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Absent More Information, Kavanaugh Must Be Confirmed
This isn’t a matter of “credibility,” though that’s how the left is going to try to play it. It isn’t about “always believing the woman” (an idiotic concept). It’s about provable or disprovable evidence. Absent that, the Senate must do what it would have done had the accusation not been made.
Here’s why. The Senate has a Constitutional obligation to confirm or reject this[*] appointment. While every Senator is free to use whatever criteria he or she chooses in determining how to vote, the Senate as a whole has a duty to uphold the Constitution — and that means that the Senate can’t act in such a way as to make fulfilling that Constitutional duty impossible for all future Senates and all future confirmations.
As matters now stand, we have an accusation so vague as to be impossible to prove or disprove: no time, no place, no details before or after, no contemporaneous reporting, no witnesses. Absent further details, it is not possible to establish the veracity of the claims made against Kavanaugh. Mere credibility is inadequate: whatever one thinks of Ms. Ford’s claims, the reality is that there is no way to determine whether she is being truthful and correct, truthful but mistaken, or simply dishonest.
If the Senate rejects Kavanaugh on this basis, it has abrogated its responsibility and authority to confirm future justices. It will have set a precedent that allows any sufficiently compelling fraud to cast the deciding vote in confirmation hearings. This is true whether or not Ms. Ford is being honest.
Any Senator who would have voted to confirm Brett Kavanaugh prior to this allegation, but who opposes his confirmation now, is, though acting within his or her right as a Senator, nonetheless betraying the institution and contributing to the decline of what was once a dignified deliberative body.
Constitutional governance must not be surrendered to the mob — not even to a mob of one.
[* As Al Sparks has correctly pointed out in #44, no specific nominee must be confirmed or rejected. However, it does remain the Senate’s Constitutional duty to confirm or reject nominees.]
Published in Politics
Too bad Kelly Ayotte was defeated at her last election. She was a fine Senator, and would have been an admirable choice on Judicially. She was Attorney General in New Hampshire before becoming a Senator.
Martha would certainly be fine. I do not believe there are any female lawyers among the Republicans. Too bad.
It is hard to pinpoint the worst Democrat, but this woman is certainly up there. She just told all men in America to shut up!
Hank, this Post not only ranks a “like”, but a like to the tenth power!
I have to admit that the Democrats really caught me up short with this maneuver. I underestimated how low they could go. They truly don’t care what they have to do to achieve power. Smearing a man’s reputation for life? It’s just another day!
We’re winning this debate. Americans are a little more reasonable than I thought.
Mika Brzezinski:
https://thehill.com/homenews/media/407359-mika-brzezinski-whats-gop-supposed-to-do-except-demand-a-vote-on-kavanaugh
I think this whole thing unites the Nevers and the Evers. Triumphing over Democrats’ outrageous misconduct will unify us before the midterms. A conservative SCOTUS majority that will last a generation doesn’t hurt either.
Great post. I hope Sen. Grassley doesn’t let anyone hijack the confirmation process and turn it into a circus. Because that is precisely what Sen. Shumer and others are trying to do. I also hope that the Senate sets a precedent that will apply to all future situations such as this one (and I have no doubt that there will be many many others in the years to come): if you make an accusation like the one that Ford has made against Kavanaugh and want to be taken seriously, you can’t be anonymous, you must show up and testify under oath in a public hearing and you must be willing to do it under trial-like conditions, and the benefit of the doubt goes to the accused.
The moral, personal integrity, intelligence and common sense of the media and a huge chunk of the population is so eroded that the Democrats put forth this unrooted, unprovable, unknowable allegation with full knowledge that it could derail the confirmation until after the election. To allow this would be a travesty. Moreover after it’s all over, whether allowed to be effective or not, it should be pursued (not by the government, but by some private initiative with private funding) and those who pushed the narrative made to pay in some way.
Amen to that. Feinstein is the real problem here. Until her fellow senators shame her* in a very public and humiliating way, this kind of crap is destined to continue.
*But they won’t. They are such cowards.
I have consistently said that I am voting for a Republican Legislator turned Democrat for the House to provide a check on Trump, but Republican Martha McSally for the Senate to confirm more judges.
I will be voting for Republican Martha McSally for Senate and contributed to her campaign. She would be great on the Senate Judiciary Committee.
At one point, there was talk about Kelly Ayotte being the Majority Counsel for just this nomination, and for her to question Ms. Ford in lieu of the male Senators.
Susan Collins went one step further and suggested that Brett Kavanaugh’s counsel cross-examine Ms. Ford, and Ms. Ford’s Counsel cross-examine Brett. Susan Collins has acted very well and cagey in this case. Like Murkowski, Flake and Corker, she recognized that there had to be the offer of a hearing, but she set it up perfectly.
That intemperate command certainly got my attention.
Amen. (A mere “like” was not sufficient.)
This seems to be the lynchpin of your argument. It’s false. The Senate doesn’t act on nominations all the time. Nor does the advise and consent clause of the U.S. Constitution make any mention of the Senate being required to vote on it. The procedure where a president nominates isn’t even required. One of the first examples of this is when the Senate sent to President Washington five names for a vacancy before he had a chance to nominate someone. Constitutionallly, Washington could have simply appointed someone from that list, but he chose to nominate someone else. The Senate consented to the appointment.
Probably the most recent high profile example of that is Merrick Garland who Obama nominated but the Senate chose not to act upon.
And for lower level nominees to the executive branch, as well as the judicial branch, that happens all the time.
I’ll end with saying that Kavanaugh should be confirmed. But there is no constituional requirement that the Senate vote on it.
That applies to some on the right as well.
And there is this …
Merrick Garland never got a hearing. Judge Kavanaugh did. I believe that is what Henry is getting to.
Al, thanks for noting this. I’ve been looking at my comment about the obligation to “confirm or reject this appointment,” wondering if I should correct it to read “confirm or reject appointments.” I probably should have. Because you’re right that the Senate has no special obligation to actually reach a decision about any single, particular appointment. I’ve routinely defended the decision not to act on the Garland nomination with exactly that thought in mind.
However, the Senate does have a Constitutional obligation to make a decision about Supreme Court nominations. That’s its Article II, Section 2 duty to provide “Advice and Consent.” You’re correct that it doesn’t need to vote, per se: they could arm wrestle, allow the tallest member to make the pick, or — more realistically — have a committee charged with approving or rejecting nominees.
So the reality is that the Senate has a Constitutionally mandated role of approving or rejecting Presidential nominations to the Supreme Court. And it is that function which must not be surrendered, to be replaced by, in essence, “the unsubstantiated claims of a single woman.”
“We have no power to commandeer an executive branch agency….” How very Constitutional. Bravo, Senator Grassley!