The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized – Fourth Amendment, US Constitution.
The Democrats have certainly embarrassed themselves during the Kavanaugh hearings, from “mic checking” to shout down your opponents, to political grandstanding to gain favor for future elections, to shady plots involving big money donors advancing progressive agendas.
Overturning Roe v. Wade, and the latest fraudulent $MeToo smear have led the way in the fight to stop Judge Brett Kavanaugh from being appointed to the Supreme Court.
His nomination will not turn on this, however.
Mr. Kavanaugh apparently drinks beer, uses credit cards, has coached basketball teams, loves the Washington Nationals, and is either a sexual assaulter or a soup kitchen volunteer. All of this is stupid of course and has nothing to do with the nominee’s basic fitness as a judge.
Although Mr. Kavanaugh should be appointed to the SCOTUS, for Americans, the real problem is his historical disregard for the 4th Amendment.
Rather than the Court limiting the unconstitutional actions of the branches of government, Congress consistently ignores economic substantive due process–read “property rights”–which hasn’t been recognized for nearly a century; the 9th and 10th Amendments are dead letters, the 4th Amendment is on life support, and the entire 20th century serves as evidence of the Court’s willingness to rubber stamp unchecked executive power.
Death of Common Law
Common law is inherently decentralized; it evolves locally and slowly creates universal precepts (i.e. prohibitions on murder) only when there is near unanimity of agreement across time and geography. The gradual imposition of positive civil law in America, along with the federalization of vast areas of law that once were determined locally, created a federal judiciary that is unworkable and unresponsive to millions of Americans. For the vast majority of us, recourse against the federal government for its lawless acts is an illusion– we don’t have 10 years and millions of dollars for lawyers.
In a recent lecture, Judge Andrew Napolitano noted that Judge Kavanaugh had established a record of supporting government surveillance on Americans, even when there was not probable cause to believe a crime was being committed. His support of government power, in this case, is supported by the Patriot Act, one of the most anti-Fourth-Amendment pieces of legislation passed in recent decades.
Napolitano said in the lecture, “What young lawyer was the Scrivener when they were putting together the Patriot Act?”
It was Brett Kavanaugh.
Anthony P. Sacco says
“Common Law” is an interesting subject that goes back to England when penalties for the crime were different in all the counties in England.
If you stole in one county the penalty was a slap on the hand with a stick, in another county, you stole you were sent to jail, in another county you were hung for the same crime of stealing. These different laws did not go so well in England so they changed it so all counties follow the same penalty so-called “common law”.
When the English settled in Virginia way back when they called themselves the “Common law state” that still identifies itself to this day as “The Common Law State” that is ignored by the rest of the country and replaced by the U.S. Constitution and the amendments to it.
Ray Otton says
So, SCOTUS Thinks Freedom Un-American?
Would some please stop me!
Paul Plante says
All of the 13 original British colonies that became the original “United States of America” were subject to the English common law, which is the subject of §14 of Article I of the New York State Constitution, entitled “Common law and acts of the colonial and state legislatures,” as follows:
§14. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same.
But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.
end quotes
As to the Common law, it is a body of unwritten laws based on precedents established by the courts.
Common law influences the decision-making process in novel cases where the outcome cannot be determined based on existing statutes, such as fence-line disputes, or whose oxen was gored and who was responsible.
The U.S. common-law system evolved from a British precolonial tradition that spread to North America and other continents during the colonial period, as is clear from §14 of Article I of the New York State Constitution above here.
Common law, also known as case law, relies on detailed records of similar cases and statutes because there is no official legal code that can be applied to a case at hand.
Where that has broken down, especially recently, where the money one has determines the “justice” one gets, the judge presiding over a court case determines which precedents apply, and while the precedents of higher courts supposedly are binding on lower courts to promote stability and consistency in the U.S. legal justice system, the lower courts can choose to modify or deviate from precedents if the judge feels they are outdated, and lower courts can also choose to overturn the precedent, or totally ignore it.
The difference between common law and civil law is that civil law is a comprehensive, codified set of legal statutes created by legislators, where a civil system clearly defines the cases that can be brought to court, the procedures for handling claims and the punishment for an offense, so that judicial authorities supposedly use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions.
While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries and similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation.
As has been said above, in some instances, precedent depends on the case-by-case traditions of individual jurisdictions so that as a result, elements of common law may differ among districts.
As judges present the precedents that apply to a case, they can significantly influence the criteria a jury uses to interpret a case.
Historically, the traditions of common law have led to unfair marginalization or empowerment of certain groups, those without lawyers, money or clout, and in New York state today, that remains the case.
As to the common law in pre-Revolutionary America, the Commentaries on the Laws of England were an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769.
The work was divided into four volumes, on the rights of persons, the rights of things, of private wrongs and of public wrongs.
The Commentaries were long regarded as the leading work on the development of English law and played a role in the development of the American legal system.
They were in fact the first methodical treatise on the common law suitable for a lay readership since at least the Middle Ages.
The common law of England has relied on precedent more than statute and codifications and has been far less amenable than the civil law, developed from the Roman law, to the needs of a treatise.
The Commentaries were influential largely because they were in fact readable, and because they met a need.
The Commentaries are often quoted as the definitive pre-Revolutionary source of common law by United States courts, and opinions of the Supreme Court of the United States quote from Blackstone’s work whenever they wish to engage in historical discussion that goes back that far, or farther, for example, when discussing the intent of the Framers of the Constitution.
Ray Otton says
Paul, please try some Short Then Fine Ululations for a change of pace, maybe wake things up around here, ‘cuz the prose is………………………………………………..zzzzzzzzzzzzzzzzzz.
Paul Plante says
Sorry to overtax your mental capacity, Ray Otton, but take heart in the fact that it was not intentional, in that I did not add words to what I wrote with the specific thought in mind of overtaxing your specific mental capacities.
I actually was responding to the post by Anthony P. Sacco above here.
I did see your plea above here, “(W)ould some please stop me,” but it was so abstruse and esoteric to me that I was at a loss as to how to respond or lend you any aid or assistance, so I passed it by and instead dealt with the far easier task of responding Anthony P. Sacco on the common law, a far easier task that I could handle, as I saw it, anyway.
And let me apologize to you in here for overtaxing your mental capacity, but again, let me assure you that was not my intent.
As to the “zzzzzzzzzzzzzzzzzz,” Ray Otton, no offense, but I think that has a lot more to do with your advanced age then it does to my writing.
Do as I do, Ray Otton, and try taking a nap I the afternoon to refresh yourself.
I’m thinking you will find it quite refreshing and beneficial, to boot.
Ray Otton says
Paul, a sense of humor is a wonderful thing.
You should get one.
Paul Plante says
So it is, Ray Otton, especially as one gets older.
That’s why I have never lost mine.
Pity those who have.
Paul Plante says
And not to let a rich teaching opportunity slip by us here, Ray Otton, if someone was to ask me for a concrete example of “erudition,” defined as “the quality of having or showing great knowledge or learning; scholarship” from the real world, I would point them to your excellent usage of the word “ululation” is a very fine example of a short, concise sentence serving as the lead in to a good short story, as follows:
“Paul, please try some Short Then Fine Ululations for a change of pace, maybe wake things up around here.”
As you know, Ray Otton, the word ululation itself is very hard to use in a sentence in this country, because nobody really ululates over here.
For those who don’t know the word, and hence, cannot appreciate Ray Otton’s command of the vocabulary, ululation is a howling or wailing sound.
In many cultures, the sound of ululation is common at a funeral, while in others the mourners only sniffle quietly.
Ululation is often mournful and it’s always full of emotion.
The venerable Wikipedia tells us ululation, which comes to us from the Latin word ululo, is a long, wavering, high-pitched vocal sound resembling a howl with a trilling quality.
It is produced by emitting a high pitched loud voice accompanied with a rapid back and forth movement of the tongue and the uvula.
Paul Plante says
And again, no offense intended, Ray Otton, but even a master at prose like the great Hemingway himself would not be able to jazz up a dissertation on the common law, a dull and dry subject in the best of times, to the point of where it wake up just about anyone in America, let alone here in the CCM.
Can you imagine Hemingway writing a novel about the common law and making it into a best seller?
I can’t.
I have read Blackstone on the subject, and from my perspective, it was a tough slog – pretty boring stuff, all in all.
Without discipline, it is a subject that can readily put one to sleep, as is Locke, for that matter, along with Thomas Hobbes, who is a real droner, so no wonder Hemingway passed it by and wrote about red ponies, instead.
Susan says
“Mr. Kavanaugh … is either a sexual assaulter or a soup kitchen volunteer. All of this is stupid of course and has nothing to do with the nominee’s basic fitness as a judge.” Really, Wayne? Your position is that if it were true that Frat Boy Kavanaugh is a legit serial sexual assaulter, that fact would be a “stupid” reason for rejecting his nomination and has “nothing to do” with his fitness to be a justice on the Supreme Court of the United States? Here’s what I think, Wayne. If Kavanaugh, even at the tender age of 17, forcibly restrained, and dry humped a 15 year girl, putting her in fear for her life, he lacks the moral turpitude to be a Supreme Court Justice. Law is not science. Cases are not decided solely upon parsing through language in decisions deemed to be binding precedent. Many Supreme Court decisions require justices to issue opinions that reflect the evolving standards of the community. Supreme Court cases regarding weighty issues that divide our nation, such as abortion and capital punishment, have relied heavily upon the collective view of the justices about evolving standards of morality and decency. It has only been relatively recent that the Supreme Court held that executing juveniles, and the severely cognitively impaired, is unconstitutional. Both decisions were based upon a view that the moral compass of Americans had shifted to the point that the notion of the government killing kids and the mentally retarded for their criminal conduct offended the conscience of the majority of Americans. The concept of the “collective conscience” may be fluid, but I think that most Americans would agree that sexual assault = bad. Therefore, sexual assaulters should not be sitting on the Supreme Court.
Note: Of course it’s stupid, because no one will ever know for sure what happened, if anything happened 27 years ago at party nobody can be sure they were even attending. Dr. Ford says she was 15 at the time but can’t rightly remember the year (she obviously doesn’t work in the Math department). There is no video evidence, no audio evidence, no photos, and no witnesses. If that changes, then I will alter my opinion of Judge Kavanaugh. But what you are asking for is a banana republic where any accusation, even a false one is enough to convict (see the Duke Lacrosse Team, more preppies), rather than a nation of laws and statutes–a presumption of innocence until a preponderance of evidence can prove otherwise. Or as Karen Gay would say, “What about the beef?”.
Paul Plante says
Not to put too fine a point on it, Susan, but Brett Kavanaugh is already a federal judge with lifetime tenure.
Susan says
That is a good point, Paul. However, as someone who worked with several colleagues who went on to become federal judges, and even having been requested to be a character witness for nominees to the federal bench, I understand very well the superficial scrutiny district court judges receive. Supreme Court nominees have much greater influence over the shaping of jurisprudence for the entire country. Frankly, they should be raked over the coals, and their character questioned.
Paul Plante says
Ah, yes, Susan!
But that raises the obvious question, and I am sure you must have anticipated it, what about Sonia Sotomayor?
She was subjected to virtually no scrutiny, at all.
I don’t recall that she was ever questioned about anything in her judicial record the way Kavanaugh has been by people like Dianne Feinstein, who, as you recall, came out in the Los Angeles Times article “Dianne Feinstein: Why I’m voting ‘no’ on Brett Kavanaugh’s Supreme Court nomination” by Dianne Feinstein, on Sept. 16, 2018, as follows:
Democrats on the Senate Judiciary Committee entered the confirmation hearings for the Supreme Court nominee Brett Kavanaugh with concerns about his record and his views.
After four days of testimony and questions, those concerns remain — and in some cases have increased considerably.
Setting aside the serious problem that Republicans withheld millions of documents related to Judge Kavanaugh’s years in the George W. Bush White House, our biggest apprehensions have to do with the very real-world implications of putting him on the Supreme Court.
We already knew that Judge Kavanaugh held highly ideological views on the 2nd Amendment, women’s reproductive rights and the executive power of the presidency.
Judge Kavanaugh’s testimony shed new light on these positions and on his loyalty to President Trump and his political agenda.
Supreme Court justices should not be an extension of the Republican Party.
They must also have unquestionable character and integrity, and serious questions remain about Judge Kavanaugh in this regard, as indicated in information I referred to the FBI.
For these and other reasons detailed below, I strongly oppose Judge Kavanaugh’s nomination to the Supreme Court.
end quotes
Senator Feinstein then did go on to rake Kavanaugh over the coals in this article, as you and I both say should be the case, although that raking over the coals should really have been done when Kavanaugh was on his way to being a district judge, because a district judge is far more dangerous to our rights than is a supreme court justice.
So why the kid gloves with Sotomayor then, as we see from this Press Release from Senator Feinstein entitled “Senator Feinstein Statement Supporting Supreme Court Nomination of Judge Sonia Sotomayor” on Aug. 04 2009, to wit:
Washington, DC – U.S. Senator Dianne Feinstein (D-Calif.) today urged the full Senate to confirm the nomination of Judge Sonia Sotomayor to become an Associate Justice on the U.S. Supreme Court.
In remarks delivered on the Senate floor, Senator Feinstein praised Judge Sotomayor, noting that her 17-year judicial career shows her to be “a solid, tested, and mainstream federal judge.”
If confirmed by the Senate in a vote expected later this week, Judge Sotomayor would become the first Latina on the Supreme Court, and the high court’s third female justice.
Following are Senator Feinstein’s remarks:
“I’ve served on the Judiciary Committee for more than 16 years now.”
“I have sat through the confirmation hearings of four Supreme Court justices.”
“And I’m very proud to say that I believe the President made an excellent choice, and I enthusiastically support this nominee.
Judge Sotomayor is a warm and intelligent woman.
More importantly, though, she is a solid, tested, and mainstream federal judge.
Her personal story is one of hard work.
She has risen above all kinds of obstacles, and she has perseverance.
She’s a role model for women in the law, and I cannot help but feel a sense of enormous pride in her achievements, her nomination, and hopefully before the end of the week her confirmation to be a Supreme Court Justice.
As I said at the confirmation hearings that a Supreme Court Justice should possess at least five qualities:
One, broad and relevant experience.
So how does she stand?
You can’t find a nominee with better experience than Judge Sotomayor.
She has 29 and a half years of relevant legal experience, and she’s seen the law from all sides.
For four and a half years, she was a prosecutor in New York City.
She prosecuted murders, robberies, and child pornography cases as an Assistant District Attorney.
She worked with law enforcement officers and victims of crime, and she sent criminals to jail.
We heard from the distinguished New York City district attorney, Mr. Morgenthau, who said he looked for bright young people.
And he found her, and he heard her story.
She had been to Princeton.
She graduated summa cum laude.
She went to Yale Law School.
She was editor of the Law Review.
And she came to his attention, and he went to recruit her as a prosecutor in New York City.
For eight years then, after that, she practiced business law.
As a litigator at a private firm, she worked on complex civil cases involving real estate law, banking law, contracts, and intellectual property law.
Then, she was appointed by President George Herbert Walker Bush, as a U.S. District Court Judge, and she served for six years.
She heard roughly 450 cases in the district court — up close and personal, where litigants come before the judge, where the judge gains a sense of what the federal court means to an individual.
I think that’s important to know on the Supreme Court.
And she saw there first-hand the impact of the law on people before her.
And then she was appointed by President Clinton.
For 11 years, she has been a federal appellate judge on the Second Court of Appeals.
She has been on the panel for more than 3,000 federal appeals and authored opinions in more than 400 cases.
These 11 years were rigorous and appropriate training grounds for the Supreme Court.
Judge Sotomayor will be the only sitting Justice with experience on both the trial and appellate courts.
And she has more federal judicial experience than any Supreme Court nominee in the last 100 years.
That’s a substantial qualification.
Secondly, a Supreme Court Justice should have deep knowledge of the law and the Constitution.
And I believe her broad experience gives her first-hand knowledge of virtually every area of the law.
As I said, as a prosecutor, she tried criminal cases – homicides, assault, pornography cases – those crimes that destroy lives.
And as a business lawyer, she examined contracts, represented clients in complex civil litigation, and tried intellectual property disputes.
As a district court judge, she presided over criminal and civil jury trials, she sentenced defendants, she resolved complicated business disputes, and she reached decisions in discrimination and civil tort cases where people had been unfairly treated, injured, or harmed.
Finally, as an appellate judge, she has grappled with the difficult and critical questions that arise when people disagree about what our Constitution and our federal statutes mean today.
So she certainly has ample experience.
Third, a Supreme Court Justice should have impeccable judicial temperament and integrity.
Anyone who watched Judge Sotomayor at her confirmation hearings has seen her temperament and demeanor first-hand.
She is warm.
She is patient.
She is extremely intelligent.
She sat at that table, with a broken leg up on a box, hour after hour, and day after day, in a hot room listening to members of the Judiciary Committee pepper her with questions.
And not at any time did she lose her presence, lose her cool, show anger.
But she showed determination and patience and perseverance and I think that means a great deal.
At times the hearings became quite heated.
But she remained calm, even in the face of provocative questioning.
So I am not surprised that the American Bar Association and the New York City Bar Association gave her their highest ratings.
As one of her Republican-appointed colleagues on the Second Circuit said: ‘Sonia Sotomayor is a well-loved colleague on our court — everybody from every point of view knows that she is fair and decent in all her dealings. . .”
“The fact is, she is truly a superior human being. . . .’
What greater compliment could there be for a prospective Supreme Court nominee?
After spending time with her during our one-on-one meeting and participating in her confirmation hearings, I really agree.
She is a walking, talking example of the very best America can produce.
She’s overcome adversity.
Here is a child, a product of a poor Puerto Rican family, living in a housing project in New York.
She is eight years old, her father dies.
She’s nine years old, she finds herself with juvenile diabetes.
She goes to school, she struggles with the language.
She overcomes it.
She graduates from high school.
She goes to Princeton.
She succeeds in every way shape or form – summa cum laude – and then on to Yale, and head of the Yale Law Review.
She overcame adversity, and she kept going.
She’s given back to her community and her country.
And she’s now on track to become the first Latina Justice of the United States Supreme Court — and only the third woman ever appointed to that Court.
I not only will vote for her, I will do so with great pride.
Finally, a Supreme Court Justice should exhibit mainstream legal reasoning and a firm commitment to the law.
Now, I’ve heard people say they don’t believe she will follow the law.
I sat through those four days of hearings.
There was never an instance that I saw where she moved away from legal precedent and the law.
I’ve said before and I would say today that I am somewhat concerned about the current Supreme Court.
As I see it, conservative activists have succeeded in moving our court to the right of mainstream American thought.
So the Supreme Court’s shift to the right and discarding of precedent is not just an ivory tower issue.
These decisions have real-life impact.
So let me be clear.
In my view, after 16 years on this Committee, the Justices on the Supreme Court are not umpires, they do not just call balls and strikes, they are not computers.
It matters who sits on our Supreme Court, and it matters whether they will respect precedent and follow the law.
Judge Sotomayor is a nominee with a 17-year record of following the law.
She has faithfully applied the law to the facts in case after case.
Now we have a research service, called the Congressional Research Service, and it’s a neutral respected adjunct to what we do in the Senate and the House.
And it carries out significant research.
Well, they took a look at her record.
They examined it.
And this is what they said: Her decisions do not fall ‘along any ideological spectrum.’
‘The most consistent characteristic of [her] approach as an appellate judge has been an adherence to the doctrine of stare decisis – the upholding of past judicial precedents.’
So when her record is objectively researched by the number-one objective research service that we have, she has in fact been found to abide by Court precedent.
They have essentially said she’s not an activist, she follows legal precedent.
And when her confirmation hearing ended, even one Senator who is now voting against Judge Sotomayor said: ‘I actually agree that your judicial record strikes me as pretty much in the mainstream of judicial decision-making.’ (Senator John Cornyn, Confirmation Hearings for Judge Sonia Sotomayor, July 16, 2009)
Judge Sotomayor’s mainstream record, her respect for precedent, and her commitment to the law have earned her support from groups that cut across party lines.
From law enforcement groups like the International Association of Chiefs of Police, to civil rights groups like the Leadership Conference for Civil Rights, to business groups like the U.S. Chamber of Commerce, to former officials from both parties, including conservative lawyer Ken Starr, and legal groups like the American Bar Association.
This is a nominee with a solid record, with more federal judicial experience than any nominee in a century, and with widespread support.
end quotes
Susan, as you read that, do you think Sonia Sotomayor was held to a different, lesser standard of scrutiny than is Brett Kavanaugh because she was a Latina woman?
Should women judges be held to less rigorous standards than make judges because they are women?
Susan says
Kavanaugh is not entitled to the same due process as a criminal defendant. He is being considered for the privilege of serving on the Supreme Court. You demean the victims allegations because she lacks forensic evidence, but she volunteered for and passed a polygraph. Why hasn’t he done the same?
Note: Really, a polygraph administered by her own attorney? That’s now considered evidence? As far as allegations, Ford and the Democrats are focusing more on stalling the nomination process with the allegations, rather than the accusations themselves. The allegations have become so political that it’s gotten away from the actual alleged crime. Sorry for being inquisitive, but it seems odd how Ford originally wanted to be anonymous and then took a polygraph test, but did not say how the test was paid for. And then they erase her social media history. Then of course Dr. Ford hires a Clinton fundraiser as her lawyer to represent her and now it looks like there’s some behind-the-scenes activity where Brian Fallon, who worked for Hillary Clinton, has teamed up with Paige Herwig, who worked with Dianne Feinstein, and they’ve raised $5 million, most of it from George Soros, to fund a group called Demand Justice and Demand Justice is the main organization that’s running to stop the Kavanaugh nomination. And DJ is also working with Deborah Katz, the lawyer for Ford. I’m Sicilian, so color me suspicious. This is a game. If you don’t see that, and are not disgusted that actual sexual assault victims are being used as pawns in this, I just don’t know what to say anymore. But go ahead, rage on your shining diamond.
Susan says
Definitely not raging on you, Wayne. From my perspective, we are engaging in civil discourse.
Note: Oh, I did not take it that way at all! I love all of your comments!
Paul Plante says
Susan, what an excellent dissertation all the way around.
You are very articulate when it comes to how the law and courts should work in this country, which is rare.
You bring up many points, all of which need some very serious discussion, which is what the Cape Charles Mirror is all about, I have found.
Where I am focused is on the following from your excellent dissertation above, to wit:
“Law is not science.”
“Cases are not decided solely upon parsing through language in decisions deemed to be binding precedent.”
“Many Supreme Court decisions require justices to issue opinions that reflect the evolving standards of the community.”
“Supreme Court cases regarding weighty issues that divide our nation, such as abortion and capital punishment, have relied heavily upon the collective view of the justices about evolving standards of morality and decency.”
end quotes
Let’s focus in on the “collective view of the justices about evolving standards of morality and decency,” for that really is what is at issue here in the United States today – these evolving standards of “morality” and “decency.”
Are those “evolving standards” objective, Susan, or are they forever subjective, do you think?
If you go back through the history of the Supreme Court from the time of its beginning, and I have done so, and you read the bios of each Justice since the beginning, something I again have done, you find at least a couple had been officers of the Confederacy during the Civil War, and you had some slave owners in there.
James Wilson, a signatory to the Declaration of Independence, spent some time in a debtors’ prison while still serving as an Associate Justice of the U.S. Supreme Court.
And now we have this Brett Kavanaugh Kerfuffle which seems to be getting murkier and murkier by the day, with one of his Yale classmates saying she touched his male member while drunk at a drunken college party, coupled with the alleged “dry humping” incident, as you call it.
It seems obvious that the standards for vetting federal judges at any level are really quite poor.
Given the evolving standards of “morality” and “decency” in America, what standards should be applied to the selection of federal judges at any level?
What qualities should we be looking for in federal judges?
How can we be sure they possess those qualities, given that they are selected by politicians and approved by politicians, a class of Americans not held in high regard or high esteem by the American people?
Susan says
“There is no video evidence, no audio evidence, no photos, and no witnesses.” I feel this also needs to be addressed. Frankly, I cringed when I read this. It smacks of requiring victims of violent criminal conduct to produce a CSI level of proof before their accusations can be taken seriously.
Prosecutions of sexual assaults, and most criminal cases in general, do not involve audio, video or photographic proof. These insidious crimes generally do not happen in public view, but like this one, in a room, being held down forcibly, using intimidation and fear to try to control a victim from seeking help. Trust me, women remember being sexually assaulted. Radio personality Howard Stern recently mansplained how traumatic memories are inherently reliable. While in high school, he was assaulted by a fellow male student without provocation. He was punched in the face, and wrestled to the ground. He resisted as well as he could, but he was unable to really defend himself, something that made him feel ashamed and humiliated. He doesn’t remember exactly how old he was. He doesn’t even remember exactly where it happened, or who the other students were who were there, and witnessed it. But, what he does remember with crystal clarity is that he was assaulted. And, he remembers who assaulted him. He is 64 years old, and this incident is still prominent in his mind. I doubt anyone thinks he made it up. Why doesn’t Dr. Ford deserve the same understanding and deference?
Paul Plante says
Susan, let me step in here and say that I am hearing you, even if no one else is, and let me further say that as a non-gay, white male, I have already come out in here in another thread as being for victimhood for Christine Blasey Ford, and that before you started posting, so you and I are on the same page here on this subject of no video evidence, no audio evidence, no photos, and no witnesses, which certainly does need to be addressed, because in your learned opinion, which has gained you a lot of fans here to the north of you, you taking the time to teach us country folks about how the system should work in a more ideal world, that does smack of requiring victims of violent criminal conduct to produce a CSI level of proof before their accusations can be taken seriously.
Having been a victim of that myself, I certainly can understand exactly what you are saying here, especially in the case of politically-motivated vehicular assaults such as I was a victim of on December 29, 1989, some seven (7) years after an allegedly drunken 17-year old Brett Kavanaugh allegedly scared a 15-year old Christine Blasey Ford by laying on her and dry-humping her with his hand over her mouth.
As you say, prosecutions of sexual assaults, and most criminal cases in general, do not involve audio, video or photographic proof, because as you say, these insidious crimes generally do not happen in public view, but like this one, in a room, being held down forcibly, using intimidation and fear to try to control a victim from seeking help.
And I do trust you, Susan, when you say women remember being sexually assaulted.
As to radio personality Howard Stern recently mansplaining how traumatic memories are inherently reliable, telling people all over America that while in high school, he was assaulted by a fellow male student without provocation, so that he was punched in the face, and wrestled to the ground, and while he resisted as well as he could, he was unable to really defend himself, something that made him feel ashamed and humiliated, that is truly horrible, is it not?
He is a famous person in America, afterall, and so it should be considered horrible.
And I will accept that he doesn’t remember exactly how old he was, or even remember exactly where it happened, or who the other students were who were there, and witnessed it, but that he does remember with crystal clarity that he was assaulted and that he remembers who assaulted him, and even though he is 64 years old, this incident is still prominent in his mind.
I can accept all of that, Susan, as a victim of trauma, myself.
And I don’t doubt anyone thinks he made it up.
So why doesn’t Dr. Ford deserve the same understanding and deference?
And the answer to that, Susan, is sure she does – she deserves the exact same understanding and deference as does the 64-year old Howard Stern.
And why shouldn’t she?
Why should there be one standard for the 64-year old Howard Stern America who while in high school was assaulted by a fellow male student without provocation, so that he was punched in the face, and wrestled to the ground, and while he resisted as well as he could, he was unable to really defend himself, something that made him feel ashamed and humiliated, that is truly horrible, is it not, and a different standard for Dr. 15-year old Christine Blasey Ford who was dry-humped by Brett Kavanaugh when she was 15?
And the answer is there shouldn’t be.
So why are there different stands, Susan, based on your class and how famous you are?
That is a question literally millions of people across this fair land who tune in here every day to hear the kind of intelligent political commentary they know they won’t find on insipid political shows like CNN’s Chris Cuomo show, and hopefully, you will be able to find the time to provide us with that answer.
And thank you in advance for doing so!
Paul Plante says
A real question here, Susan, and one millions of people across America hope and pray you will address, is why there is a standard of concern and deference for Dr. Ford that does not appear to apply to other Americans who have also suffered trauma, in some cases far more severe and serious than what Dr. Ford alleges befell her back in or around 1982.
It is a matter of social class and political connections, is it not, how the Democrats in the Senate treat these matters, so that if like Dr. Ford, you have the right social standing and political connections, as she clearly does, your concerns will be heard, and if you don’t, well, tough luck?
Today, we heard Dr. Christine Blasey Ford tell the Senate Judiciary Committee and a riveted nation Thursday in a shaky voice as follows:
“I am here today not because I want to be.”
“I am terrified,” Ford said as she described the alleged assault.
“I am here because I believe it is my civic duty to tell you what happened.”
end quotes
Do all of us have such a civic duty to come forward when someone is about to be appointed to the Supreme Court who should not be a United State Supreme Court Justice, or should that really be a function of your social standing in American society today?
And today, a riveted nation also heard the Senate Judicial Committee’s top Democrat, Dianne Feinstein of California, telling Dr. Ford, as follows:
“I am very grateful to you for your strength and your bravery for coming forward.”
“I know it’s hard.”
end quotes
What about the strength and bravery of other Americans who tried to come forward when the nomination of Sonia Sotomayor was being considered by Senator Feinstein because they too believed it is their civic duty to tell Senator Feinstein what happened, but whose voices Senator Feinstein refused to hear?
What about them, Susan?
Why were their voices less important than the voice of Dr. Ford?
Because she has social standing and Democrat support, and they didn’t?
And in the Associated Press story “Voice shaking, Ford tells her Kavanaugh assault story” on 27 September 2018, we saw the committee’s top Democrat, Sen. Dianne Feinstein of California, expressing empathy for what Ford says she’s suffered, telling her, “I know this wasn’t easy for you.”
And in that same article, we had Dr. Ford stating as follows:
“It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court,” she was to tell the senators.
“My responsibility is to tell the truth.”
end quotes
What about the rest of us, Susan?
Do we all have a responsibility to tell the truth?
Would that apply to Dianne Feinstein, herself, or is she exempt from the requirement because she is the top Democrat on the Senate Judiciary Committee, and so, is held to a different standard than the rest of us in this country?
As I say, we common folks in this country who are greatly concerned about the character of the Supreme Court nominees who have much influence over the shaping of jurisprudence for the entire country are interested in how you see that, given that in her Press Release from Senator Feinstein entitled “Senator Feinstein Statement Supporting Supreme Court Nomination of Judge Sonia Sotomayor” on Aug. 04 2009, when she said “Judge Sotomayor is a nominee with a 17-year record of following the law,” and “(S)he has faithfully applied the law to the facts in case after case.” Senator Feinstein was not only not telling the truth, but she was willfully not telling the truth, and she would have known it, from Sonia Sotomayor’s own record as an appeals court judge on the 2d Circuit in 2005.
In that same press release, Susan, on Aug. 04 2009, Senator Feinstein stated as follows:
It matters who sits on our Supreme Court, and it matters whether they will respect precedent and follow the law.
end quotes
Is that really true, Susan, or is that merely political hype intended to gull the unwary in this country?
In a Los Angeles Times article entitled “Dianne Feinstein: Why I’m voting ‘no’ on Brett Kavanaugh’s Supreme Court nomination” by Dianne Feinstein, on Sept. 16, 2018, she stated as follows with respect to Brett Kavanaugh, to wit:
Supreme Court justices should not be an extension of the Republican Party.
end quotes
Is that true?
If so, then should Supreme Court Justices also not be an extension of the Democrat Party, as well?
In her Press Release from Senator Feinstein entitled “Senator Feinstein Statement Supporting Supreme Court Nomination of Judge Sonia Sotomayor” on Aug. 04 2009, it was stated as follows, to wit:
In remarks delivered on the Senate floor, Senator Feinstein praised Judge Sotomayor, noting that her 17-year judicial career shows her to be “a solid, tested, and mainstream federal judge.”
end quotes
In my understanding of our federal system of government in this country, the judiciary, and one would think especially the Supreme Court, is supposed to be a separate and independent branch of government from the legislative branch, which includes the Senate, so when Senator Feinstein stated on Aug. 4, 2009, that Sonia Sotomayor’s 17-year judicial career showed her to be “a solid, tested, and mainstream federal judge,” what is that assessment based on, do you think, other than Democrat politics?
After all in her August 4, 2009 press release, this is what Senator Feinstein had to say about the nomination of Sonia Sotomayor to be a Supreme Court Justice, to wit:
“I’ve served on the Judiciary Committee for more than 16 years now.”
“I have sat through the confirmation hearings of four Supreme Court justices.”
“And I’m very proud to say that I believe the President made an excellent choice, and I enthusiastically support this nominee.”
end quotes
And she thinks that because Sotomayor was the choice of a Democrat president, whose choice she was not going to question, because she too is a Democrat.
So, Susan, isn’t it obvious we have two different standards being applied here as to who gets to sit on the Supreme Court bench?
Chas Cornweller says
Sorry folks, but Habeas Corpus went out the window the day the Patriot Act came through the front door. But, now I read that Bret Kavanaugh was one of the fine judges who put that Constitutional shredder in play back in 2001. I suggest you take a moment and read it. It ain’t just about terrorism, it’s about you and the further erosion of your so-called rights. Oh, the irony, Bret!
Welcome to the New America folks, could it be any greater?
Paul Plante says
Chas Cornweller, dude!
Let me say how good it is to see you in here, sharing your learned viewpoints with us as you are.
You and Susan give us the kind of political commentary that air-headed, pretty-boys like CNN’s blustering Chris Cuomo, who was just accused the other day of bullying Kellyanne Conway on his show after inviting her on, apparently so he could humiliate and bully her, to make himself look like a big-man Brett Kavanaugh style, could only hope for, but will never be able to achieve.
And you are dead right about Habeas Corpus having been thrown out the window long before the day the Patriot Act came through the front door.
Abe Lincoln suspended it during the Civil War, that’s how long it has been out the window.
As you so eloquently point out, Chas cornweller, and I’m glad you did, because so many people in this country are totally ignorant of Habeas Corpus, never in their lives having to evoke it, the Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
So as you point out, it never has been an unqualified right, which a political judge like Brett Kavanaugh would clearly know about from his law school days.
So the Patriot Act that you read about Bret Kavanaugh being one of the fine judges putting that in play back in 2001 was a Constitutional shredder because it was built into the Constitution to be shredded in what the politicians might consider cases of rebellion or invasion the public safety, which is as you say a very scary thought when you had a presidential candidate like Hillary Clinton who was calling American citizens she didn’t like a “Basket of Deplorables, who would be happy to strip those people og their Habea Corpus so she could send them to re-education facilities yo be re-indoctrinated, coming so close to gaining the actual power as president to be able to abuse that power for partisan political purposes.
As you so eloquently state in so few words, Chas Cornweller, it IS about you and me and the further erosion of our so-called rights.
Welcome to the New America, Chas Cornweller, could it be any greater?
Our next president, Young Andy Cuomo, a progressive Democrat who is going to be the prospective Democrat presidential front-runner in 2020, says it never has been great, so the answer to that question is hopefully yes, it could be a whole lot greater, and with solid citizens such as yourself and Susan speaking out as you do in here, hopefully it will be.
And thank you from a grateful nation, Chas Cornweller, for giving us that hope on this cold, windy, rainy day here in the very troubled United States of America that has so clearly lost or at least misplaced, if not destroyed its moral compass, as we are seeing here in the case of Brett Kavanaugh, who became a federal judge with lifetime tenure despite this well-known alleged incident of him allegedly putting his you-know-what in the face of one of his drunken female Yale co-students and allegedly making her touch it.
Paul Plante says
I just heard Dr. Ford testifying in her own words and what she said, in her own words, was that she and Brett Kavanaugh were upstairs at this party, and he pushed her down and started running his hands on her body and he was laying on her, and she thought he was going to rape her, AND SHE STARTED YELLING, HOPING SOMEONE DOWNSTAIRS WOULD HEAR HER.
What happened to the hand over her mouth, I wonder?
Paul Plante says
Reading of her sworn testimony in the Associated Press article “Voice shaking, Ford tells her Kavanaugh assault story,” which just came out on 27 September 2018, this is what is reported:
WASHINGTON — Christine Blasey Ford told the Senate Judiciary Committee and a riveted nation Thursday that Brett Kavanaugh sexually assaulted her in a locked room at a 1980s high school party, as the panel began an extraordinary and historic hearing at which Kavanaugh hoped to salvage his Supreme Court nomination.
end quotes
A locked room?
Okay, let’s accept that as true, since she swore to it under oath.
So, how then did Mark Judge get into the room to jump on Kavanaugh while he was on top of Dr. Ford?
Paul Plante says
And let me come back on the record here to say just how bad I feel for Dr. Christine Blasey Ford, who epitomizes impeccable “victimhood” in the reality of modern America if anyone does, and I desperately wanted to believe her riveting tale of woe at the hands of this monster Brett Kavanaugh, who tried to “have his way” with her when she was only at the tender age of 15, if you can just imagine it.
I just found myself confused as to which version of the story to believe.
Should I believe all of them?
Or just some of them?
Or what?
Help me out here, somebody, if you can!
I mean, afterall, in the New York Times story, and they don’t lie, people, or put out fake news, “With Caffeine and Determination, Christine Blasey Ford Relives Her Trauma” by Julie Hirschfeld Davis on 28 September 2018, this is what we are told, to wit:
She delivered a harrowing tale of casual teenage violence that put a human face on an allegation that has threatened a Supreme Court nomination and captured the attention of the nation in the throes of a profound reckoning with the realities of sexual assault.
Visibly anxious but firm in her recollections, traumatized but graphic in her description of what she called a life-altering trauma, Dr. Blasey testified over three hours of questioning about the night in the Washington suburbs 36 years ago when she said an incoherently drunk Brett M. Kavanaugh, President Trump’s Supreme Court nominee, pinned her down on a bed and ground his body against hers, trying to remove her clothing as he clamped a hand over her mouth to stifle her screams while a friend watched.
“Indelible in the hippocampus is the laughter — the uproarious laughter — between the two, and their having fun at my expense,” said Dr. Blasey, a research psychologist, using the clinical language of neuroscience to describe a horrifying recollection of Judge Kavanaugh and the friend, in essence acting as both victim and expert witness in her own story.
end quotes
I mean, let’s face it, people – it’s indelible in her hippocampus – the uproarious laughter between the incoherently drunk Brett M. Kavanaugh, President Trump’s Supreme Court nominee, and his friend, as they had their fun at her expense.
How terrible!
I personally shudder to even think about it.
Getting back to the New York Times story, which has to be the truth, because the New York Times simply does not and would not print anything but, we have this, to wit:
Asked how she could be certain in her recollection of what happened with Judge Kavanaugh, she told the prosecutor, Rachel Mitchell: “Just basic memory functions, and also just the level of norepinephrine and the epinephrine in the brain that, you know, encodes that neurotransmitter that codes memories into the hippocampus and so the trauma-related experience is locked there, whereas other details kind of drift.”
end quotes
Ah, there it is, people, the “drift,” as the lawyers like to call it, which explains why their clients might have five or even ten different versions of their stories, all of which are true, because of the level of norepinephrine and the epinephrine in the brain that, you know, encodes that neurotransmitter that codes memories into the hippocampus and so the trauma-related experience is locked there.
As the New York Times tells us, during the attempted rape, Dr. Blasey said, she had a typical “fight or flight” reaction.
“I was definitely experiencing the surge of cortisol and adrenaline and epinephrine,” she said.
end quotes
Now, there is something I think we can all understand – that surge of cortisol and adrenaline and epinephrine.
Haven’t we all experienced that same surge at some point in our lives or other?
As to the reliving of the trauma, which itself had to be as bad or worse than the attempted rape itself, this is what the NY Times has to say:
“She needed some time to herself to center, and she had some last-minute conversations with her attorneys to go through her opening statement and just feel like she could get through it without losing her center,” said Samantha Guerry, a former Holton-Arms classmate who was a guest of Dr. Blasey’s at the hearing, and took on the unofficial task of handling the news media for the school’s other alumnae who were part of the group.
“The hardest part was getting through that opening statement where she had to relate that experience again in this format.”
“It was intense.”
end quotes
It is intense, people, when you lose your center, and it was perhaps the loss of her center that had the Associated Press, which certainly is not in the same class as the venerable NY Times, reporting in the article “Voice shaking, Ford tells her Kavanaugh assault story” on 27 September 2018, as follows:
WASHINGTON — Christine Blasey Ford told the Senate Judiciary Committee and a riveted nation Thursday that Brett Kavanaugh sexually assaulted her in a locked room at a 1980s high school party, as the panel began an extraordinary and historic hearing at which Kavanaugh hoped to salvage his Supreme Court nomination.
end quotes
That has to be another detail that is in there in her hippocampus, of course, which makes one wonder how she knew the door was locked, and how the friend managed to get into the room, but the NY Times seems to handle that detail as well, as follows:
Ms. Mitchell’s trial-like line of inquiry drew steady but sometimes befuddled responses from Dr. Blasey, particularly as Ms. Mitchell tried to determine whether Democrats or outside interest groups had selected her legal team or paid the expenses for her representation and polygraph test.
end quotes
Ah, yes, the befuddled responses – which to me are a sure sign that her lawyers were not successful in keeping her on her center, since befuddlement is a sure sign you aren’t on your center, at all.
So how did she come up with her legal team, then, which is the subject of this thread?
Let’s see what the NY Times has to say about that, to wit:
Dr. Blasey said that aides to Senator Dianne Feinstein of California, her home state senator and the ranking Democrat on the panel, had recommended she retain Debra Katz, one of her lawyers, but when Ms. Mitchell pressed on the matter of legal expenses, Michael Bromwich, another of Dr. Blasey’s lawyers, jumped in.
“We are not being paid, and we have no expectation of being paid,” he said.
end quotes
OH!
Wasn’t that nice of Dianne Feinstein, referring Dr. Ford to the right lawyer here?
Afterall, as the NY Times tells us:
She said she had initially not understood why she would need a lawyer to relay her allegation against Judge Kavanaugh, and eventually sat in her car in a Walgreen’s parking lot in Rehoboth Beach, Del., interviewing lawyers she could never have imagined needing.
end quotes
So why then did she need these lawyers?
And if she lives in California, why was sitting in her car in a Walgreen’s parking lot in Rehoboth Beach, Del., interviewing lawyers she could never have imagined needing?
What the heck is up with that?
Don’t these lawyers she could never have imagined needing have offices?
Has anyone figured that out yet?
If so, could you please let us know?