Home » Advice & Consent 2.11: Stepping on Rakes

Advice & Consent 2.11: Stepping on Rakes

On this episode: Dr. Ford’s attorney negotiates testimony conditions for this week, Senate Republicans tip their hands and step on rakes, and we’re all getting ready for a Thursday hearing that may trip up the previously unstoppable nomination of Judge Kavanaugh.


Breaking: There’s more

Last night, the dynamic duo of the New Yorker’s Jane Mayer and Ronan Farrow broke the news of another event from 1983 in which then-Yale-freshman Deborah Ramirez says Kavanaugh exposed himself and put his penis in contact with Ramirez at a dorm party. There were others present and the extensively researched article goes into great detail. Ramirez asks for an FBI investigation. Kavanaugh and the WH deny everything. Again.

Sidebar: GOP Senators knew about this allegation last week… about the time they were suggesting there’s no need for additional investigations into Judge Kavanaugh. Which is head-scratchingly curious.

Second sidebar: Michael Avenatti is the Forrest Gump of lawyers in the Trump era: He seems to be everywhere, so of course he’s entered the Kavanaugh nomination process. He has posed some additional allegations on behalf of an anonymous client. Worth a mention, but without more we won’t delve further.


Dr. Ford’s testimony

  • This week has been punctuated by public and backroom back-and-forths between Chairman Grassley and Debora Katz, the attorney for Dr. Ford.
  • As noted on last week’s pod, the SJC was trying to narrowly cram her testimony into a teeny tiny box, and her attorney has been fighting to maintain some semblance of fairness
  • As of tonight, we are scheduled for 10am Thursday


GOP leadership remains confident

  • VPOTUS and SML McConnell have both said that this nomination is going to be confirmed, which is a bold statement considering how tenuous the nomination hangs.
  • We’re still in a situation where the GOP Senators probably need to hold fast, because if one Senator swings to a no, there could be a handful.
  • The same holds true for red state Dems, but their ability to vote no at this point seems quite strengthened by the plummeting popularity of Judge Kavanaugh and the multiple good faith reasons to reject his nomination
  • Yet… Sen. McConnell and VPOTUS feel emboldened enough to call their home run shots. Are they that confident in Collins, Murkowski, Flake, et. al.?


Stepping on Rakes

  • The ugliness of this process is astonishing even to veteran observers
  • Ed Whelan is a conservative attorney known for his frequent public BS attacks (see his ridiculous critiques of election law professor Rick Hasen’s book on Justice Scalia, for a recent instance)
  • Sherlock Whelan pieced together a few screenshots from Zillow, LinkedIn and yearbooks to j’Accuse another classmate of Judge Kavanaugh as “the real attacker”
  • Scorn and ridicule flowed, but then it was revealed via the timing of his LinkedIn searches of Dr. Ford being before the public revelation of her name that this might have been an inside job with WH aid.
  • Other supporters of Judge Kavanaugh are taking unique approaches:
  • Evangelical Franklin Graham suggests attempted rape is not a crime and if this allegation is true, Kavanaugh respected Dr. Ford’s rejection of his advances by walking away. So no big deal. WHAT? This got some fact check runs, so check out Snopes for the details.
  • Sen. Hatch called Dr. Ford “mixed up”
  • Don Jr. has tweeted out mocking messages, equating the attack with a cute love note
  • GOP Senate candidate Kevin Cramer suggests accusations against Kavanaugh are absurd because the assault attempt never went anywhere (CNN)
  • Sen. Grassley’s SJC aide resigned due to undisclosed sexual harassment
  • Sen. Lee’s SJC aide has been quoted as saying rape culture was made up to cater to white college women, much to the chagrin of, well… everyone
  • GOP SJC chief counsel for nominations Mike Davis tipped his hand on Twitter that maybe this won’t be a real fair treatment of Dr. Ford by tweeting “Unfazed and determined. We will confirm Judge Kavanaugh.” and then quickly deleting it because THAT LOOKED REALLY BAD.
  • Rep. Kevin Cramer, running for the Senate in North Dakota Senate, said that Ford’s allegation is “even more absurd than” Anita Hill was because, he said, Kavanaugh and Ford were teens at the time and were drinking. (NBC News)
  • These are not the only rakes that have been stepped on!
  • Meanwhile, it appears there will be no further investigation outside of the hearing this week.
  • And oh by the way, Kavanaugh’s popularity has dropped so much (FiveThirtyEight) it’s possible this might be a drag in the midterms for Republicans, rather than an issue to stave off the Blue WaveTM. (NYT)


Kavanaugh’s Prep

Fascinating read from the Washington Post.


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.

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…

In one key call, Kavanaugh told Sen. Orrin G. Hatch (R-Utah) that Ford had the wrong guy in mind, saying he had not attended a party like the one she described to The Washington Post. He and his allies also privately discussed a defense that would raise doubts that the attacker was Kavanaugh, rather than try to dispute that an incident involving Ford had happened.


Standard of review

  • We hear a lot about Due Process, innocent until proven guilty and a lot more
  • A reminder: this is not a criminal investigation nor a trial
  • This is more akin to a job interview – would you hire someone that has this kind of baggage when there are other qualified people available?
  • Even if you wanted that person really badly and didn’t believe the accusations, wouldn’t you look into it? Take a little time to be sure?
  • Layer on this that the “job” is a lifetime appointment on the highest Court.

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