Richard Epstein, a big-deal law professor whose greatest hits package includes opposition to any anti-discrimination laws in private hiring, because supposedly the costs of such laws outweigh the benefits of trying to get the Market (blessed be its Name) to be more efficiency-regarding, has weighed in on the Kavanaugh nomination.
The Democratic resistance to the Kavanaugh nomination has been an all-out assault on his judicial philosophy and personal integrity from the moment that it was announced . . . In retrospect, the decision not to hold any hearings on Garland should be regarded as a wise and humane political decision, because it spared Garland and the nation a similar disgraceful exhibition of intolerance that some conservative opponents of Garland may well have launched to tarnish his confirmation chances.
It gets (a lot) worse:
But this last-ditch decision to sabotage Kavanaugh at the eleventh hour is a disgusting piece of political propaganda. Christine Blasey Ford behaved wholly improperly when she decided to write a letter only to “a senior Democratic lawmaker,” in which she made the most serious allegations of sexual assault against Kavanaugh. At the very least, she ought to have handled matters wholly differently. If she wanted to keep matters confidential, she should have sent that letter to President Trump [I suppose the charitable reading of this suggestion is that it’s Epstein’s idea of a sick joke] and to Senator Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee. She also should have sent it to the FBI for investigation. And she should have done all of these things at the earliest possible moment, in time for a principled and neutral examination to take place before the Senate hearings took place. Then, she should have sat for a cross-examination.
Putting the information exclusively in the hands of key Democrats thus invited the wholly corrupt strategy that has now unfolded. First, the Democrats would try to discredit Kavanaugh by engaging in a set of procedural antics and obnoxious substantive questions during the hearing, without mentioning this letter. When that strategy abjectly failed, they knew they had to go to Plan B, which was to release the letter and the allegation days before the confirmation vote. A perfect sandbag, for the Democrats knew full well that there was no time to respond to them, without causing an enormous delay in the confirmation hearings. Their hope was, and is, to create a huge media circus that would take weeks if not months to sort out. Shipwreck this nomination. Make it impossible for the current Senate to pass on any subsequent nominee before January. Then take control of the Senate and create a stalemate that could run on until the next presidential election.
And for what? Ford, Kavanaugh’s accuser, maintained a stony silence on these allegations for more than 35 years. At no point did she raise them in connection with the Senate confirmation hearings before Kavanaugh was confirmed in 2006. Kavanaugh has categorically denied the allegations. Late last week, Mark Judge, his alleged accomplice, denounced the allegations as “absolutely nuts.” No other woman has ever made any allegation of this sort against Kavanaugh. and 65 women have written an explicit letter in his defense. Kavanaugh is right not to respond beyond his categorical denial, knowing full well that further comment would only draw him further into a vortex on which credibility determinations would be unending. And the Senate is right to continue with the confirmation vote. The institutional damage to the Senate, the Supreme Court and the nation has already been enormous. What is left now is only the sorry task of damage containment. What sane judge would like to be the next Supreme Court nominee?
Blasey Ford contacted the member of Congress who represents her district more than two months ago. She spoke to the Washington Post (off the record) even before then. After Blasey Ford contacted her in late July, Diane Feinstein honored her request for confidentiality, as did other Democratic legislators who knew of the letter. Epstein’s claim that the Democrats on the judiciary committee dumped the letter into the public record in a strategic attempt to sink the nomination at the last minute is a lie.
Epstein’s claim that Blasey Ford “maintained a stony silence” about the incident for 35 years is also a lie. As Epstein well knows, she told her husband about it in 2012, and two therapists in 2012 and 2013 respectively. She didn’t advertise her experience to the world more broadly, no doubt because there are a lot of people like Richard Epstein in it. This may also have just a bit of relevance to why women aren’t coming out of the woodwork (yet) to discuss their interactions with Brett Kavanaugh, except of course for the 65 brave souls who signed a letter saying they’d known him for a long time and he never tried to rape them (except a lot of them now seem very reluctant to continue to vouch for their preppie acquaintance from back in the day).
As for Mark Judge, put Mr. We Drank Enough to Black Out A Lot of Times under oath, and see what he has to say. Due process and all . . .
Here’s a palate cleanser from Michele Landis Dauber:
Judge Brett Kavanaugh is accused of behavior that, as reported, is shocking for its aggressiveness and brazenness. The younger girl, physically forced into a room in a sneak attack by two older boys. The door locked. The music loud so no one else could hear her scream. The attempt to strip her clothes off. Pinned down by his body, groped, humped, unable to stop it from happening. The hand over her mouth, the fear of death. The laughing male camaraderie as she was trapped, molested, terrorized. Her escape into the bathroom, then out into the night. These are very serious allegations from a credible source, backed by some corroborating documentary evidence. In anticipation of what the victim, professor Christine Blasey Ford, feared would be “annihilation” by the Trump administration, she took a lie-detector test on a statement summarizing her allegations, and passed.
This nomination process cannot continue as it was before these grave and credible allegations became known. That would be a slap in the face to women and survivors of sexual assault everywhere. The question isn’t only whether Brett Kavanaugh can still be a Supreme Court justice; it’s whether he can still be a federal judge.
Answering that question will not require an FBI investigation or a Senate debate. It will require the court system to follow its own procedures and conduct an impartial investigation. Such a process ended the career of 9th Circuit Judge Alex Kozinski on the basis of information regarding the sexually salacious atmosphere in his judicial chambers. Kavanaugh clerked for Kozinski in those chambers.
Under the rules of the Judicial Conference governing the behavior of federal judges, misconduct includes “conduct occurring outside the performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” If substantiated, this allegation meets that test. Little could have worse impact on the “public confidence in the courts”—assuming women to be part of the “public”—than allowing someone who has been credibly accused of an incident Ford’s therapist’s notes describe as a “rape attempt” to decide cases.
Professor Ford need not file a complaint to initiate this investigation. Under the Judicial Conference procedures, the chief judge of the D.C. Circuit can “identify” a complaint based on media reports. The matter would then be referred for a full investigation to find the facts. The Conference’s procedures are undergoing improvements in the way sexual harassment complaints are handled, but are less likely to “annihilate” victims than the public spectacle of a politicized Senate confirmation hearing. The investigative processes take time and care to implement with fairness to all parties, making a fast confirmation impossible. And although the Judicial Conference does not have the ability to remove a sitting judge—only Congress can do that—it can conduct the investigation, make a determination of the facts, issue a reprimand and impose sanctions. Kozinski resigned rather than face that prospect.
Whether that is a satisfactory ending to situations such as this one is a question for another day. Clearly, a new politics of sexual assault, building on the recent movement making it more visible, is urgently called for.