September 20, 2019

New Allegations Energize Dems: Kavanaugh Revisited with a Vengeance.

by Hal Gershowitz

Comments Below

Indeed, “Vengeance” seems to be the operative word surrounding Democratic reaction to new charges leveled by two New York Times journalists who have authored a new book about Supreme Court Justice Brett Kavanaugh. We’re not judging whether or not Kavanaugh did or didn’t assault an unnamed student, as alleged, while a student himself at Yale. We’re certainly in no position to make such a judgment. Suffice to say, however, that the female student, who is the alleged victim, has no recollection of the alleged incident and has refused to be interviewed about the allegation. She has accused Kavanaugh of nothing.

The allegation mirrors the accusation made by former Yale student Deborah Ramirez during Justice Kavanaugh’s confirmation hearings a year ago at which Christine Blasey Ford leveled assault charges against Kavanaugh dating back to his days at Georgetown Prep High School in Bethesda Maryland. Suffice to say, Justice Kavanaugh vigorously denied the allegations and he was confirmed along party lines. No one has alleged any such misconduct by Justice Kavanaugh in the thirty-six years since he graduated law school.

Our point is not to defend Justice Kavanaugh. Frankly, we wish President Trump hadn’t nominated him in the first place. His equivocation about whether he would respect repeated established judicial precedent recognizing a woman’s right to terminate a pregnancy during the first trimester casts a dark shadow over Row v. Wade.  We also found his dissenting opinion to be troubling in another case in which a lower court found that a pregnant undocumented teenage immigrant, who had fled abusive parents and was being detained by the government, was entitled to elect to have an abortion. The Trump Administration’s obstructive tactics risked forcing a delay that would have caused the pregnancy to run past the first trimester, which many observers believed was the government’s intention. The appellate court ultimately found for the pregnant teenage immigrant, in spite of Judge Kavanaugh’s position that the court, instead, should have ordered that a sponsor should first be found for the teenager, which was viewed by many as a further delaying tactic.

Our purpose is not to relitigate the Kavanaugh appointment, but rather to express our concern over the new groundswell of impeachment rhetoric emanating from prominent Democrats in Congress, including various presidential aspirants. Going after Justice Kavanaugh, yet again, over an alleged incident of which the alleged victim has no recollection and no interest in pursuing has, in our view, the likelihood of backfiring badly.  

In their zeal to relitigate the Kavanaugh confirmation through impeachment, a process that cannot succeed, the Democrats risk creating sympathy for Kavanaugh and for the President who nominated him. Our concern is centered on the cries for Kavanaugh’s impeachment based on an assault which allegedly took place nearly forty years ago, of which the alleged victim has no recollection and no interest in pursuing.

Kavanaugh’s supporters claim that he is not the ultra-conservative originalist that many, including us, fear he is. They point to the high correlation between his voting record in United States Court of Appeals for the District of Columbia and Clinton appointee Merrick Garland’s voting record. We think that’s a spurious argument, given that they are both appellate judges.

As the non-partisan Congressional Research Service has observed, the difficulty in attempting to predict how a nominee will approach the job of being a Justice remains even when the nominee has had a lengthy federal judicial career prior to nomination. Federal judges on the courts of appeals are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law. As a result, the courts of appeals consider “many routine cases in which the legal rules are uncontroverted.” Because lower court judges are often bound by Supreme Court and circuit precedent, the vast majority of federal appellate opinions are, in fact, unanimous.

So, in our opinion, it is still too early to tell what kind of justice Brett Kavanaugh will be. But huge cases are headed to the Supreme Court involving issues, such as a woman’s right to choose, that still fester in the body politic as they have for decades. To date, the courts have been resolute in upholding a woman’s right to choose during the first trimester of a pregnancy. We have no idea how Justice Kavanaugh will vote on these issues. We do harbor considerable concern, however, that zealous Democrats who are pursuing impeachment based on new allegations that no victim is alleging will almost certainly fail. Antagonizing a supreme court justice with a weak case for impeachment seems, to us, to have the potential of causing much more harm than good. As they teach first-year medical students, “above all, do no harm.”

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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9 responses to “New Allegations Energize Dems: Kavanaugh Revisited with a Vengeance.”

  1. ELIEZAR BENJAMEIN. aka Leonard Sherman says:

    It is a shame that Democratic senators have turned my country into a circus for their own personal reelection, and the security of a well-paying job and all that that requires of them is to spew hatred of the president and divide my country, I am ashamed.

  2. Chris says:

    I totally agree with all your words, Hal. Thank you again for your great work, and always providing us a well-researched weekly education. Leonard Sherman, I also ditto your reply. The hatred tactics toward the president every time he takes a breath continues to escalate and the “circus” is gathering more young generation innocent people who are learning no other way to act. Shameful is the operative word.

  3. Perry Green says:

    The desperation of continuing allegations is reminiscent of
    the Dreyfus affair. Congress under the Democrats are so
    intent on impeachment of Kavanaugh and Trump because of their stands on issues.
    Failing to impeach Trump on conspiracy theories, they feel if
    they might find his appointments unworthy it may give them
    something to run on in 2020.
    Having watched the hearing on Lewandowski leaves me saddened just viewing the Congress and it’s bias. Only t he
    media has a lower favor ability rating than the Congress.

  4. Roberta Conner says:

    Today’s essay paints you solidly as unpaid (presumably) advisors and consultants to the flailing democrat party. Admonishing democrats by evoking the oath of Hippocrates says everything about your political concerns – possible harm to the democrat party – but no concern about harm to our country.

    Brett Kavanaugh was duly appointed and confirmed to the Supreme Court despite an unprecedented onslaught of egregious and false claims by a rabid group of leftists who feared his presence on the court would lead to the inevitable “consequences” of the last presidential election.

    Where were these wild and unfounded accusations when Kavanaugh was appointed to the US Court of Appeals? No one brought up such ludicrous charges then – even though they were a decade fresher.

    I have always valued the intellectual insights and wisdom of your essays but such glaring, heavy-handed partisanship does nothing to enhance such insights or wisdom.

    • Reply to Ms. Conner: “Today’s essay paints you solidly as unpaid (presumably) advisors and consultants to the flailing Democrat party.” Well, where to begin? Not only are we not unpaid (“presumably”) advisors and consultants to the flailing Democrat party we’re not even democrats. This essay represents our view regarding the political miscalculation we believe the Democrats are making in pursuing possible impeachment of Justice Kavanaugh. Nothing more, nothing less. That Ms. Conner believes the essay reflects “heavy-handed partisanship” is both perplexing and illuminating about the state of political discourse in our country today.

  5. Prover Stephen E. says:

    My goodness,Hal, the majority of your readers seem to be firmly entrenched well on the right side of the political spectrum and clearly on the wrong side of reasonable discourse. This essay was another well thought out and well researched provocative point of view. I agree Kavanaugh was a poor choice. The current statements promoting impeachment seem to be crassly political and can at best fall upon indifferent ears or, at worst, backfire just as you predict.

  6. James Fisher says:

    In response to Mr. Prover, writers of provocative points of view should celebrate when their readers are indeed provoked to respond with their own individual perceptions of what is “reasonable discourse.”

    God bless diversity of dialogue.

  7. Mike Regan says:

    A couple of points to consider.

    First, I appreciate the fact that we live in a country where we can have a dialogue about what is happening.

    Second, I find it interesting that in this essay, a large part of the dialogue centers around the issue you have with respect to how Jusitce Kavanaugh may rule on cases involving abortion rights. To suggest that this is the litmus test by which a Justice will be evaluated is, in my opinion, a shallow argument. There are many other critical issues which will come before the Supreme Court.

    Third, in 1993, I had the privilege of joining a small group of individuals who met with Justice Thomas in his chambers. I will never forget the answer he gave to my question when I asked him what he had taken away from his confirmation hearings. He said “I grieve for America. “ He noted that he was raised by his grandparents and that these grandparents taught him that there was a limit to the depths that people would sink in order to get what they wanted. He then went on to state that what he learned from his confirmation hearings that were no limits to the depths that people would sink to derail his confirmation.

    As I watched the Kavanuagh hearings, Justice Thomas’ comments came to mind. For the Democrats there was no presumption of innocence, and the mere fact of these allegations was all that that mattered. How sad! And the hit job from the NYT, which even they had to admit overlooked some key facts, proved that there were/are no limits to the depths people would sink to discredit/defame an individual and derail his confirmation.

    One final point. Great nations can fail. In the early 1900’s Argentina was a wealthy nation. In 1980, Rhodesia, arguably the breadbasket of Southern Africa, became Zimbabwe and Robert Mugabe proceeded to destroy that country. Today these countries and others like Venezuela are a shadow of what they once were. As I listen to the current Democratic candidates, or as I experience the demise of what was once the great State of Illinois, I can’t help but wonder whether your essays ignore critically important issues which will affect the future of the United States

  8. Response to Mr. Regan: While Roe v Wade is indeed one of the major decisions of our time, our greater point was whether Justice Kavanaugh would respect established judicial precedent. We agree, however, with the important point mr. Regan makes. We too understand that great nations can fall. It should be a major concern to all of us, even if we disagree on why it is a danger today.

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