Fred Henneke, Attorney & Counselor-At-Law
“It was the best of times, it was the worst of times.” Charles Dickens
It was the best of times in that our constitutional process of selecting persons to fill the highest court in the land was on display, exactly as written in the Constitution. It was the worst of times in the way it was conducted.
There actually were two polar opposite components of The Hearing. In the morning show, the panel heard from Dr. Christine Ford, the woman who has accused Judge Brett Kavanaugh of sexual assault when they were both in high school. Harkening back to the treatment by the Republicans in 1992 of Anita Hill during the confirmation hearing for now-Justice Clarence Thomas, the Republicans bent way over backward to avoid the slightest hint of unfair treatment of Dr. Ford. They went so far as to hire Audrey Mitchell, an experienced prosecutor of sexual crimes in Arizona, to ask questions for the Republicans. Each Republican senator gave up their 5 minutes in the spot light to Ms. Mitchell – that alone should tell you how concerned they were about possible backlash from women voters. Ms. Mitchell’s questions did little to shake Dr. Ford or throw her off her repeated testimony. Questions from the Democrats on the Senate Judiciary Committee were designed to bolster and reinforce Dr. Ford’s allegations. By all accounts, Dr. Ford came off as credible, truthful and not partisan. She stuck firmly to her story.
The afternoon session was totally different. Judge Kavanaugh came out fiercely defending himself,categorically denying the allegations of Dr. Ford and two other women who had come forward with allegations of sexual misconduct by Judge Kavanaugh. Judge Kavanaugh dueled with the Democratic senators, at time skillfully avoiding answering questions concerning his drinking during high school and college (which,as an aside, he would never permit in his courtroom).. He was,at times, belligerent, loud, defensive and combative, but never wavered in his absolute rejection of any truth to the allegations. He went to great lengths to detail the harm the allegations had done to him and, very emotionally, his family. During this session, the Republican senators held on to their 5 minutes of fame and, for the most part, denounced the Democrats, and Senator Feinstein in particular, of gross partisan politics and character assassination in the hope of keeping any Republican nominee from being confirmed to the Supreme Court.
High drama, if you like raw, ugly no-holds-barred partisan politics.
1. I firmly believe Dr. Ford suffered a serious traumatic event that involved sexual assault. She was unshakable in her testimony. From my viewpoint as an attorney, however, naming Judge Kavanaugh as the assailant is less credible because of the lack of contemporaneous corroboration.
2. Dr. Ford came forward out of a sincere believe that her allegations needed to be part of the examination of Judge Kavanaugh’s fitness for the Supreme Court. She is not part wittingly of a partisan Democrat plot to derail the nomination should there be one..
3. Senator Feinstein bears a lot of responsibility for the bitter tone of the proceedigs. She was in possession of the allegations around the time Judge Kavanaugh was announced as the nominees. At that time, she should have realized the explosiveness of the allegations and brought them to the attention of the Chairman of the Committee so they could have been included in the background investigation of Judge Kavanaugh by the FBI. By delaying until the last minute, the Senator precluded a proper investigation and set the state for today’s vitriol.
4. There is no reason, other than partisan politics, to not pause so a thorough investigation by the FBI of the allegations could be performed and included in their report. The Supreme Court will survive another week or two without its 9th member in order for the Senate to get it right.
5. Judge Kavanaugh came forward righteously in defense of himself and his family. The was no wavering in his denials. Perhaps he was a little too strident; some speculate he was reaching out to the President so the nomination would not be withdrawn. However, his future is at stake.
A vote of the Senate Judiciary Committee is scheduled for 9:30 am EST tomorrow (Friday). Unless one of the Republican senators, such as Jeff Flake or Ben Sasse, jump ship and vote NO, the nomination will be reported positively to the full Senate for a vote. Should one of them jump ship, the nomination will still be reported to the full Senate, albeit negatively, and in severe jeopardy.
Even with a positive recommendation, confirmation is not a sure thing. Senators Susan Collins and Lisa Murkowski both expressed their concerns about Judge Kavanaugh’s position on abortion prior to these allegations. During the early attempts to “Repeal and Replace” Obamacare, both proved themselves to be immune from pressure from the White House and Mitch McConnell. It will take 2 Nay Republican votes to sink the nomination. Could we have another “McCain” moment?
The Founding Fathers, including Washington,were very concerned about the destructive results of “faction”. Nowhere in the Constitution are there provisions for political parties. Today was a sad, ugly reminder of their wisdom .