Ken Johnston and Joe Yurgine: Twin take on a tumultuous topic

September 30, 2018

Ken: This week, there only is one story cooking at a boil, one tumultuous topic of the tweetery: Thirty-six years ago, Judge Brett Kavanaugh, the Donald Trump Supreme Court nominee seeking approval by the Senate, was a high school molester; the accusation was revealed in what we were told, at first, was an anonymous letter written to Sen. Dianne Feinstein. This on the eve of confirmation after he had emerged unscathed during extremely partisan hearings. My first thought is we have been here before. An interesting fact I learned when bomb thrower Sen. Harry Reid took to the Senate floor to wrongly accuse then candidate Mitt Romney of having not paid taxes for 11 years (an unnamed source told him so) — Congress persons are not tortuously liable for defamation when speaking on the Senate floor. They can and do just make stuff up. Would senator’s honor prevent Feinstein from falsely accusing teenage Kavanaugh of sexual misbehavior? I gotta think probably not at a time when Democrats would do about anything to block the nomination. Now, as the #MeToo movement is in ascendency, here comes a victim from school days aiming to destroy him. This situation is exactly why the Dem party set up a precedent by sacrificing the lamb Al Franken for groping a woman wearing a flack vest.

Joe: It’s Sept. 20, 2018, and by the time these remarks are printed in the Daily Journal, they might be archaic and dated, ready to be assigned to the landfill of historical commentary. If I was assigned by the Justice Department to pick a fair and impartial jury to decide if the alleged sexual assault incident involving Christine Blasey Ford and Brett Kavanaugh did in fact occur, you would be summarily excused from serving, in a heartbeat. Admit it. Like the GOP congressmen, you already have decided this female cannot be believed and the incident did not happen. That is the problem with this case. No objectivity. There also is a rush to judgment by the GOP congressmen, a desire to go home and campaign, with no real attempt to determine truth. So, I will simply say this. There is drilled into kids’ minds by parents at an early age, that youth and drunkenness are no excuses for bad behavior and criminal activity. No one will cut you slack. I’ve had to go to court with minors charged criminally with possessing and smoking a joint, which is far less serious than an alleged sexual assault by a 17-year-old drunk teenager of a 15-year-old female. It boggles my mind to think Kavanaugh would have forgotten that type of incident and if he was so impaired by booze that he has no memory of his actions, you don’t get a pass when intoxicated. Had Kavanaugh simply acknowledged a past misdeed as a teenager like saying “Yeah, I was inebriated and got a bit carried away, for which I’m sorry,” we probably would not be having this discussion. He would already have been confirmed. Instead he has denied everything and calls the female untruthful. Consequently, if and when she testifies and one believes her testimony using the “preponderance of the evidence” standard which requires 51 percent certainty, then the conclusion must be that he has lied, in which case he should not be confirmed. Without even tallying up Kavanaugh’s “good” and “bad” actions over his lifetime, would you want a justice on the Supreme Court without integrity? By the way, cases of an alleged sexual assault of a minor that occurred some 30 years ago and went unreported at the time remain of some legal consequence for it is my understanding there are no statutes of limitations for that type of case in the state of Maryland.

Ken: These are highly partisan times, and this particular case about putting a conservative constructionist on the Supreme Court is totally political. Senate Democrats openly wish to delay Judge Kavanaugh’s confirmation until after the upcoming election because should Dems win control of the Senate, there never will be approval for him or any other Trump nominee. Examining your hypothetical analysis, the veteran judge would know that if the assault had occurred as charged, more witnesses would surely pop up and to deny now would expose him as a liar; you would not, in any case, expect him to cop to something he believes didn’t happen; therefore his denial has to indicate his honest recollection. As the attorney representing Dr. Ford, to the benefit of your client’s case and the Dem party, you are obliged to dismiss, if possible, all conservatives and Republicans from the jury pool and empanel only liberal activists and committed Democrats. But would that be fair and impartial? Since you bring up the possibility of criminal prosecution, based on what we know now and given the presumption of innocence and the beyond a reasonable doubt standard of proof, would even an all-Democrat jury have the chutzpah to opt for guilty? Y(ou can bet your sweet little long eared equine they would). Now, for sure, we don’t know what will come to light as this chaos plays out, but suppose there continues to be no corroborating witnesses and no further facts, we have simply she charges assault and he says it didn’t happen. Doesn’t that amount to a 50/50 tie? An important point is that up to now, the Kavanaugh biography, as it has been presented, has shown a different behavior pattern from the repeatedly misbehaving alpha males like Harvey Weinstein and Matt Lauer, Roger Ailes and Bill O’Reilly, et al.

Joe: When Justice Anthony Kennedy was appointed to the U.S. Supreme Court by President Ronald Reagan in 1987 and then confirmed by the U.S. Senate, the vote was 97-0. He was looked at by everyone as a superb choice. The senators unanimously felt then that he had what it takes to constitute a good justice, and they were right when looking back at his record and accomplishments. Unfortunately, along came Mitch McConnell who changed all of that. As you indicate, appointments to the high court (most notably reflected by the handling of the Merrick Garland appointment and now Kavanaugh) are totally political. Garland was the chief U.S. Judge of the U.S. Court of Appeals in D.C. and had graduated summa cum laude from Harvard College and magna cum laude from Harvard Law. He was looked at as a superb choice. What the GOP senators are doing is carrying on and approving an offensive and repugnant process of appointment, based not on the candidate and what constitutes a good jurist (his or her integrity, ability, qualifications, etc.) but rather an agenda on what’s in it for them, their conservative party and votes on specific issues. Unless the upcoming elections change this, it’s a process we all have to live with. In any event, the news this week will be robust. It will be interesting to see and hear what Ford and Kavanaugh have to say and the impact it will have on the votes of the senators.

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