The Editors: It is time for the Kavanaugh nomination to be withdrawn

 (CNS photo/Jim Bourg, pool via Reuters)

Editors' note (Oct. 2, 6:00 pm): Our editor in chief, Father Matt Malone, S.J., has responded, in his regular column, to many of our readers’ reactions to and questions about this editorial.

Dr. Christine Blasey Ford’s testimony before the Senate Judiciary Committee today clearly demonstrated both the seriousness of her allegation of assault by Judge Brett M. Kavanaugh and the stakes of this question for the whole country. Judge Kavanaugh denied the accusation and emphasized in his testimony that the opposition of Democratic senators to his nomination and their consequent willingness to attack him was established long before Dr. Blasey’s allegation was known.

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Evaluating the credibility of these competing accounts is a question about which people of good will can and do disagree. The editors of this review have no special insight into who is telling the truth. If Dr. Blasey’s allegation is true, the assault and Judge Kavanaugh’s denial of it mean that he should not be seated on the U.S. Supreme Court. But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

The nomination of Judge Kavanaugh has become a referendum on how to address allegations of sexual assault.

If this were a question of establishing Judge Kavanaugh’s legal or moral responsibility for the assault described by Dr. Blasey, then far more stringent standards of proof would apply. His presumption of innocence might settle the matter in his favor, absent further investigation and new evidence. But the question is not solely about Judge Kavanaugh’s responsibility, nor is it any longer primarily about his qualifications. Rather it is about the prudence of his nomination and potential confirmation. In addition to being a fight over policy issues, which it already was, his nomination has also become a referendum on how to address allegations of sexual assault.

Somewhere in the distant past, at least before the word “Borked” was coined to describe a Supreme Court nomination defeated by ideological opposition, Senate confirmation hearings might have focused on evaluating a nominee’s judicial character or qualifications as a legal thinker. But that time is long past. Many cases decided by the Supreme Court itself and thus also presidential nominations to that body (and the Senate hearings that follow) are now thoroughly engaged in deciding “policy by other means.” Neither the country nor the court is well served by this arrangement, but refusing to recognize it does nothing to help reverse it.

When Republican leaders in the Senate refused even to hold hearings on the nomination of Judge Merrick Garland, they were not objecting to his qualifications or character but to the likely outcome of his vote on the court were he to be confirmed. When Senate Democrats were mostly united in opposition to Judge Kavanaugh well in advance of any hearings (and before any rumor of Dr. Blasey’s accusation was known), they were using the same calculus. While regrettable in both cases, such results are, as we have said before, the predictable outcome of the fact that “fundamental questions of social policy are increasingly referred to the court for adjudication as constitutional issues.”

What is different this time is that this nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court. It now involves the symbolic meaning of his nomination and confirmation in the #MeToo era. The hearings and the committee’s deliberations are now also a bellwether of the way the country treats women when their reports of harassment, assault and abuse threaten to derail the careers of powerful men.

This nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court.

While nomination hearings are far from the best venue to deal with such issues, the question is sufficiently important that it is prudent to recognize it as determinative at this point. Dr. Blasey's accusations have neither been fully investigated nor been proven to a legal standard, but neither have they been conclusively disproved or shown to be less than credible. Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability. The best of the bad resolutions available in this dilemma is for Judge Kavanaugh’s nomination to be withdrawn.

If Senate Republicans proceed with his nomination, they will be prioritizing policy aims over a woman’s report of an assault. Were he to be confirmed without this allegation being firmly disproved, it would hang over his future decisions on the Supreme Court for decades and further divide the country. Even if one thinks that Dr. Blasey's allegations are not credible, demonstrating them not to be would require further investigations and testimony. This would include calling additional witnesses and assessing further allegations against Judge Kavanaugh from other women, to which Republicans on the committee have been unwilling to commit and which would be divisive in any case.

The best of the bad resolutions available in this dilemma is for Judge Kavanaugh’s nomination to be withdrawn.

There are many good reasons to support the nomination of a qualified judge who is committed to a textualist interpretation of the Constitution to the Supreme Court. Over time, such an approach may return the question of abortion to the states, where it belongs given the Constitution’s silence on the matter, and where a more just and moral outcome than is currently possible under Roe v. Wade may be achieved. Restoring such a morally complex question to the deliberation of legislators rather than judges may also bring the country closer to a time when confirmation hearings can truly focus on the character and qualifications of the nominee rather than serving as proxy battles over every contentious issue in U.S. politics.

We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

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Andrew Strada
3 weeks ago

This is about power, pure and simple. The Republicans will do anything to get Kavanagh onto the Court; the Democrats will do anything to keep him off. The stakes are high and since the "borking" by Ted Kennedy in 1986, it is total war all the time. The pontification and moralizing on both sides is nothing more than pretentious piffle.

Richard C. Shaw
3 weeks ago

Brilliant move! We should disregard the rule of law, the right to be considered innocent until proven guilty, based on a Corrupt political delay stunt and a baseless 36 year old accusation that has not only no merit, but no facts, nor any plausible way to prove it even took place. While the defenseless accused swore under oath of perjury his innocence? Is this the new Socialist Progressive Liberal Democrat agenda? Yes, I think so, I personally think an investigation should be launched against the perpetrators of this second witch hunt the Jack Ass's have so well described as new rule of law? In the mean time they skillfully release their paid to protest cronies out to harass civilized citizens. At the same time releasing their bias media system, and they say this is not their doing? Even b/4 Mr K was nominate these same Jack Ass's made it aboslutly known they would do anything to stop the anyone sellected to the SCOtUS. Not with standing anything, this is the most obvious character assignation I have ever seen in my 85 years and it is a disgrace. No proof, No facts, No witnesses, even an obscured remembrance that changed like the wind. And this author has the audassity to say it time to remove the nominee? sick! What should be removed is the whole lying democrat party.

Karyn Lyn
3 weeks ago

I absolutely disagree. We are a nation of LAWS and INNOCENCE is presumed until PROVEN guilty. Judge Kavanaugh deserves this investigation as much as Dr. Ford. Now she will truly be in the hot seat, as the accuser must provide the burden of evidence (and so far, she has none).

E.Patrick Mosman
3 weeks ago

Reading this article is like following the White Rabbit down the rabbit hole:
"Let the jury consider their verdict," the King said,
for about the twentieth time that day. "No, no!" said the Queen.
"Sentence first–verdict afterward." "Stuff and nonsense!" said Alice
loudly."Source "Alice in Wonderland" By Lewis Carrol
Innocent until proven guilty, the rock of American jurisprudence, has been turned on its head to any accusation,even one with no provable evidence, by a woman against a male is proof of guilt.

Nancy JIMENO
3 weeks ago

This, from a Catholic publication. The hypocrisy!

Elizabeth Walter
3 weeks ago

Innocent until proven guilty!

KATHERIN MARSH
3 weeks ago

Dear Editors,
One Letter to you spoke briefly about Diane Feinstein and secrecy.
In the State of California, a teacher may not keep allegations from student about sexual assault secret.
I realize Diane is not a teacher in the State, nor is she a State Representative. She is the Senior Member of the Senate Judiciary Committee. The public Kangaroo Court on Thursday highlighted that the Judiciary Committee needs a change in their Procedural Rules to keep pace with the #Metoo Movement. The Safe Environment Program which we follow in Catholic Education mandates that one may not keep an allegation of sexual assault or rape, a secret. Why? Because secrecy is a great enabler of criminal behavior. The Hierarchy in our Church deals with the issues of the appropriateness of secrecy to this day. While the SEcrecy of the Confessional must remain sacrosanct, this keeping of Ford's secret is unconscionable. It is also undermining of the core of #Metoo movement.
I appreciate your Editor. I wish that you had been more balanced. Call Diane Feinstein and The Judicial Committee to account for allowing one second of silence about allegations of sexual assault. Anyone who receives a letter with allegations about someone, must never keep it secret. That is wrong. And it is educating people about the wrongness of keeping secret about sexual assaults and the like.

A Fielder
2 weeks 6 days ago

Katherine, mandatory reporters are obligated to act to protect minor children who might be vulnerable to their parents or older, stronger predators who spike drinks at parties. Dr Ford is an adult and is responsible to make decisions about her own life and future. She can decide when to make these allegations public.

KATHERIN MARSH
2 weeks 6 days ago

I obscured my point. I'll try again: The Judiciary Committee of the US Senate needs a rule that mandates reporting by Senators of any reports to them of sexual assaults. If an adult presents a letter about sexual assault to a member of the judiciary committee that is the act of reporting the assault. To then take another step and the member agrees to keep it secret has the appearance of collusion. So that people of all ages understand that we have learned that allegations of sexual assault should be taken seriously, people of all ages should not accept secrecy or a promise to secrecy about such allegations.
If an adult makes allegations of sexual assault with a request for secrecy, the policy should be --NO secrecy. The time for that is ended.

A Fielder
2 weeks 6 days ago

Thanks Katherine for clarifing. I don’t disagree with you, but realizing your suggestion would involve a significant change in our current laws and culture. It’s probably unfair to hold Sen Feinstein accountable to a legal standard that does not exist yet. I know of a number of open rumors (unrelated to the Kavanaugh allegations). I do struggle though with finding the line between seeking justice and gossip based on rumor. I also believe that prudent people sometimes need to wait for the right time to make accusations public. This is not a consesion to political motives, just to say that many circumstances need to be taken into account. Certainly, significant consideration should be the willingness of the adult victim to have her life turned upside down just because someone else believe eves the time is right.

KATHERIN MARSH
3 weeks ago

Dear Editors:
Postscript: I think your conclusions are valid, but one sided and unbalanced.

J Brookbank
3 weeks ago

Thank you for taking a stand, not against the candidate, but against a PROCESS which --- until today's request for the FBI to briefly re-open its background check to investigate these allegations --- was incomplete.

In the words of the GOP's own sex crimes prosecutor, yesterday's hearing was not the correct way to seek the truth about sexual abuse allegations. That she later stated she would not prosecute based on the information available was confusing, given that earlier asessment but doesn't contradict that earlier denouncement of the process.

Ideally, that denouncement of yesterday's process, combined with today's decision to delay for one week to allow the FBI to briefly re-open the candidate's background check, will lead to a standardized process that respects all future candidates, respects any future reporters of sexual assault by candidates and protects both the the truth and the federal institutions involved.

Thank you for taking a stand which, I believe, was only the only possible ethical outcome of the failures of the RCC to conduct similar investigations in a manner which affords reporters of sexual assault with equal institutional power, opportunity and respect for their voices, rights and humanity.

After lots of insistence that there are no parallels between this situation and the crisis in the RCC, now you are being attacked on the basis of similarities and your historical position (as Catholic clerics) on the wrong side of things.

This response is as juvenile as the candidate's retort to a senator: "I don't know [if I have ever blacked out]. Have you?"

You did the right thing calling for his withdrawal in the face of his own repeated refusal to request what he understands, as a judge, is the "industry-standard" sexual assault investigation. THAT would have supported his insistence that he respect for ALL women at ALL times while also communicating a judicial temperament when under intense pressure, a test he failed spectacularly when he behaved like a belligerent and entitled adolescent.

(And, of COURSE, I and many Americans would have list our tempers yesterday. That is why only .0000000000000000001 of Americans will ever be candidates for the Supreme Court. Thank goodness.

Thank you.

Charles Marsala
3 weeks ago

As a Jesuit alum of 1978 and Mayor in 2006, I remember when I walked up to the mic in 1999 at my first City Council meeting and said to myself the words of Fr. Tompson's Mass of the Holy Spirit; "Here I am Lord send me!" … A rare chance for a Jesuit alum to show the integrity we were taught by being a Supreme Court Justice, is being attempted to be stolen away by the Democrat's political agenda and a woman who does not know where she was, who invited her, how she got there, and how she got the 6 miles home. … I am disappointed in the editors of this site. You apparently wrote this before the investigation was ordered. … We, including Brett, were taught better values than are being exhibited by this column.

Will Niermeyer
3 weeks ago

I believe Dr. Ford was sexually attacked by someone but not the Judge. Let the FBI do its investigation part of which was already done and hold off on the vote in the Senate for the week as so far planned. I am sure the Judge is innocent and will be confirmed as he should be.

John Fitzpatrick
3 weeks ago

This decision by the editors is spineless and a disgrace. One of the most decent and brightest men in this country goes through a public Inquisition and instead of defending him, you sneak back into the shadows spewing pablum to defend your decision. Based on your logic, you should also call for the resignation of the Pope as there has been far worse accusations made against him with evidence being hidden from discovery. You state that there are other qualified candidates. Are you so naïve to not realize that this concerted ploy of the abortion coalition is being used to prevent such a judge from ever getting on the court? Ask yourself, how many of the people against the Judge are pro-life? Very few and that's who you now surround yourself with. Destruction by uncorroborated accusation will certainly permeate every level of society. The articles in this magazine consistently have twisted logic, are confusing, ridiculous ( Beyoncé is like the Pope) or milk toast. I do not believe you people even know what you stand for. The Church and society around us are in full scale collapse and you fiddle away, going through hurdles to use identity politics to explain the word of God. Every time I get this publication I am thankful it was a gift and I did not contribute to it monetarily.

Adeolu Ademoyo
3 weeks ago

Again, I write this with pain and sobriety, as a sober reflection on our Christian faith, as a Christian and as a Catholic parent-a father. I have children-daughters and sons and we are all as a family watching Mr. Kavanaugh’s nomination closely. My goal in America Magazine is to use my posts to consistently defend the Christian faith and Catholicism against the attempts to turn our beautiful faith, into a commercial product and into a culture; into some body of beliefs emptied of its religiosity and spirituality; and into something that can only be accessed by a group of elites in the country.

Catholicism and Christianity are not faith available only to a few privileged elites who wrongly equate their physical and material wealth, their earthly and transient power, their social and economic positions in society with Christian faith. This is why Pope Francis says in his now famous statement that how he would like a “poor church” and for the “poor.” This is why part of what have driven people-especially the young ones- out of the Churches are the blatant hypocrisy, elitism and moral bankruptcy -part of which are on display in this so-called nomination and confirmation process of Mr. Brett Kavanaugh.

Hence, the first thing that strikes me is the absence of the faith question, the religious question, the Christian question, the Catholic question in these conversations. Rather, these conversations have revealed how culture has replaced faith, or how culture is being dubiously and subtly used to replace and define faith, and Christianity. I put this within the context of the Christian and Catholic questions for two reasons. Mr. Brett Kavanaugh, from his testimonies is a Christian and a Catholic. Second, we are conducting this conversation under the platform of a Catholic journal-the America Magazine. So the questions are: What does Christianity teach us? What does Catholicism teach us that may be useful on this issue? Jesus Christ teaches us to stand by the weak, the vulnerable, the elderly, the poor, the marginalized, the abused, the invisible, the least among us. This is why Pope Francis said he wishes that the Church were a poor Church and for the poor.

So, where is our Catholicism if we vote into office those who sexually abuse women, those who openly commit adultery with porn stars and boast about it, wife beaters, those who divorce their wives at the drop of the hat and pick the next women they were dating before they divorced their wives, those who demean the poor, those who demean women, those who ask women who have been raped and sexually abused why they did not report? Where is our Christianity if we vote into office those who have open contempt for Church teachings? Where is our Christianity and Catholicism if we openly claim that we have baked the adultery, the promiscuity, the misogyny, the patriarchy, the religiously despicable behavior of people we have elected into office and that we did not mean to elect a priest, a nun, and a pastor and therefore these religiously and morally despicable persons can do whatever they like including their questionable nominations, policies and judgments?

Why do we-as Christians elect into office those who sleep with porn stars when they are married, flaunt their adultery and defend this with raw physical wealth and raw physical power? Why do some Christians appear un-able to do better than some non-Christians in simple matters of ethics, justice, morality, commitment to family, commitment to marriage, commitment, faith and loyalty to our wives etc. On one hand we appear to lament the rate of divorce in the country, we lament that young people no longer want to get married, while in the same breadth we, with our eyes wide open elect into offices people who do not have respect for family and the marriage institutions, those who see women and their wives as pawns and instruments of gratification, those who are openly adulterous and who then go ahead to nominate drunks and abusers for serious offices. Can't we see that because we as Christians have sold our consciences and faith to those who do not have respect for the Christian faith by electing them into offices, they are now having fun at us, (mocking us behind our backs since we already sold our consciences and traded the core of our faith away in deals and contracts), and making judgments that compromise the core of our Christian faith, ridiculing our faith, by nominating and appointing political operatives, religious hacks and pretenders, abusers, belligerent characters, culture warriors, and drunks into hallowed public offices? What is the definition of hypocrisy if not what we are witnessing today? I speak as a Christian male, son, husband, father, parent. Why? We all ought to wonder where our Christianity is. Where is our beautiful Christian faith?

Where is our Christianity and Catholicism if we talk about time in Mr. Brett Kavanaugh case while the same Republican led Senate, a Republican party who in the past used to claim to be the party and “guardian” of values did not even consider Mr. Merrick Brian Garland’s nomination who President Obama nominated to replace Justice Antonin Scalia’s seat at the Supreme Court and the same Republican party kept that same seat open for over a year for Mr. Gorsuch to occupy later? Is that Christianity or culture?

Where is our Catholicism and Christianity if some Republican Senators claim that Dr. Ford is credible, which logically means Mr. Brett Kavanaugh’s denial is not credible -yet same Republican Senators -who claim that Dr. Ford’s testimony is credible - cannot make this simple logical pronouncement publicly?

Why couldn't Mr. Brett Kavanaugh who said he is a Catholic, and went to a Catholic school make this simple commitment to an open FBI investigation in order for him to clear his name when he was asked if he would commit to an FBI investigation? Why couldn't he say yes, "let the FBI investigate this. I am a Catholic, my name is important to me, and more important to me than an office? That yes "let the FBI investigate" is expected of a Christian. That is what a Catholic ought to say if we are true followers of Jesus Christ. Why is Dr. Christine Ford-who does not openly espouse a faith, is freely open to an FBI investigation of the allegations and Mr. Brett Kavanaugh who openly claims to be a Christian and a Catholic is not open to an FBI investigation of these allegations?

Finally, I want to repeat I am a Catholic and my goal in this is a defense of our faith in God. So I put this question to everyone from that standpoint: Is this hypocrisy on display by the former “guardians” of faith, religious and family values in this so-called nomination process not part of the reason the youths have left and are still leaving the Church in droves especially when a morally , ethically, spiritually and intellectually bankrupt nomination is defended using the hallowed platform of God, Christianity and our beautiful faith Catholicism?

While we trust in God, and while as Pope Francis teaches us, there is hope at the end of the tunnel, as Christians and Catholics, we must remain vigilant, protect and defend our faith in one God. Christianity and Catholicism are not cultures, they are not ideologies, they are not political beliefs which are accessible only by few members of a class or available only to a some elites. Christianity and Catholicism are religious beliefs and religious faith in a living God accessible by all and available to all, not a culture, not an ideology, not a political belief. Here in lies the mystical nature and universality of Christianity, of Catholicism for Christianity (and the Christian mission and message) is about faith in a living God.

George Roose
3 weeks ago

Well said from another typical hypocrital liberal Catholic Democrat. This whole affair reminds me of our church's own Spanish inquisition. NO DUE PROCESS! I am also the Catholic father of 2 daughters and a son, just so you know.

J Brookbank
3 weeks ago

George, "the due process" is now happening in the form of the FBI investigation focused on these specific allegations.

Stuart Meisenzahl
2 weeks 6 days ago

J Brookbank
You simply do not know what you are talking about...an investigation, even a FBI investigation, does not constitute due process...it may or may not form a predicate for future due process. Further an FBI investigation reaches no conclusions ( no less than Joe Biden said "you know nothing if you think otherwise"). The FBI will only report what alleged witnesses said, not what they didn't say. This entire FBI investigation schtick is a time delay rouse. The FBI already had a copy of Ford's letter and included it in a file they sent to the Whitehouse.
Based on the failure of any referenced witness to corroborate Ms Fords allegations a judge must and would immediately toss this case out of court as lacking "probable cause". There is all this BS out there saying the alleged witnesses didn't refute Ms Ford. ......the law does not require refutation of an allegation by an accused, it requires the accuser to provide positive corroboration. Failure to do so is fatal!

J Brookbank
2 weeks 6 days ago

Stuart, I hear lots of you insisting that the FBI does NOT reach conclusions. But I have not heard ANYone say that the FBI does reach conclusions.
You are trying to win an argument by saying the other side's argument is based on a belief that the other side does not hold.

Stuart, If there is no objective value in law enforcement investigations when an allegation of sexual assault or any other illegal conduct has been made, then our ENTIRE criminal justice system needs to be overhauled to eliminate the expense of investigators of every kind.

1) Lawyers for the accused and the accuser can simply interview their own clients in their own offices.
2) If those lawyers feel like it, they can collect statements from the lawyers of a few other people.
3) All the lawyers will remind their clients that they will be fined or spend a few days in jail if, later, somebody finds out they lied
4) Whoever maintains the longest that the letter their lawyer wrote is the truth, wins.
5) The public agrees to call it good, i.e. the same as the old-fashioned law enforcement investigation.

Stuart, I should have agreed with you all along! That makes sense!

Stuart Meisenzahl
2 weeks 6 days ago

J Brookbank
You miss again: in your all together snarky and condescending response to George (see above) you equated an FBI investigation with "getting due process" . It is not!
You simply do not understand the basic legal tenet that an allegation must be supported by corroborating evidence ...viz you need Probable Cause. . A bare allegation is entitled to nothing as a matter of law. Ms Ford attempted to provide such corroboration but her alleged witnesses could not and did not provide it.
That leaves her at ground zero! The attempt now to correct this deficiency is to ask the FBI to find "something".
Unless you assume Ms Ford's witnesses have effectively perjured themselves then you can expect the FBI to just retake and report their statements. No one will determine whether the witnesses are telling the truth, or if Ford is telling the truth.
Your assumptions about the purpose of investigators depends on those investigators being given names of alleged witnesses, dates and time if alleged events, location of alleged events etc. Ms Ford only provided some names and each of those named parties had their own lawyers reply for them...not Kavanaugh's lawyers. It is importance that Ms Ford's lawyers apparently never even talked to those witnesses.

J Brookbank
2 weeks 6 days ago

Stuart, the appropriate course of action, all along, was to request that the background investigation be re-opened to address the existing credible allegations, with FBI determining credibility; that has happened; presumably, the decision-makers, presented with the findings of an industry-standard investigation of allegations of sexual assault, will add those factual findings -- whatever they are -- to the totality of information available and make a decision about whether this candidate is suited for the job.

If the facts support the candidate's innocence, then it seems likely that there will be no Democrats supporting him b/c he will be the candidate whose 1) confirmation they did not approve BEFORE the allegations were made AND 2) who displayed a tremendously unstable temperament under pressure AFTER the allegations.

I can imagine a few Republicans who supported him BEFORE the allegations voting "no", even if the facts suggest he is innocent, because of what he revealed about himself in the last hearing.

I can also imagine all Republicans supporting him, in which he case he will be confirmed.

In the event the facts support his innocence and he is confirmed, I can also imagine his supporters in the Senate and here saying "well, then that was all a waste s time".

But, of course, that would prove the Editors point:

We would still be a society that places the convenience and comfort of a powerful white man before the possibility that a woman has been harmed by that man.

Stuart Meisenzahl
2 weeks 6 days ago

J Brookbank
You state: ......."with the FBI determining credibility". You are still missing the point ..as Joe Biden put it......"The FBI reaches no conclusions" The FBI does not determine credibility!!!!!

J Brookbank
2 weeks 6 days ago

No I am not missing the point. The "with the FBI determining credibility" language came straight from the Republican members of the Senate Judiciary Committee after meeting with McConnell immediately after the end of Friday's vote.

I understand this to mean that the FBI would NOT be investigating allegations presented in non-credible ways, ie, anonymously, on social media, etc.

Again, Stuart, neither I nor anyone else has claimed the FBI makes conclusions. That established fact has no bearing whatsoever on the lomg-established role of the FBI in conducting initial and supplementary background checks of candidates for thus and other senior positions.

What gives? Why can't you let this go? If the FBI finds no facts that support the allegations, the confirmation vote will be scheduled and, unless his belligerent, juvenile conduct in the lsdt hearing cost him additional votes, he will likely be confirmed. And we will know, as a country, that we did our best NOT to appoint a sex offender to to SCOTUS. What is your problem with that, Stuart?

Stuart Meisenzahl
2 weeks 6 days ago

JBrookbank
I don't care who said it: it is still erroneous! Why do you think Joe Biden (in '92) threw such a visible fit when such nonsense was asserted.

J Brookbank
2 weeks 6 days ago

Stuart, Biden's statement --- which he has clarified through a spokesman --- was that the FBI serves a purely though expert investigative function. The FBI does NOT make conclusions or assess the credibility of the conclusions developed by others based on the FBI's findings.

If you know any investigators, you will know they are frequently frustrated when the official conclusions "seem wrong" to the investigators. Nonetheless, the investigators have no professional purview to provide a conclusion and no professional task to assess the credibility of the conclusions reached. They can bitch about it in the bullpen and then they move on to the next investigation.

In context, he was saying that he had no obligation to accept as credible the GOP conclusion, drawn from the FBI background check, that Thomas was innocent.

That is distinct from accepting that the investigatory role in completing background checks IS the standard federal background check process, followed by the need for the deciding parties to develop a conclusion and move forward or not.

You are conflating the use of the word "credible" in two separate though related contexts. A credible allegation is one thing, and a credible conclusion based on the evidence is a related but wholly distinct OTHER thing.

Those two things are so distinct that my wager is those topics are taught in completely different classes in law school and in law enforcement investigations training.

Stuart Meisenzahl
2 weeks 5 days ago

J Brookbank
Nice try: Read Biden's so called clarification......he still asserts that the FBI reaches no conclusions...he simply extends it to say reaching no conclusions includes whether or not some one else's assessment of credibility based on the FBI report is correct or incorrect. Note he does not say say the FBI reaches conclusions!!!....that includes asserted witness credibility
. Law schools teach quite simply that it is jurors who are the triers of credibility....investigators do not !
In all criminal based allegations Prosecutors and judges (not investigators) are left with reaching the Duty/obligation respecting the assessment of Probable Cause......i.e.,"ASSUMING the corroborating statements to be true , is there sufficient evidence to subject a defendant to a trial".? In the Kavanaugh case there has NOT been any corroborating evidence for anyone to assume to be true. Nor has Ms Ford named anyone who has not been interviewed to leave that door open. Quite the contrary; her best friend whom she asserts was present states that she has never even met Judge Kavanaugh.
As for your attempted distinction between "credible evidence" and "credible conclusions": the former is,as discussed, a question for Probable Cause; the latter is solely a case where a Judge who (in ridiculously rare cases) sets aside a jury verdict when he decides as a matter of law the jury could not reach the conclusion they reached.
But A judge never sets aside a jury conclusion in criminal case where the jury has determined NOT to convict.
You are juggling endlessly a number of legal concepts you simply do not understand. Your predetermined opposition to Judge Kavanaugh is in search of a virtuous reason. Be content with just being opposed for your own reasons.

Your discussion of these legal requirements is a juggling of numerous legal concepts none of which you seem grasp sufficiently except to insist that the FBI is to decide this matter.
Understand: A failure to convict is not a statement of innocence which is why there is a requirement for sufficient corroborating evidence to create "Probable Cause"....it is why it it is so fundamentally important.

J Brookbank
2 weeks 5 days ago

Stuart, I had no "pre-determined opposition to Judge Kavanaugh. I had no opinion on him, period, until I saw and heard his conduct in this last hearing. I started paying attention when I heard about the very messy process around the allegations of sexual assault. The worst you can accuse me of on that score, Stuart, is being insufficiently attentive to SCOTUS and I concur.

I grant you that I am not a lawyer and that my use of terms that have "common" meanings and legal meanings may have confused matters.

If you have an issue with the reality that the GOP said ******IN THIS RE-OPENED BACKGROUND CHECK********* the FBI would determine which allegations to investigate based on the "credibility" of said allegations, bang on. Take it up with them. I can't help you there.

Again, no one has said that the FBI reaches conclusions. You can continue to insist that others ARE saying that but you cannot make it so. Biden, as we are both saying, was very clear that the FBI does not reach conclusions. It serves an investigatory function in background checks and presents the facts to the entity requesting the background check. That entity then decides, given the totality of information available, whether that person fits the criteria and is the best available candidate for the position and either offers the job or re-opens the search.

This is a congressional hearing and a background check re-opened based on allegations of sexual assault against the nominee. The FBI is the entity which does background checks on nominees. They did background checks on this nominee. They have been asked to do a follow-up background check. They are doing it. They will present the facts as they find them. Those facts will be assessed, within the totality of information available to them, by each of those persons in receipt of the completed background check, and those persons will decide, one by one, whether to vote "yes" or "no" to confirm the candidate.

Same as it ever was, Stuart. Move on.

Richard Nikkel
2 weeks 6 days ago

an investigation that would have been completed weeks ago if the ranking member had not kept it as on October surprise. Nothing more than politics.

J Brookbank
2 weeks 6 days ago

Richard, I agree 100% that it would have been immeasurably better had there been a process in place for handing the confidential letter sent to Pelosi so that this had happened earlier in the process. Hopefully, an outcome of this chaos will be the development of rock-solid procedures that will prevent this from occurring in the future.

Stuart Meisenzahl
2 weeks 6 days ago

J Brookbank
There are rock solid procedures which have been used innumerable times for CONFIDENTIAL Information. Those procedures were deliberately bypassed...that is exactly why there was a non stop tong fight at the last hearing.

J Brookbank
2 weeks 6 days ago

Stuart, when the effectiveness of a process for investigating sexual assault allegations is contingent upon a demand that the alleged victim of that sexual assault report ONLY through a confidential process, you do not have an effective process for investigating allegations of sexual assault. No, then you have the ineffective process that has resulted in abusers not being held accountable.

Stuart Meisenzahl
2 weeks 5 days ago

J Brookbank
Red Herring alert: THERE IS NO SUCH REQUIREMENT THAT ALLEGATIONS BE MADE CONFIDENTIALLY! . Ms Ford ASKED for Confidentiality and there is a process in place to in fact handle matters confidentially ! Whoever "outed " Ms Ford breached that request for their own (not her) purposes!

J Brookbank
2 weeks 5 days ago

I misread your comment about confidentiality. You are correct.

John Sharpe
2 weeks 6 days ago

@Adeolu Ademoyo.
Paragraphs are your friend.

Jim Francis
2 weeks 6 days ago

Adeolu, as difficult as it may be, in your pain and sobriety, permit me to lay this stone at your feet, allowing you, without sin, to be the first to throw it. May Pope Francis bless you!

A Fielder
3 weeks ago

I wonder, are the editors trying to do Kavanaugh a favor by calling for his withdrawal, instead of for an investigation? Even President Trump said Ford was credible, unlike so many of the partisan comments here. Will the FBI investigation provide even more credibility and certainty to these claims and perhaps other improprieties also? Maybe throwing in the cards “for the good of the country” will also be best for Kavanaugh. Just tring to assume positive intention..,

Tim O'Leary
2 weeks 6 days ago

Fielder - you said earlier that Kavanaugh can (and should) withdraw without any harm to his current job and other activities. I and others said that would be impossible and you were being naive. Already, in USA Today, we have this today: “The U.S. Senate may yet confirm Kavanaugh to the Supreme Court, but he should stay off basketball courts for now when kids are around,”
https://www.usatoday.com/story/sports/columnist/erik-brady/2018/09/28/b…

A Fielder
2 weeks 6 days ago

First, I think Pres Trump should withdrawl the nomination as it becomes clear that Kavanaugh is not the best person for the court at this time. This is no admission of guilt.

Secondly, I was the first person to suggest that I could be naive. Michael disagreed with that conjecture. Thank you for sharing this link, I read the article and I am deeply troubled by it, not only because it confirms that I was too optimistic that this will not degenerate into something out of control, but because the person who wrote the article conflates accusations of sexual abuse of a minor, with a drunk teenager who wanted to have sex with someone his own age 36 years ago. If anything, the allegations against Kavanaugh demonstrate that he is attracted to people his own age - this is NOT the behavior of a pedophile.

I will give serious and prayerful consideration to how I will respond to the USA Today sports article.

J Brookbank
2 weeks 6 days ago

A --- I expect that, if the FBI background check does not factually support the allegations, the candidate will not be barred from any activity requiring a "clear background".

Just a question: should we allow adults whose background checks include sexual assault against persons of ANY age teach or coach our kids? It is not just a matter of preferred target but what kind of person targets anyone for sexual assault. The candidate is NOT accused of being "a drunk teenager who wanted to have sex with someone his own age". He accused of sexual assault, something altogether different.

A Fielder
2 weeks 6 days ago

J, I was trying to say that Kavanaugh is not being accused of abusing a minor, and the USA Today article does not make that distinction. I also recognize that he has been convicted of nothing, and I think that any relevant statute of limitations is expired. My disappointment with #metoo is that no matter what the gravity of the offense or when it happened the consequences are the same. Some offenses are more serious that others but there are no gradations in consequences.

I say this as someone who has made a credible allegation of sexual misconduct against a cleric. Granted, my allegation was taken seriously and the offender faced consequences, was not ordained a priest, got therapy and left his order. At some point the victim should be able to say that it is over. Both the victim and offender deserve this. Certainly it was easier for me, given that the man was disciplined and faced consequences. The #metoo movement has not grown to be able to handle any nuance yet and I think that is unjust. We need to agree on reasonable consequences for a variety of offenses. I don’t want anyone’s entire life destroyed for something a teenager did. At some point, discipline needs to be over.

J Brookbank
2 weeks 5 days ago

In general, I agree with you. (And I am very grateful your allegations were addressed appropriately and effectively.) The MeToo societal movement is very new (it will be a year old in October 2018). It took human society millenia to reach the point that victims of sexual assault were not routinely disbelieved by authorities of all kinds AND for those same authorities to acknowledge that sexual assaulters are also often the authorities. So of course there is some maturing that has to happen and will happen. To denouncement the movement -- any societal movement but particularly a movement of a demographic thst is generally less powerful and thus more often victimized -- because they are imperfect out of the gate is not only unfair, it lacks historical perspective.

I disagree that "at some point the victim should be able to say it is over", if by this you mean that the victim must process the trauma on some timeline that is satisfactory or reasonable or helpful to others, the accuser included. That is one of the realities when person commits violence against another. The perpetratir has no right to manage or control the consequences. That is just reality. Some victims will never cease to speak of it. That might not be healthy for the victim; but it is not a violation of any right of the perpetrator because it is not the perpetrator's right to silence the victim's telling of the victim's own history. Again, a consequence of committing violence at 17 or 27 or 37 or 77.

The safety of children matters more than the desire of an adult to coach. It is standard practice in childcare roles of ALL kinds that any person with an unadjudicated accusation of sexual assault against ANY person, regardless of age, should not be permitted to fulfill that role until that allegation had been investigated and resolved by the appropriate law enforcement professionals. That is just the way the world works. I believe most people understand that but you are correct: the paper could have clarified.

Many have pointed out that this candidate and his supporters made things immeasurably worse by not consenting to an appropriate investigatiin

A Fielder
2 weeks 5 days ago

J, I have not “denounced” #metoo. I am critiquing it from within, suggesting that we can do better. Also, you have TOTALLY misunderstood my statement “the victim should be able to say that it is over.” I have this gift. I want others to have it also; I realize many cannot say this, and I think that is sad. It is helpful to ME, that the offender is no longer being punished. Proportionate consequences that promote healing for the offender will benefit the victim and all of society, but in order to identify those types of consequences we need to recognize the variety of offenses and their gravity. #MeToo can not do this yet.

I’m sure many will take issue with this, but I am inclined to think that raising two daughters might play a large role in just what Kavanaugh needs.

J Brookbank
2 weeks 5 days ago

A, I did not think you specifically were denouncing MeToo but did not clarify that. I agree with your critique as reflective of this and of all new social justice movements and of all societal shifts. It takes time for a society-wide shift in consciousness to bring distilled into common terms, agreements, rules and processes. I believe it is particularly difficult to tolerate when the change in consciousness results in direct challenges to "the powers that be"; nonetheless, the shift inherent in MeToo IS happening and will continue to unfold, with the critique I share with you helping to shape it as time goes on.

Thanks for clarifying your meaning. I understand now that you were speaking in broader terms. I sense you are, in part, speaking of forgiveness and I admire that you recognize how important the response to your allegation supported your healing.

I agree with you 100% about proportionate consequences, and I do not believe all consequences are a "punishment", especially when a person has committed violence against another. The balance of focus shifts to the rights of others to be safe from the risk of violence from one who has committed interpersonal violence in the past. That is not punishing the perpetrator and that is often distinct from whether the perpetrator has "served his time". This is particularly challenging when the violence was sexual assault because the violation of another person's right and will to bodily integrity and freedom is so complex and profound. It is why consent is so critical, no matter how "small" the offense may seem.

I don't understand your last paragraph.

I

A Fielder
2 weeks 5 days ago

J, i hope that raising two daughters will give Kavanaugh the opportunity to regret and make amends for his former (widely attested) disrespectful behavior toward women, even if he does not admit anything publically.

Tim O'Leary
2 weeks 5 days ago

Fielder - sorry to hear you were abused. Are you a man or a woman? The reason I ask is your identification with the #MeToo movement.

J Brookbank
2 weeks 5 days ago

A, I sincerely hope you will not share more personal information with Tim.

A Fielder
2 weeks 5 days ago

Tim, I am a woman. I met this fellow at a Jesuit Theologate, while we were both masters students. He is not a Jesuit anymore. I am very interested in the continued investigation of misconduct at seminaries. Have you considered what young clerics think they can get away with after they learn about people like McCarrick? I have.

Tim O'Leary
2 weeks 4 days ago

Fielder - even more shocked that it was a Jesuit student. For most of my life, I have held the Jesuits in high esteem, having read the history of the order, the founder and the martyrs. I assumed the dissidents were outliers to a fundamentally noble movement. Now, I am sadly leaning to the conclusion that it is the orthodox in the order who are the outliers. I am completely aligned with you on a thorough investigation of the McCarrick shenanigans and all the seminaries. I disagree with you that any of the politically motivated "revelations" on BK have any truth behind them at all, and his admission that he was a virgin well beyond college years rings true to me, as it has no real benefit for swaying the moderate Republicans, who probably think it odd for our current hypersexualized culture . The REDEEM act gives hope to (mostly minority) teenagers not to be judged their whole lives on teenage bad behavior. It was Cory Booker's legislation. In his biobook, he admitted to unwanted groping of a girl when they were both teens. Now, he has changed his tune. https://www.booker.senate.gov/?p=general&id=33

A Fielder
2 weeks 4 days ago

Actually Tim, he was quite "orthodox" in his beliefs, and was working on an STL prior to his departure. He just had an entitlement problem, was a skilled manipulator with no reservations about emotional blackmail. After his ordination as a transitional deacon, he probably figured canon law would protect him. Since he already had a PhD, he anticipated that, at priestly ordination he would become "so powerful that no one will be able to stop me." There were also cultural differences involved. I got the impression that most Americans were actually celibate; this fellow was from another continent. I am convinced that the inability to enforce the discipline of celibacy is a global problem, and not limited to gay men.

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