Brett Kavanaugh: A Black Mark On The Supreme Court? By Jacob G. Hornberger
(2018-09-28 at 13:57:02 )

Brett Kavanaugh: A Black Mark on the Supreme Court? by Jacob G. Hornberger

Like many others, I watched the congressional hearing yesterday involving President Trumps nominee to the Supreme Court, Brett Kavanaugh, who currently serves as a judge on the D.C. federal court of appeals.

My conclusion after watching both Kavanaugh and Christine Blasey Ford testify?

Congress should either conduct a more extensive investigation into Fords accusation or refuse to confirm Kavanaughs nomination.

One of the legitimate functions of government is to provide an independent forum in which people can resolve disputes that they have been unable to resolve consensually.

That is what the judicial branch of government is all about.

In civil cases, one person is able to sue another person and have a jury or a judge decide who should prevail. After the trial is over and the trial judge has entered a judgment, the losing side has the right to appeal the decision to an appellate court. On the federal level, that means one of the various courts of appeal. Whoever loses that decision is entitled to appeal the decision to the United States Supreme Court.

Even at the state level, the Supreme Court can play a critically important role. If a state supreme court issues a ruling that involves a constitutional issue, the losing party has the right to appeal to the United States Supreme Court on that issue, and the Court has the power to overturn the state courts judgment.

The same principles apply in criminal cases. A person who is convicted of a crime in federal court can appeal all the way to the Supreme Court. A person who is convicted of a crime in the state system can also appeal all the way to the United States Supreme Court if his conviction involves a United States constitutional issue.

Given the importance of the Supreme Court in the United States of Americas governmental system, it is critically important that there be as few questions as possible regarding the integrity of Supreme Court justices.

Judge Kavanaughs big problem yesterday was Christine Blasey Ford, his accuser, who has accused him of sexually assaulting her 36 years ago when they were both in high school.

I was a trial lawyer for 12 years in Texas before joining the libertarian movement. During those 12 years, I saw lots of witnesses testifying in court. I do not think I have ever watched a more credible witness in all my life than Christine Blasey Ford.

She came across as honest, truthful, and genuine. It came across loud and clear that her motive for disclosing the attack on her 36 years ago had nothing to do with politics and instead everything to do with what she perceived to be her "civic duty" - i.e., ensuring that Congress understood that they were about to confirm a person who sexually assaulted her to the highest court in the land.

It was also clear that she did not relish being in the public eye and was, as she stated, terrified to be testifying.

In his testimony, Kavanaugh came out blasting, literally screaming about how his life had been ruined by the confirmation process.

His demeanor shocked me because it was not one that I would have expected from a judge on a federal court of appeals.

Sure, it is true that an innocent person would be expected to react angrily and indignantly to a false accusation, but I got the distinct impression that Judge Kavanaugh was more engaged in bluster than righteous anger and indignation.

When I was lawyer in my hometown of Laredo, Texas, there was a local lawyer who employed bluster as part of his trial strategy.

Whenever things were going badly for him and his client in the courtroom, the lawyer would go on a tirade of interrupting adverse witnesses with a constant stream of loud objections, most of which would be overruled by the judge. It did not matter to the lawyer.

What mattered was that he was distracting peoples attention away from the effectiveness of the witness testimony. Then in jury argument, the lawyer would resort to a loud, blusterous tone of voice, practically screaming, hoping that he could bluster the jury into ruling in favor of his client.

As I watched Kavanaugh testifying yesterday, I could not help but think about that lawyer in Laredo, especially given Judge Kavanaughs evasiveness in answering some of the panels questions.

In fact, given the limited scope of yesterdays hearing - which involved only Ms Fords accusation - I could not understand why Judge Kavanaugh would not limit himself to addressing that accusation by forcefully denying it (which he did) instead of also going off a tirade against the confirmation process which, as nasty as it might have been, had nothing to do with Christine Blasey Ford and the accusation she was leveling against Kavanaugh.

I could not help but wonder if Judge Kavanaughs angry tirade against the confirmation process was intended to distract attention away from the effectiveness of Ms Fords testimony.

One of the most fascinating aspects of the hearings was when Judge Kavanaugh testified that he had not watched Ms Fords testimony because he had been working on his own statement.

I thought: If someone is making up a story about you, would you not want to watch her testimony so that you can show why and how she is lying???

Some of the Republican panelist suggested that since it is simply a matter of "he-said, she-said," Judge Kavanaugh should be confirmed.

They are saying that Ms Ford failed to overcome the principle of "the presumption of innocence" that attaches to criminal prosecutions.

Kavanaugh himself, along with Republican members of the committee, continually emphasized that there was no "corroborating evidence" to support Ms Fords accusation.

They miss two important points. First, this is not a criminal proceeding. It is a nomination process. Second, when two boys force a girl into a room and assault her, it is unlikely that there is going to be another witness in the room.

The very nature of this type of crime is the lack of corroborating evidence. Who else but the people in the room know what happened??

That is when things turn on the credibility of the witnesses inside the room. And again, that is where Judge Kavanaugh has a big problem. Ms Fords demeanor and testimony had truth written all over them.

Moreover, the fact that other people in the house do not remember the event should not surprise anyone. Since Ms Ford left the house without saying anything, there is no reason why anyone else in the house to have fixed the event in his memory, especially if it was one of many parties over a multi-year period of time.

What I also found fascinating was the obvious reluctance of Judge Kavanaugh and the Republican panelists to subpoena the third person in the room, Judge Kavanaughs friend John Judge.

He is obviously a critically important witness. He is the other person in the room!! He is Judge Kavanaughs friend!!

Why would Judge Kavanaugh not want him subpoenaed to confirm his version of the events?? Why wouldn the Republican panel members not want him there to do so??

Judge Kavanaugh continually emphasized that Mr. Judge had sent in a letter denying that the assault had taken place, under what Judge Kavanaugh said was "penalty of felony."

I could be wrong but I seriously doubt that an unsworn letter subjects someone to a felony perjury indictment. When I was practicing law, a perjury indictment required either sworn testimony in court or a sworn affidavit. An unsworn letter did not count.

My father was also a lawyer. He once told me that he had carefully interviewed a witness and knew exactly what he was going to say when he called him to the witness stand. When the man took the witness stand, he proceeded to tell a completely opposite story. My father asked him to confirm that what he was saying then contradicted what he had said the day before. The man said yes and explained, "Yesterday, I was not under oath. Today I am."

The congressional panel had an absolute moral duty to subpoena Mr. Judge to testify under oath rather than rely on his unsworn letter. He should have been required to state carefully under oath his recollection of the events. He should have been subjected to cross examination by the members of the panel. The fact that Mr. Judge escaped to a beach house in Maryland, in what may have been an attempt to avoid a subpoena does not look good at all.

Yesterday, the American Bar Association, which had previously recommended Judge Kavanaughs appointment to the Supreme Court, issued a statement saying that the Judge Kavanaugh appointment should be now be delayed pending further investigation.

The ABA is right. The American people deserve justices on the United States Supreme Court around which there is not even the remotest appearance of impropriety.

Judge Brett Kavanaugh does not meet that standard!!!

Printed here with permission from Mr. Jacob G. Hornberger of The Future of Freedom Foundation!! Their Great Website!!