, he has proved to be one of the few people in the Senate—and perhaps one of the few in the whole country—who have insisted on taking Ford’s allegations seriously even though he actually shares most of Kavanaugh’s judicial views.

For the sake of our country, all of us should now hope that the FBI manages to uncover conclusive evidence that either supports or dispels Ford’s accusations. Unfortunately, that seems unlikely. So the big risk we now face is that the same hell we have lived through for the past 48 hours will be repeated in even more farcical form next week. And that is why it’s very important to use this time to reflect seriously on how judicious people—and perhaps especially senators like Flake who profess to be conscientious conservatives—should vote if they have not made up their mind about the allegations.

It is painfully obvious that most Republican senators will vote to confirm Kavanaugh if the allegations against him are anything short of iron-clad; indeed, one shocking poll suggests that a majority of Republicans voters, and nearly half of evangelicals, would support his confirmation even if they did believe that he is guilty. It is also obvious that most Democrats will vote against his confirmation even in the unlikely case that the FBI should somehow manage to disprove Ford’s allegations; indeed, Kavanaugh’s extreme views on executive power provide a strong reason for any defender of liberal democracy to oppose his nomination. And yet, I think that one very important consideration has largely been overlooked.

Let us assume, for the sake of argument, that Kavanaugh is an innocent man. If that’s the case, the raw anger he displayed during Thursday’s confirmation hearing is certainly understandable. While we might wish for a public figure to keep his poise even when his reputation is being impugned, it is perfectly human to lose your countenance under such circumstances.

But even under that charitable interpretation, Kavanaugh’s performance in front of the Senate Judiciary Committee makes him eminently unfit to sit on the highest court of the land.

A justice on the Supreme Court has to rule on a whole host of issues that are of huge partisan significance: If he is confirmed, he will have to settle substantive questions of public policy—from abortion rights to the health care mandate—on which Democrats and Republicans have hugely differing preferences. Just as importantly, he will also help to set the parameters that are supposed to ensure that Democrats and Republicans can appeal for the votes of their fellow citizens on fair terms.

But how can somebody who has accused Democrats of a “calculated and orchestrated political hit” be seen as impartial when he rules on a gerrymandering case that could deliver a huge advantage to Republicans? How can somebody who describes serious allegations of sexual assault as “revenge on behalf of the Clintons” be expected to give both sides a fair hearing if the outcome of a presidential election should once again be litigated in front of the Supreme Court? And how can somebody who denounces the “frenzy on the left” to derail his nomination be trusted to ensure that the left’s most vocal enemy, Donald Trump, does not overstep the bounds of his constitutional authority?

Because of Mitch McConnell’s refusal to hold hearings on the confirmation of Merrick Garland during the last year of Barack Obama’s presidency, the current composition of the Supreme Court is already tainted. Now, the confirmation of as nakedly partisan a jurist as Kavanaugh would go a long way toward destroying whatever remains of the Supreme Court’s legitimacy. And this would not only tank the trust Americans have in the last branch of government that has, according to polls, consistently been more popular than secondhand car salesmen; it also significantly raises the likelihood that Democrats will engage in yet another round of tit for tat.

Precisely because partisans need to be able to trust that courts can enforce the rules for fair political competition between them and their adversaries, attempts by a political party to change the ideological makeup of the judiciary are extremely dangerous to the survival of democratic institutions. That’s why (direct or indirect) court-packing schemes have been key elements of the authoritarian takeovers in Russia, Turkey, and Venezuela. And it’s also why the current governments in Poland and Hungary are playing constitutional hardball to ensure that judges they appoint command a majority on the most important courts in their respective countries.

There can therefore be little doubt that any attempt by Democrats to pack the Supreme Court, for example, by expanding its size, would be another step in a tit-for-tat spiral at whose end autocracy awaits. And yet, recent events will make it very hard for those voices within the Democratic Party that recognize this danger to prevail. If one side is so willing to abuse precedent and decency to, as Kavanaugh might put it, screw the libs, it becomes very difficult for the other side not to reciprocate in kind.

This is why Kavanaugh’s confirmation would not just be a disaster in itself; it would also be a strong reason to become even more pessimistic about the future of American politics. The GOP and Trump are now more fully aligned than ever. Our country’s partisan divide is deeper than it has been in living memory. The mutual hatred and incomprehension is more acute than it has been in decades. If Kavanaugh is confirmed, it’s very, very difficult to envisage what path could possibly lead us out of this nightmare.

Jeff Flake has acted with much more courage and decency than most liberals care to admit. But the responsibility that now rests on his—and Sen. Lisa Murkowski’s and Sen. Susan Collins’—shoulders is even greater than he might realize.

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Dahlia Lithwick @ Slate is also no BKavs fan:
https://slate.com/news-and-politics/2018/09/christine-blasey-ford-hearing-fear-a-justice-brett-kavanaugh.html

That being said, I thought that his emotional partisan attack on Democratic Senators, his overt rudeness to Sen. Amy Klobuchar, and his unsupported “conspiracy theory” re the Clintons showed that he is exactly what his critics have been saying all along: an injudicious and disingenuous partisan.

No matter what really happened with Ford, he is “damaged goods” who can’t credibly serve on the Supremes. A decent person would withdraw at this point for the good of the country.

Certainly, Trump can find a reactionary GOP female judge with no personal baggage to carry the flag. He was actually pretty stupid to nominate BKavs in the first place rather than a female vetted by the Heritage Foundation whom the Dems couldn’t have touched.

I assume that Senator L. Graham is auditioning for Gonzo’s job after the midterms. He seems to forgotten what he and his GOP buddies did to Judge Merrick Garland — a very decent person and good jurist who never even got a chance to be heard at all. The GOP just decided that “advice and consent” meant “stonewall if you don’t like the President.” And as a moderate and polite “center left” jurist, Judge Garland certainly would have been a more appropriate pick for the Supremes than BKavs! But, power is power, and the GOP has it right now — the Dems don’t.

Nothing is likely to stop Judge’s Kavanaugh’s elevation at this point. But, as Jeffrey suggests, getting to the ballot box could make BKavs the last such appointment for some time.

Best,

PWS
09-30-18