Friday, October 5, 2018
With Senator Susan Collins’ announcement of her vote to confirm, along with Senator Flake and Munchin’s; by early next week there will be Supreme Court Justice Brett Kavanaugh. It is unfortunate that the argument made by the thousands of Law Professors had nothing to do with the accusations of the nominees youthful sexual and drinking activities, not a single thing.
As shown below, these academics, along with Justice John Paul Stevens, felt that Kavanaugh’s irrational paranoid attack on the Democratic party was the deal breaker. This included the accusation of our conspiring to manufacture all of the claims out of whole cloth, many of which related to chronic drunkenness have been affirmed by numerous associates of his.
Yet, it was the sexual accusations, specifically the most lurid ones by the client of Mr. Avinatti, that got the most attention, referenced specifically by Senator Collins as the least plausible. Sadly, the truism that “sex sells” applies to films, internet sites and as we now know, to the selection of the most influential position of the U.S. Government short of the Presidency itself.
This augurs difficult times, as President Trump now has a vital ally in defending him from what are certainly breaches of every norm for his office that have evolved over the centuries, along with defiance of, if not the letter of the law, certainly its penumbra of rationality and decency.
The challenge has gotten greater, but we have faced World Wars, Depressions and a Civil War,and have survived. It’s a challenge that every generation faces anew, and as we who are older pass the baton, it’s with confidence that we shall continue meeting these challenges.
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Original diary continues:
This diary is prompted by a N.Y. Times printed petition signed by over a thousand professors of law that is titled, The Senate Should Not Confirm Kavanaugh. There are dozens of petitions, totaling tens of thousands of signatures expressing the same sentiment, yet, I see this one as more important.
First, it can be considered a poll of all law professors in the country. When this was first circulated perhaps a few days ago, you can be sure that supporters of Kavanaugh went to work to enlist professors who would sign on to a contrary petition that said that Kavanaugh must be confirmed. As of now, there is no list of such signatories, none at all. If it were only a handful, they would not have mentioned that they made the attempt.
It should be pointed out that the statement of disapproval of Kavanaugh has absolutely nothing to do with his behavior as a young man, his drinking or sexual proclivities. He was rejected by these legal scholars based on his approach to the testimony he gave on Thursday, as described here.
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“The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.”
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“The Law” as a bulwark of society, is not based on promotion of a given outcome, so the same legal scholar can teach a course on prosecuting and of defense of criminal cases. A course in constitutional law would be pretty similar if taught by a liberal or a conservative. What these diverse educators have in common is perpetuating the ideal of objective jurisprudence being the controlling force of law, most importantly the highest court.
Any true legal scholar understands the fragility of a society that accepts the decision of those who adhere the “law” rather than raw power. In autocracies, whether of the left or the right, jurisprudence is a sham, as are the judges and lawyers who populate these institutions. This is expressed in the rationale for the rejection of Judge Kavanaugh for the Supreme Court.
At last word, when this was posted before my turning in Wednesday, the farce of the FBI investigation has been disclosed. It was so minimal as to be meaningless. McConnell is planning to hold the vote on Friday, so he assumes that Kavanaugh will prevail. It seems that the deal was that Trump would be “good cop” who said that the FBI could go as far as needed to get complete evidence, when his actual instructions were to only allow an illusion of an investigation, and then attempt to keep the actual report sequestered from the public.
We shall see whether the handful of Senators who had condemned the President and the Republican leadership will actually act on the reality that the investigation they demanded never happened.
Addendum Thurs AM, I have now located the rebuttal petition described that apparently has not gotten sufficient signatures to be publicized.
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