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Thinking through the Kavanaugh Case

Core Issues

Did Kavanaugh sexually assault Ford?

What evidence supports this claim?

Christine Ford’s Statement
When I got to the small gathering, people were drinking beer in a small living room on the first floor of the house. I drank one beer that evening. Brett and Mark were visibly drunk. Early in the evening, I went up a narrow set of stairs leading from the living room to a second floor to use the bathroom. When I got to the top of the stairs, I was pushed from behind into a bedroom. I couldn’t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them. There was music already playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding his hips into me. I yelled, hoping someone downstairs might hear me, and tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack. They both seemed to be having a good time. Mark was urging Brett on, although at times he told Brett to stop. A couple of times I made eye contact with Mark and thought he might try to help me, but he did not.

Kavanaugh likes beer
I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes, others did… I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.

What evidence refutes this claim?

Brett Kavanaugh

  • “I denied the allegation immediately, categorically and unequivocally”
  • “I was not at the party described by Dr. Ford”
  • “I’m here today to tell the truth. I’ve never sexually assaulted anyone. Not in high school, not in college, not ever.”

Mark Judge
Mark Judge denied under penalty of felony that he had witnessed an assault

PJ Smith
P.J. Smith, another person allegedly at the party, denied that he was there under penalty of felony

Leland Kayser
Professor Ford’s lifelong friend, Leland Kaiser, indicated that under penalty of felony she does not remember that party. And Ms. Kaiser went further. She indicated that not only does she not remember a night like that, but also that she does not even know Brett Kavanaugh

“Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present with or without Dr. Ford” (Keyser’s attorney)

Other partygoers

  • Another unnamed person stated he does not recall the party
  • Since these allegations have become public, not a single person has contacted her to say I was at the party that night (Ford Testimony).

Diary entries
The event described by Dr. Ford presumably happened on a weekend because I believe everyone worked and had jobs in the summers… [M]y calendars show that I was out of town almost every weekend night before football training camp started in late August.

The only weekend nights that I was in D.C. were:

  • June 4: I was with my dad at a pro-golf tournament and had my high school achievement test at 8:30 the next morning.
  • Saturday night, Aug. 7: I was at a small gathering at Becky’s house in Rockville with Matt, Denise, Lori and Jenny.
  • Weekend of Aug. 20 to 22: I was staying at the Garretts’ with Pat and Chris as we did final preparations for football training camp that began on Sunday the 22nd… that weekend before a brutal football training camp schedule was no time for parties.

So let me emphasize this point:
If the party described by Dr. Ford happened in the summer of 1982 on a weekend night, my calendar shows all but definitively I was not there.

What evidence has been excluded?


NOTE: Ford claimed legal professional privilege & notes have not been provided to committee. As such, they cannot be be relied upon.

Therapy notes

NOTE: Ford claimed medical privilege & notes have not been provided to committee. As such, they cannot be be relied upon.

On Credibility


  • Academic

Incentive to lie

  • Political bias against Trump
  • Prevent a Conservative majority on Supreme Court
  • Fame & success in left-leaning Academic circles

History of deceit


How credible was Kavanaugh


  • 12 years as a Federal Court judge

Incentive to lie

  • Become a Supreme Court Justice
  • Preserve his reputation
  • Avoid prosecution

History of deceit


Did Kavanaugh lie under oath?

about drinking to excess

to the point of sexually assaulting women then blacking out

Suggested by Democrats

Denied by BK

No corroborating evidence

To any other point

Suggested by Democrats

Admitted (partially) by BK

Dispute as to extent

about boofing

about the devil’s triangle

about the Ralph Club

Did Ford lie under oath

about the polygraph




about flying




about second front doors




Ancillary Issues

Ancillary issues are irrelevant

Issues which would have never arisen but for an allegation which was not substantiated should not be considered. Rewind the clock back to where we were before this allegation and press ‘play.’

Ancillary issues are relevant - AGAINST

…the fact he was a jock at college


No other judge in history has been been judged for the sins of their youth


…his temperament in the hearings was not judicial

…and that is perfectly understandable

Kavanaugh on 27 September 2018 was an accused, not a judge - and should be treated as such.

*I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good.*


We concluded that his integrity, judicial temperament, and professional competence met the highest standards for appointment to the court

American Bar Association

…he is a divisive choice

He is a moderate consi

…he displayed partisanship

…and therefore cannot serve as a Supreme Court justice

Is Ruth Bader Ginsburg (or any of the other justices) not partisan?

…understandably, in the context of a heated partisan battle

As I explained that night, a good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy. As Justice Kennedy has stated, judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution compel the result. Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners. In each case, I have followed the law. I do not decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.

As Justice Kennedy showed us, a judge must be independent, not swayed by public pressure. Our independent judiciary is the crown jewel of our constitutional republic. The Supreme Court is the last line of defense for the separation of powers, and for the rights and liberties guaranteed by the Constitution.

The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.


…as women may be discouraged from coming forward with allegations

Ancillary issues are relevant - FOR

We cannot give in to mob rule

Unsubstantiated serious allegations will become the norm in political oppositions

TRUTH must prevail (for good and bad)

NOTE Just as a substantiation of the claim would end Kavanaugh’s career, the non-substantiation of the claim must NOT end his career.

General Issues

What is ‘sexual assault’?

Attempted Rape

Sexual contact
an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.


Should we believe all women?

NO. Sometimes women lie or are mistaken

I have a dream that my little children will one day live in a nation where they will not be judged by their sex or gender identity but by the content of their character #BelieveTruthfulWomen #BelieveTruthfulMen

Does the fact he was a minor matter?

YES and his age at the time means that this claim should not be pursued

Minors should be afforded some confidentiality for their wrongdoing.

Children bear less responsibility for the acts, which is why the are tried as minors. Minors should not be dogged by the sins of pre-adulthood.

NOTE: No one seems to be making this claim

YES Claim should be pursued BUT age is a relevant consideration

NO His age at the time is irrelevant

Why not?

Does the passage of time matter?

YES The passage of time means this claim should not be pursued

…because it shows that she has made it up

Counter: Sexual abuse allegations by nature arise often decades after the event - therefore this claim is WEAK.

…because the person has turned their life around since

NOTE: This claim could work as a plea in mitigation where a person admits wrongdoing but pleads that s/he is reformed. In this case, Kavanagh denies this ever happned and this line is therefore not applicable.

…because the memory of the witness has been affected by time

…because the statute of limitations for that crime has expired

NOTE: while there is no limitation on sexual crimes in Maryland at present, back in 1982, the statute of limitation was 12 months

…because the passage of time undermines the accused ability to mount a defence

YES Claim should be pursued BUT the passage of time is a relevant consideration

…because the person has turned their life around since

NOTE: This claim could work as a plea in mitigation where a person admits wrongdoing but pleads that s/he is reformed. In this case, Kavanagh denies this ever happned and this line is therefore not applicable.

…because the memory of the witness has been affected by time

NO The passage of time does not matter at all

Sexual abuse allegations by nature arise often decades after the event. The passage of time is irrelevant.

Natural Justice

Does natural justice apply to this hearing?

YES - All government processes, judicial or otherwise must apply to the principles of natural justice

NO - This is not a court of law, so anything goes

Congratulations. You won a free ebook:

Does the presumption of innocence apply?

YES Accused is presumed innocent until proven otherwise

Had you been on Tom Robinson’s jury, you would have voted to hang him #BelieveMayellaWest

Who has the onus of proof?

The accuser

Correct answer

The accused

Have you considered moving to NOrth Korea?

What is the burden of proof?

Beyond reasonable doubt (>90%)

Preponderance of the evidence (>50%)

An allegation is all that is needed #BelieveHer (>1%)

Was due process afforded?

…to Kavanaugh

Was procedural due process complied with?

Was the right against self-incrimination afforded?

NOTE: By giving evidence in a non-criminal setting on a criminal allegation, Kavanaugh’s constitutional right against self-incrimination was jeopardised. However, as he did so willingly, he effectively waived that right.

Was a presumption of innocence afforded?

…to Ford

Was Ford’s right to confidentiality breched?


Christine Ford never sought the spotlight. She indicated that she was terrified to appear before the Senate Judiciary Committee, and she has shunned attention since then. She seemed completely unaware of Chairman Grassley’s offer to allow her to testify confidentially in California. Watching her, Mr. President, I could not help but feel that some people who wanted to engineer the defeat of this nomination cared little, if at all, for her well-being.

Prof. Ford testified that a very limited of number people had access to her letter, yet that letter found its way into the public domain. She testified that she never gave permission for that very private letter to be released, and yet here we are. We are in the middle of a fight that she never sought, arguing about claims that she wanted to raise confidentially.


[T]he fact remains, Mr. President, someone leaked this letter against professor Ford’s expressed wishes. I suspect regrettably that we will never know for certain who did it. To that leaker who I hope is listening now, let me say that what you did was unconscionable. You have taken a survivor who was not only entitled to your respect but who also trusted you to protect her, and you have sacrificed her well-being in a misguided attempt to win whatever political crusade you think you are fighting.



Public interest overides her right to privacy


Should these hearings have been public or private?



Should the matter have been referred to an FBI investigation?

NO The senate committee’s investigative powers are more than enough


…and the one week investigation is sufficient

…and the one week investigation is insufficient or a sham

…because we hope the matter will get delayed until after the mid-terms so that we can block the nomination

Kudos for your honesty!

Is either Kavanaugh or Ford knowingly lying about the assault?

Kavanaugh is lying

…since he assaulted Ford

…on issues other than the assault

Ford is lying

…since she knowingly falsely accused Kavanaugh

…on issues other than the assault

Neither are lying. One is mistaken

…as Ford was assaulted but not by Kavanaugh

…as Kavanaugh assaulted her but blacked out and forgot about it.

Should Kavanaugh be confirmed to the court if the FBI finds corroborating evidence?

Nominate him anyway

No one on the right is arguing this position

Nominate someone else and remove him from Federal Court

Consider criminal prosecurtion

NOTE Statute of limitation issues

Should Kavanaugh be confirmed to the court if the FBI finds NO corroborating evidence?


…because he is aptly qualified

…because we need to make sure we don’t give in to mob rule


…because he’s a white-male cisgender hetrosexual republican

…because regardless of the findings, he is still a rapist #BelieveAllWomen

…because he was a jock in high school

…because of his temperment (he got angry when he was wronfly accused of being a rapist)

…because he was partisan (in blaming the Democract senators who set him up)


What should we do differently next time this happens?

Keep the hearings confidential

Not accept any new matters for consideration past a deadline

It was great. Let’s do the same time again next time.