Kavanaugh and the Duties of the Nomination Process

Update: On Thursday, we had the special hearing with Kavanaugh's accuser (with a woman prosecutor standing in for the Republicans though from my understanding at times they stepped in and she popped up later too) providing a very emotional and convincing account and then Kavanaugh came, providing a very emotional, unhinged (strong partisan attacks on Democrats for 'Borking') and unconvincing denials.   

As argued below, contra to the view of various supporters, this isn't a criminal trial with a burden of proof favoring the "defendant." The hearing also was a sham in that no other witnesses were called. (cf. the Thomas-Anita Hill hearing).  Nor, were the other allegations probed or witnesses or even witness statements officially submitted or handled.  Kavanaugh failed on any number of grounds. He did already.  His testimony made things worse for him, including as a neutral arbitrator. Except maybe for the votes that counted. Well, Trump liked it.  

On Friday, the next day, the vote to advance it out of committee was held. Obviously, it is absurd to do so immediately. The result was an unsurprising party-line vote with drama:  the vote was delayed for ten minutes as a Flake proposed "deal" was discussed.  Basically, it is an up in the air thing: he said that he'd vote to advance but did not want to vote on the floor for about a week so the FBI can investigate. Requiring other parties, the implication being a few Republicans (notably the likes of Collins) are on his side, including Trump, this thing is up in the air for now.  It also was suggested a very emotional encounter with two victims in the elevator influenced Flake.

The twisted soap opera continues. 

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As the details of a possible Senate hearing this Thursday to deal with an allegation of attempted rape when the putative replacement of the swing vote of the Supreme Court continue, more allegations are developing. The #MeToo movement has reached the Supreme Court (again) and we have a new hashtag on #IDidntReport.  Already, and hopefully after he is forced to resign his nomination (which is far from a lock even now), this has pay some dividends. Some sort of justice and inability to silence and tar accusers is in place and will be later on. Not enough.  Justice comes slowly.

(This is why even replacing Kavanaugh with some similar conservative matters. He is particularly bad and forcing him out shows a limit. It also shows why the handling this well goes beyond him. It is a matter of handling things that will come up again and doing so half-way well.)

The mistreatment of the Kavanaugh Nomination, including rushing things along (not in a vacuum -- looking at raw days, this isn't taking long in comparison, but level of documentation that had to be processed alone required more time), is a warning sign. It also provides, as each confirmation and moment of major note, a sort of learning experience. Constitutional developments don't just occur in the courts. The proper handling of nominations and confirmations in general as I tried to argue in this thread  often is a matter of the political process in action.

This doesn't mean they aren't "constitutional" as Justice Kennedy ironically repeatedly said, including in his last appeal from the bench in a separate opinion in the travel ban case. Lame as it might have been in that case, there is something to his argument. In some other case, the courts might have less call or ability to be involved and to provide strong restraint. The Constitution is not in abeyance then. As Kennedy argued:

Indeed, the very  fact  that  an  official  may  have  broad  discretion,  discretion  free  from  judicial  scrutiny,  makes  it  all  the  more  imperative  for  him  or  her  to  adhere  to  the  Constitution and to its meaning and its promise.

Again, this might sound like pablum, but realistically and as a matter of good practice, we cannot merely rely on judges. State and federal officials, down to postal employees and notaries, swear or affirm to uphold the U.S. Constitution.  Their judgment alone often is what matters and needs to be developed in various ways, including moral restraint.  These things should be kept in mind when we look on during the Kavanaugh approval process. On the standard to use there, Prof. Kate Shaw (who happens to be Chris Hayes' wife) had a good op-ed recently that can very well in some other case limit a Democratic President. And, it surely did somehow.

So what standard should the Senate use in evaluating the claims made by Dr. Blasey and in deciding how they bear on Judge Kavanaugh’s fitness for a seat on the Supreme Court? The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee.

She appealed in part to history:

But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.

She concluded:

This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.

As it continues to emerge. A basic part of this is that this isn't a court of law or even a simple job interview. It is a seat, a key seat at that, to the U.S. Supreme Court. These things all have to be taken into consideration:

Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.

Such things should be taken into consideration at the nominating stage too. And, it should be now at the advise and consent stage. But, you live by the constitutional political appointment process, you die by it. Thus, politics affects the hard-line approach of the Republicans, even if an alternative will offer similar (if somewhat different in some fashion -- each member of the conservative wing has certain differences than the others) judicial results. Demanding some limit to the usual court nomination bullshit dance is appropriate here, blatantly opening himself to perjury charges. "Defenses" of "just blatantly unethical" help only so much.

This is a political question. By raw power, a senator can flip a coin and the very mix of concerns can be tainted as here.

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The issue of a "proposed standard" was raised here  and someone felt it was wrong use phrase things in a legal fashion when it is a political decision. It is fine though to use "burden of proof" in various ways, including cases that are not legal proceedings. It also has a philosophical meaning after all and people use legal terms colloquially.  I also found a good quote in an early Supreme Court case regarding decision-making by justices, which also ultimately is a matter of justices deciding things based on judgment:

[Various opinions on the dispute at issue] incline us strongly to suspect that a great diversity of opinion prevails in that state upon the question we have been examining. However this may be, we hold ourselves answerable to God, our consciences, and our country to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.

That is, the justices swore an oath and have a duty to determine the law as they deem fit. The power is ultimately theirs. But, it is reasonable to say that "best judgment" is something that can be opined upon, after all "We the People" ultimately are in charge. That is what the author of that post did. He put forth reasonable grounds for others to help determine if senators were using best judgment. And, yes, judges have a responsibility to apply law, but justices ultimately are the final arbitrators.

If they decide based on flimsy grounds, it is not like the law is not binding. There are ways for others to respond, especially if the judges don't act in a convincing fashion. In both cases, they are "answerable to ... our country." Anyways, more continues to come out including in comparison to the last nominee, who even went to the same high school without being such a sexist asshole.

[Last part added on 9/25 and might add more.  Bullies won in 2016. Will more win this week? First Monday in October is the 1st.]