I often quip that Richard Epstein is the smartest man in America, or at the very least that I wish I could be half as lucid as he is at his present age (75)—heck, I’d take being half as lucid as he is at my current age. In any case, his contribution to the Politico symposium this morning about the Kavanaugh matter absolutely nails it:
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. I have no doubt that any senator has the full and complete right to vote whatever way he or she thinks fit on the nomination. And I have no doubt that if the Democrats held a majority of the seats in the Senate, they could have stonedwalled this nomination, just as the Republicans did with Merrick Garland. It is well-established constitutional law that the Senate need not call a hearing, let alone schedule a vote. 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.
But this last-ditch decision to sabotage Kavanaugh at the 11th 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 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?
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