Memo to Kavanaugh’s defenders: Passage of time doesn’t erase youthful mistakes in the criminal justice system, especially for people of color

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President Donald Trump’s Supreme Court nominee, Brett Kavanaugh.
AP Photo/Andrew Harnik

By Eileen M. Ahlin, Pennsylvania State University

The accusation of sexual assault against Supreme Court nominee Brett Kavanaugh, made by California professor Christine Blasey Ford, has been met with a variety of responses.

Among those responses has been the idea that what happens when someone is young should not be held against them, especially if they’ve led a commendable life ever since.

My research and that of others on criminal justice shows that, in fact, that’s not the way the system treats offenses committed by minors, especially if they are a person of color. Their crimes often haunt them for the rest of their lives.

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Why Kavanaugh’s nomination should be withdrawn

Benjamin Wittes writes:

The question before us … is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

A more interesting question than who bears the burden of proof is what that burden is. Lawyers like to think in terms of known standards of evidence: the reasonable doubt standard in criminal cases, clear and convincing evidence or the preponderance of the evidence in differing civil contexts. There is no known standard of evidence applicable here. Realistically, senators make up their own standard, and decide whether Kavanaugh has satisfied it. For most senators, in fact, there’s no standard of evidence at all, for their support for or opposition to him does not depend on the evidence. It is ideological in character.

But there’s another standard of evidence at work, the one inside Kavanaugh’s heart and head, the one which if he cannot meet, he acknowledges his own service to be less than viable. I can imagine two operative standards for a nominee in Kavanaugh’s shoes. One is what we might call the minimally convincing standard—which we can loosely define as a showing just powerful enough to align the few uncommitted Republicans with the already-declared Republicans and thus assure confirmation.

The other let’s call the no-asterisks standard—that is, a showing sufficiently powerful that a reasonable person will not spend the years of Kavanaugh’s service mentally doubting his integrity or fitness for the role he is playing. It is a showing sufficient for a reasonable pro-choice woman to believe it legitimate—if not desirable—for Kavanaugh to sit on a case reconsidering Roe v. Wade, or for a sexual-assault victim, whatever she may think of his views, to believe it legitimate for him to hear her appeal.

It is possible to imagine Kavanaugh’s confirmation taking place in the space between these two standards. It is possible to imagine his testimony shoring up support among those who want to support him but leaving everyone else with real doubt. This would be, in my view, a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice. [Continue reading…]

Kavanaugh reluctant to answer questions about his drinking habits and sexual behavior

The Washington Post reports:

Just as he did several weeks ago to prepare for his confirmation hearings for the Supreme Court, Brett M. Kavanaugh was back inside a room at the Eisenhower Executive Office Building — again facing questioners readying him for a high-stakes appearance in the Senate.

This time, the questions were much different. An array of White House aides, playing the role of various senators on the Judiciary Committee, quizzed Kavanaugh last week about his sex life and other personal matters in an attempt to prepare him for a hearing that would inevitably be uncomfortable.

In his answers during the practice runs, aides said, Kavanaugh condemned sexual assault and carefully avoided seeming to discredit Christine Blasey Ford, a psychology professor in Northern California who has accused the nominee of pinning her to a bed, groping her and putting his hand over her mouth to stifle her screams as he tried to take off her clothes at a drunken high school party in the early 1980s.

But Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities, according to three people familiar with the preparations, who requested anonymity to discuss internal deliberations. He declined to answer some questions altogether, saying they were too personal, these people said.

“I’m not going to answer that,” Kavanaugh said at one point according to a senior White House official, who said that the questions were designed to go over the line and that he struck the right tone. [Continue reading…]

Trumpworld divided on Rosenstein — not whether to fire him, but when

Politico reports:

Fox News anchor Laura Ingraham, once a top recruit to serve as White House press secretary, was early out of the gate on Friday with urgent advice for the president.

“Rod Rosenstein must be fired today,” she tweeted, after the New York Times reported that the deputy attorney general had floated the idea of wearing a wire in the Oval Office and removing the president from office by invoking the 25th Amendment.

Ingraham, one of the 47 feeds that President Donald Trump follows on Twitter, tagged his handle in her tweet to make sure he didn’t miss her edict.

The “fire Rosenstein” sentiment — one she eventually deleted with no explanation — was publicly shared by Fox News colleagues and Trump pals like Judge Jeanine Pirro, as well as other close allies with the president’s ear, who did not walk back their comments.

But Trumpworld is no monolith — despite the perception that Fox News functions as an outside communications shop — and the divisions were on display Friday as differing opinions were blasted out in an effort to influence the president’s thinking after the bombshell story. [Continue reading…]

Kavanaugh’s classmates at Georgetown Prep describe alcohol-soaked party culture

The Associated Press reports:

To the uninitiated, Georgetown Preparatory School feels less like a high school than a well-heeled liberal arts college. The 93-acre campus in a Maryland suburb of the nation’s capital boasts a state-of-the-art athletic center, a nine-hole golf course, and its own gift shop. Gardeners crisscross the grounds on carts.

This is where U.S. Supreme Court nominee Brett Kavanaugh spent most of his teen years. And exactly what happened one summer night during that time has become a question that threatens to unravel his chances of joining the nation’s highest court.

Multiple accounts from 1980s-era classmates depict an alcohol-soaked party culture among the close-knit network of single-sex, mostly Roman Catholic private schools in the country’s wealthiest state. At raucous house parties and drunken beach vacations, boys from Georgetown Prep and other all-male academies would meet up with students from nearby all-girl private schools like Stone Ridge, Holy Cross, Georgetown Visitation and the non-sectarian Holton-Arms School. Binge drinking was a routine part of the social scene, with minimal adult supervision. [Continue reading…]

Evangelical leaders are frustrated at GOP caution on Kavanaugh allegation

The New York Times reports:

Worried their chance to cement a conservative majority on the Supreme Court could slip away, a growing number of evangelical and anti-abortion leaders are expressing frustration that Senate Republicans and the White House are not protecting Judge Brett M. Kavanaugh more forcefully from a sexual assault allegation and warning that conservative voters may stay home in November if his nomination falls apart.

Several of these leaders, including ones with close ties to the White House and Senate Republicans, are urging Republicans to move forward with a confirmation vote imminently unless the woman who accused Judge Kavanaugh of sexual assault, Christine Blasey Ford, agrees to share her story with the Senate Judiciary Committee within the next few days.

Dr. Blasey’s lawyers told the committee Thursday that she was willing to testify next week, pending negotiations over “terms that are fair,” but not on Monday as Senate Republicans had wanted.

The evangelical leaders’ pleas are, in part, an attempt to apply political pressure: Some of them are warning that religious conservatives may feel little motivation to vote in the midterm elections unless Senate Republicans move the nomination out of committee soon and do more to defend Judge Kavanaugh from what they say is a desperate Democratic ploy to prevent President Trump from filling future court vacancies. [Continue reading…]

Anonymous editorial in Wall Street Journal tries to cast doubt on Kavanaugh’s assault of a teenage girl

If the acuity of anyone’s memory should be subject to questioning, it would surely be that belonging to two teenage boys who were described as being, at the time, “stumbling drunk.” Forget about how much each remembers years later; how much did they remember the next day?

Mark Judge says he has no recollection of the events now clearly described by the victim, Christine Blasey Ford, while Brett M. Kavanaugh emphatically denies he has ever engaged in a sexual assault.

Traumatic experiences have the power to imprint themselves in memory in such a way that the past becomes enduringly present. Conversely, alcohol has the power to erase memory, release inhibitions, and incapacitate good judgement.

Before answering more pointed questions about the event that Ford recounts, Kavanaugh should be asked under oath whether and if so, how often, he was as a teenager “stumbling drunk”; whether he ever drank until he passed out; and how he thinks alcohol may have affected his memory.

An anonymous editorialist, writing for the editorial board of the Wall Street Journal claims:

This is a case of an alleged teenage encounter, partially recalled 30 years later without corroboration, and brought forward to ruin Mr. Kavanaugh’s reputation for partisan purposes.

To refer to Ford’s account as having been “partially recalled 30 years later” is to promote a disingenuous narrative revolving around the frailty of memory.

Who can clearly remember anything that happened 30 years ago?

And yet we do indeed all know that memory is not like a fading photograph. What we remember and what we forget has everything to do with what each experience signifies and which did or did not have an emotional impact.

The question about Ford is not how could she remember? It is a question for those who would sow doubt: how could she forget?

A girl at an age where she is just beginning to learn how to navigate in the treacherous waters of adolescence gets assaulted, denigrated, and humiliated.

Her injury is then compounded and gets locked inside by the knowledge that her assailant is almost certain to never own up — least of all when he is right on the brink of becoming a Supreme Court justice.

The 15-year-old was too afraid to speak up at the time of the assault and as a 51-year-old she had every reason to expect that by taking a stand she would once again be attacked.

But if the appointment of a judge on the highest court perpetuates an injustice — as it has in the past — how can confidence in the rule of law be maintained?

Law will be seen as nothing more than already too often it is: an instrument used for the protection of power.

While Kavanaugh has repeatedly taken oaths to protect the constitution, the evidence suggests he has a greater concern about protecting himself.

#MeToo now challenges #MeFirst.

Patrick Leahy: Brett Kavanaugh misled the Senate under oath. I cannot support his nomination

Sen. Patrick Leahy writes:

Last week, I uncovered new evidence that Supreme Court nominee Brett M. Kavanaugh misled the Senate during his earlier hearings for the D.C. Circuit Court by minimizing and even denying his involvement in Bush-era controversies. I gave him the opportunity to correct his testimony at his hearing last week; he chose instead to double down.

I make no claim that Kavanaugh is a bad person. But when his prior confirmation to our nation’s “second highest court” was in jeopardy, he repeatedly misled the Senate when the truth might have placed that job out of reach.

Take his relationship with the ringleader of the “Memogate” scandal. Between 2001 and 2003, two Republican staffers regularly gained unauthorized access to the private computer files of six Democratic senators, including mine, taking 4,670 files on controversial judicial nominees.

Kavanaugh was asked more than 100 times about this scandal in 2004 and 2006. He testified repeatedly that he knew nothing about the source of the information; that he received nothing that even appeared to be prepared by Democratic staff; and that he never suspected anything unusual, or “untoward.”

But emails I released last week show that then-Republican Senate Judiciary Committee counsel Manuel Miranda regularly shared obviously ill-gotten, inside information with Kavanaugh, which Miranda often asked be kept secret. [Continue reading…]

Ronan Farrow and Jane Mayer report:

On Thursday, Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.

The woman, who has asked not to be identified, first approached Democratic lawmakers in July, shortly after Trump nominated Kavanaugh. The allegation dates back to the early nineteen-eighties, when Kavanaugh was a high-school student at Georgetown Preparatory School, in Bethesda, Maryland, and the woman attended a nearby high school. In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her. She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand. She was able to free herself. Although the alleged incident took place decades ago and the three individuals involved were minors, the woman said that the memory had been a source of ongoing distress for her, and that she had sought psychological treatment as a result.

In a statement, Kavanaugh said, “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

Kavanaugh’s classmate said of the woman’s allegation, “I have no recollection of that.”

The woman declined a request for an interview.

In recent months, the woman had told friends that Kavanaugh’s nomination had revived the pain of the memory, and that she was grappling with whether to go public with her story. She contacted her congresswoman, Anna Eshoo, a Democrat, sending her a letter describing her allegation. [Continue reading…]

Michael Avenatti: The case for indicting Trump

Michael Avenatti writes:

Sol Wachtler, a former chief judge of the New York State Court of Appeals, once famously remarked that grand juries were so easily swayed that they would “indict a ham sandwich” if a prosecutor requested it. Many times, there is truth to this. But an indictment does not end the process of determining guilt or innocence. It begins it.

Following indictment, criminal defendants can question the validity of the charges, the methods used to acquire the evidence and the evidence itself. They can seek to dismiss a criminal indictment and, if unsatisfied with the ruling, appeal it all the way to the Supreme Court.

The grand jury system has been employed in hundreds of thousands of cases involving all manner of crimes committed by all manner of people. All, that is, except one: the president.

No grand jury has ever indicted a president, and consequently no court, let alone the Supreme Court, has ruled on the critical question of whether the Constitution allows a president to be indicted while in office. Legal scholars have opined on both sides of the issue, and Department of Justice attorneys have drafted memorandums arguing against indicting a sitting president. But none of these analyses establish definitive rules of law. It is time to clarify the issue.

Provided there is sufficient evidence to support an indictment of President Trump — and there are many indications that there is — the special counsel, Robert Mueller, who is investigating possible Russian interference in the 2016 election, and prosecutors from the United States Attorney’s Office for the Southern District of New York, who are investigating payments to my client, Stormy Daniels, and Karen McDougal, should present their evidence to grand juries. Those jurors, citizens of our communities, should then determine whether the evidence supports an indictment of Mr. Trump.

The fact that Mr. Trump is a sitting president should not derail a process that applies to all Americans, regardless of stature or station. [Continue reading…]

America’s courts can’t ignore the world

Justice Stephen Breyer writes:

It is often said that the world is becoming more international in nature. What does this mean for those of us who live in such a world? When I hear words such as globalization, interdependence, and multinational, I sometimes feel like Stendhal’s hero Fabrice del Dongo at the beginning of The Charterhouse of Parma. He is a soldier at the Battle of Waterloo. He is lost in the fog of war. He hears bullets whizzing past. He sees Napoleon on his horse, charging back and forth. As he watches, he thinks to himself, I know something important is happening here—I wish I knew what it was.

It is hard not to have this reaction to the rhetoric of globalization. Two general tendencies are at work in many fields of human endeavor, including politics, government, and law. On the one hand, there are the forces of globalism, internationalism, and interdependence among nations. On the other hand, there are the forces of localism pulling us toward our communal, even tribal, roots. This distinction is familiar enough, but in most discussions these forces are seen as antithetical to each other. I wish to suggest that such a view is wrong—that the global and the local both refer to well-functioning features of the modern world. In law, as in many other realms, they do not necessarily present us with either/or choices. We often can take account of both, and we often should. [Continue reading…]