"I Know Brett Kavanaugh, But I Wouldn't Confirm Him"

[NotreDame]

Wrong post

 

[AllButNone]

The third thing that I remember him being attacked over was whether or not he knew about the files stolen by Manuel Miranda. On that subject, I felt his denials strained credibility, so again, I agree with the aggressive line of questioning on it.

I'm walking back my original response to this. I spent a little more time reading about it yesterday, there were a few arguments I'd missed. I now agree, I feel he's not credible on this.

 

[NotreDame]

That's my understanding of it too. I mean people will suspect/believe his decisions will be biased against Democratic lawmakers/goals/individuals.

Before I respond, I'd like a bit of clarification of your position. Is the appearance of the integrity and impartiality of the supreme court an important consideration when deciding who sits on the supreme court?

The appearance of impartiality is important. My issue is the ease in which the appearance of impartiality vanishes, and the nebulous nature of the circumstances sufficient to diminish or evaporate the appearance of impartiality. The appearance of impartiality vanishes on little more than the subjective appeal that some person will suspect a lack of impartiality. A lack of impartiality is a favorite partisan trump card, invoked by both sides of the aisle, in regards to nominees or sitting judges, to impugn their opinion or impede their appointment.

Almost any conduct can qualify as eroding the appearance of impartiality. All one needs to claim is they personally would suspect partiality, or simply declare the result is a lack of impartiality.

For me, however, I want to base my opinion on something more concrete, such as facts and the reasonable inferences to be drawn from those facts.

Kavanaugh's proper judicial temperament and character while on the bench is reflected by his 12 years on the D.C. Circuit. I am not persuaded that his conduct displayed in the context of a non-judicial setting, in which he has been accused of attempted rape, public indecency, conspiracy to commit rape, all of which was uncorroborated, is how he would conduct himself while on the Court. The 12 years of conduct by Kavanaugh while on the D.C. Circuit is reflective of how he will be while on the Court.

 

[Halbhh]

If you think what his family - and Ford's family has been put through is just regular pressure? I don't know what tell you.

They even have had comments from SCOTUS from both sides presently sitting commenting about this outrageous treatment both families have had to endure.

Their treatment is not fair, and it is not JUST towards either party in this circumstance. It was cruel and these politicians didn't give a fig about either of them. They didn't care about Ford or Kavanaugh.

Do you think they would give a fig about us when we confront them, or will they do what we have seen they are capable of when they sic their gang of monsters on us? Is that what we want this country to be? When I don't like what you say or if you feel differently politically it's perfectly acceptable to send out - and encourage - the band of bullies? Think about what you are saying really hard.

The individuals that did this to him? They also are in the position that affects the very fabric of society, and their laws, regulations, etc affect every last one of us. Their are our LEADERS in the SENATE! They didn't do this with professionalism - or care of consideration of anyone but themselves. They also have the power to do this the next person - being a judge or average joe citizen - to rain this kind of campaign against us if we dare to disagree.

I used to respect some of these politicians, and I have to say I am questioning their ethics and character at this point. It's sad that we don't expect extraordinary people in our other parts of government as well. We certainly shouldn't be feeling the need to endorse or encourage this type of behavior. People seem to forget we could be next if they feel they have this power - and the right to use it. You take people down on the merits - not the campaign of intimidation.

Now you're being too pessimistic.

The very intense spotlight on this whole situation for a couple of weeks like this means much of America is learning more, and will be better ready in another year or so to guage accounts given by people.

Why?

Because millions and millions will now want to read and watch things about memory and traumatic events, and recall. And they will.

And not only about the memory of the victim, but also for the perpetrator, how a perpetrator can erase their own memory of doing an evil act.

And perhaps many will learn that not just a few tens of thousands of women in the U.S. have been raped during their lifetime (Ford's account was of an attempted rape) -- not just a few tens of thousands -- but millions and millions, in the high single digits, shocking huge numbers like 8 or 10 million.

Shocking.

And this new knowledge will help us better be ready to gauge claims and counter claims.

 

[super animator]

You know, I been told that your are smart. Why not care an explaination to our state attorney friend?

 

[grasping the after wind]

I just keep remembering Mitch McConnell saying they will oppose Obama's nomination of Supreme Court judge by 'any means necessary.' I remember the day Obama was going to announce who his pick was and protestors were already outside of the Capital…

Wow, it really does work both ways…

With the exception that the things mentioned in the original post actually happened.

 

[NotreDame]

The third thing that I remember him being attacked over was whether or not he knew about the files stolen by Manuel Miranda. On that subject, I felt his denials strained credibility, so again, I agree with the aggressive line of questioning on it.

But how? I’ve read an email people cite to as evidence he knew the files were stolen but that email doesn’t reference, suggest, or infer stolen files.

 

[RocksInMyHead]

But how? I’ve read an email people cite to as evidence he knew the files were stolen but that email doesn’t reference, suggest, or infer stolen files.

I'd start with this article on the subject: I Wrote Some of the Memos That Brett Kavanaugh Lied to the Senate About. He Should Be Impeached, Not Elevated.

Ignoring the sensationalist headline, it's written by a satffer who wrote some of the stolen memos and goes into detail on the content and purpose of them (and why there's no chance that they would have been voluntarily shared, as Kavanaugh claims).

 

[Kentonio]

If you think what his family - and Ford's family has been put through is just regular pressure? I don't know what tell you.

Who said anything about regular pressure? Sure he's under extraordinary pressure. So what do you think he'll feel if he's ever asked to rule on say the determination of a Presidential election? Or a state wanting to secede? Or some other vast constitutional crisis that could potentially split the union?

A SCOTUS judge must be able to handle incredible pressure that would make most people crumble, its basically the entire job description. If Kavanaugh can't handle what he's facing now without losing his cool, then how can you trust that he could stay cool in the face of a historical and potentially existential event for the country?

 

[NotreDame]

We'll have to agree to disagree on this then.


Only if he's had the motive and opportunity to do something similar before, but refrained. Events can change a man. As an analogy, let's pretend that a judge has been a consummate professional for 30 years, until his daughter is murdered by a gang member. Would you trust that judge to fairly adjudicate a murder case involving a member of that same gang? Because I wouldn't.

We'll have to agree to disagree on this then.

Agree to disagree about what issue exactly? That your mere subjective view the appearance of impartiality is lost is not enough? And why should it be? Why should your subjective belief the appearance of impartiality is lost be superior to the opposite subjective belief of a person that the appearance of impartiality is not lost? Based on your logic, the appearance of impartiality is not lost on the basis another individual has the subjective view the appearance of impartiality is not lost. This is the dilemma we are left with when you invoke your mere subjective view the appearance of impartiality is lost, many people have competing subjective points of view. Hardly a sufficient way to resolve the issue.

Only if he's had the motive and opportunity to do something similar before, but refrained. Events can change a man.

The fact events can change a man is not very compelling. Sure events can change a man. Events can have no effect on a man. A man can experience an event and compartmentalize the event. The question here is did this singular event change who Kavanaugh would be on the bench? I am not inclined to believe this singular event, occuring a different forum than a court room, in a different context, under different circumstances, overshadows who he has been on the bench for the past 12 years.

Only if he's had the motive and opportunity to do something similar before, but refrained. Events can change a man. As an analogy, let's pretend that a judge has been a consummate professional for 30 years, until his daughter is murdered by a gang member. Would you trust that judge to fairly adjudicate a murder case involving a member of that same gang? Because I wouldn't

No, lets not "pretend." Your analogy is not a good one. We are not discussing anything remotely close to the murder of one of his children. It is a poor analogy.

 

[RocksInMyHead]

Agree to disagree about what issue exactly? That your mere subjective view the appearance of impartiality is lost is not enough? And why should it be? Why should your subjective belief the appearance of impartiality is lost be superior to the opposite subjective belief of a person that the appearance of impartiality is not lost? Based on your logic, the appearance of impartiality is not lost on the basis another individual has the subjective view the appearance of impartiality is not lost. This is the dilemma we are left with when you invoke your mere subjective view the appearance of impartiality is lost, many people have competing subjective points of view. Hardly a sufficient way to resolve the issue.

My point is that your subjective opinion does not trump my subjective opinion (and vice versa), and neither of us is going to change the other's mind at this point. So we will have to agree to disagree.

No, lets not "pretend." Your analogy is not a good one. We are not discussing anything remotely close to the murder of one of his children. It is a poor analogy.

He's been talking about how people are trying to ruin his career and destroy his family, so yeah, I'd say it's pretty comparable.

 

[AllButNone]

The appearance of impartiality is important. My issue is the ease in which the appearance of impartiality vanishes, and the nebulous nature of the circumstances sufficient to diminish or evaporate the appearance of impartiality. The appearance of impartiality vanishes on little more than the subjective appeal that some person will suspect a lack of impartiality. A lack of impartiality is a favorite partisan trump card, invoked by both sides of the aisle, in regards to nominees or sitting judges, to impugn their opinion or impede their appointment.

*edit, sorry this is long, trying to be thorough*

I agree with many parts of what you've written, including the importance of facts and reasonable inferences. I also agree with parts of your previous post, especially that Kavanaugh will be attacked for any unfavourable decision and that "similar conduct occurs". I do want to draw a distinction on something. Much of your defense of Kavanaugh rests on how his outburst should be interpreted. But I think the more important matter is how his outburst will (as opposed to should) be interpreted, especially if the court is to retain the appearance of impartiality.

So with that said, the outburst is a fact. (Something I'm unclear on, but the outburst was a part of his opening remarks which he had prepared the day before. Was the outburst a last minute addition, or did he have time to mull over his comments?)

The immediate issue then is of how to weight the outburst. Should one moment in a position of stress carry more weight than 12 years on the DC circuit? While I don't think the answer "no" is unreasonable, I don't think answer "yes" is unreasonable either. While it's plausible the outburst is a product of a very charged situation and an outlier not reflective of who he would be as a justice of the supreme court, it's also plausible the outburst reflects the clear bias of somebody who has had filters torn down, or also that it reflects a politically calculated maneuver. How does one know and what's the likelihood of each?

I'm going to argue that it doesn't matter. Taking the worst case scenario (for my argument), assuming the likelihood of the latter two aforementioned possibilities is low, and that the incident is most likely not reflective of who he will be on the supreme court, I believe the outburst should still be disqualifying because of:

a) The existence of other candidates without this on their record. (Amy Coney Barrett *cough*) These are partisan times, and on the basis of protecting faith in the institution of the Supreme Court, isn't a better nominee somebody who can build bipartisan trust? At the very least, if a right-wing textualist is to be nominated, then shouldn't one without such an outburst remain preferable to one with such an outburst? America can do better.

b) The left wing already generally rejects his jurisprudence and evaluating his judicial record for partisan bias isn't straightforward, so the basis on which they can trust him is his character. But he's now created an additional doubt about this, an unforced error, which he'll carry to the Supreme Court. Such a judge should not be forced on the left and the Supreme Court should be protected from such doubts as much as possible.

Rephrasing the above, if you were a defendant with a judge who had made a disparaging comment about Notre Dame alumni, would you be completely comfortable with such a judge? If so, why?

Further, in response to some of your previous statements:

a) While other people on the court do have partisan biases, shouldn't a part of the confirmation process be to weed out such people as much as possible? Why take an unnecessary risk?

b) I don't think "the appearance of impartiality has vanished easily" in this case. While it's true that in partisan times, people will inflate every little thing, in this case the outburst was his choice and there's little ambiguity in the statement itself. In this case "ignore it because of the context" requires a very subjective evaluation of the context, but the most straightforward explanation is that he meant what he said.

c) I don't think that "persuaded that his conduct ... reflective of how he will be while on the Court" is the appropriate benchmark in light of the above. The way this benchmark reads, to me is that he's entitled to the position, that him not being confirmed is some sort of punishment. It shouldn't be up to the left to persuade that his recent action is how he'll conduct himself while on his court, it's up to him to persuade that he is fit for the job. And in this, he made an error.

 

[NotreDame]

My point is that your subjective opinion does not trump my subjective opinion (and vice versa), and neither of us is going to change the other's mind at this point. So we will have to agree to disagree.


He's been talking about how people are trying to ruin his career and destroy his family, so yeah, I'd say it's pretty comparable.

I’m not espousing a subjective opinion. That’s the difference between your argument and my own, my argument isn’t like yours, and your argument is nothing more than declaring you would suspect a lack of impartiality.

And no, reputation damage isn’t comparable to murder of a family member.

 

[NotreDame]

*edit, sorry this is long, trying to be thorough*

I agree with many parts of what you've written, including the importance of facts and reasonable inferences. I also agree with parts of your previous post, especially that Kavanaugh will be attacked for any unfavourable decision and that "similar conduct occurs". I do want to draw a distinction on something. Much of your defense of Kavanaugh rests on how his outburst should be interpreted. But I think the more important matter is how his outburst will (as opposed to should) be interpreted, especially if the court is to retain the appearance of impartiality.

So with that said, the outburst is a fact. (Something I'm unclear on, but the outburst was a part of his opening remarks which he had prepared the day before. Was the outburst a last minute addition, or did he have time to mull over his comments?)

The immediate issue then is of how to weight the outburst. Should one moment in a position of stress carry more weight than 12 years on the DC circuit? While I don't think the answer "no" is unreasonable, I don't think answer "yes" is unreasonable either. While it's plausible the outburst is a product of a very charged situation and an outlier not reflective of who he would be as a justice of the supreme court, it's also plausible the outburst reflects the clear bias of somebody who has had filters torn down, or also that it reflects a politically calculated maneuver. How does one know and what's the likelihood of each?

I'm going to argue that it doesn't matter. Taking the worst case scenario (for my argument), assuming the likelihood of the latter two aforementioned possibilities is low, and that the incident is most likely not reflective of who he will be on the supreme court, I believe the outburst should still be disqualifying because of:

a) The existence of other candidates without this on their record. (Amy Coney Barrett *cough*) These are partisan times, and on the basis of protecting faith in the institution of the Supreme Court, isn't a better nominee somebody who can build bipartisan trust? At the very least, if a right-wing textualist is to be nominated, then shouldn't one without such an outburst remain preferable to one with such an outburst? America can do better.

b) The left wing already generally rejects his jurisprudence and evaluating his judicial record for partisan bias isn't straightforward, so the basis on which they can trust him is his character. But he's now created an additional doubt about this, an unforced error, which he'll carry to the Supreme Court. Such a judge should not be forced on the left and the Supreme Court should be protected from such doubts as much as possible.

Rephrasing the above, if you were a defendant with a judge who had made a disparaging comment about Notre Dame alumni, would you be completely comfortable with such a judge? If so, why?

Further, in response to some of your previous statements:

a) While other people on the court do have partisan biases, shouldn't a part of the confirmation process be to weed out such people as much as possible? Why take an unnecessary risk?

b) I don't think "the appearance of impartiality has vanished easily" in this case. While it's true that in partisan times, people will inflate every little thing, in this case the outburst was his choice and there's little ambiguity in the statement itself. In this case "ignore it because of the context" requires a very subjective evaluation of the context, but the most straightforward explanation is that he meant what he said.

c) I don't think that "persuaded that his conduct ... reflective of how he will be while on the Court" is the appropriate benchmark in light of the above. The way this benchmark reads, to me is that he's entitled to the position, that him not being confirmed is some sort of punishment. It shouldn't be up to the left to persuade that his recent action is how he'll conduct himself while on his court, it's up to him to persuade that he is fit for the job. And in this, he made an error.

I agree with many parts of what you've written, including the importance of facts and reasonable inferences. I also agree with parts of your previous post, especially that Kavanaugh will be attacked for any unfavourable decision and that "similar conduct occurs". I do want to draw a distinction on something. Much of your defense of Kavanaugh rests on how his outburst should be interpreted. But I think the more important matter is how his outburst will (as opposed to should) be interpreted, especially if the court is to retain the appearance of impartiality.

The "will be interpreted" is problematic. Why? Because of its inherent subjectivity. People inclined to oppose Kavanaugh are naturally going to construe the "outburst" negatively, or at the very least there is a palpable possibility of negatively construing the "outburst." Similarly, those inclined to favor Kavanaugh are naturally to interpret the "outburst" in a manner which does not negatively reflect upon Kavanaugh. Virtually no one could qualify for the Court in today's climate based on peoples' interpretation of what the nominee has said or did.

For those reasons, I have attempted to base any determination regarding the "outburst" on the facts, and the rational inferences to be drawn from those facts.

b) I don't think "the appearance of impartiality has vanished easily" in this case. While it's true that in partisan times, people will inflate every little thing, in this case the outburst was his choice and there's little ambiguity in the statement itself. In this case "ignore it because of the context" requires a very subjective evaluation of the context, but the most straightforward explanation is that he meant what he said.

But I did not resort to a subjective evaluation of the context. Instead, I cited to facts. The context is a non-judicial setting. The context was one in which two allegations, one alleging attempted rape, another public indecency, were made. The context was the widespread media coverage of those allegations. This context permits a proper evaluation of his remarks as someone who was [bless and do not curse][bless and do not curse][bless and do not curse][bless and do not curse]ed off, as opposed to something professing they would be biased. He is mouthing off out of anger, he is venting, which is understandable given the context.

And while he may have "meant what he said," what he said, considering the context, can reasonably be understood as venting, mouthing off, as opposed to unequivocally stating he will be biased on the bench. Yes, he "meant what he said," but he did not say he would be biased and given the context, his remarks do not reflect a man who would be biased but who was mouthing off.

c) I don't think that "persuaded that his conduct ... reflective of how he will be while on the Court" is the appropriate benchmark in light of the above.

Sure it is an appropriate benchmark. The issue is how he will conduct himself on the bench. Well, his 12 years on the bench for D.C. Circuit is an appropriate benchmark of how he will be on the bench.

The way this benchmark reads, to me is that he's entitled to the position

Regardless of how you read it, I have not argued it that way.

It shouldn't be up to the left to persuade that his recent action is how he'll conduct himself while on his court

That can't be right. If the left is going to claim he will be biased on the bench because of what he said on 9/27 then it is up to the left to persuade how and why his recent action shows he will be biased and how and why he will conduct himself in a biased manner while on the Court.

it's up to him to persuade that he is fit for the job. And in this, he made an error

His 12 years on the D.C. Circuit is persuasive evidence he is "fit for the job." His ABA rating of "well qualified," and the investigation the ABA conducts of the nominee before bestowing that rating, is persuasive evidence he is "fit for the job."

If you or anyone else want to argue his remarks on 9/27 render him unfit, then that's your burden of persuasion.

 

[NotreDame]

*edit, sorry this is long, trying to be thorough*

I agree with many parts of what you've written, including the importance of facts and reasonable inferences. I also agree with parts of your previous post, especially that Kavanaugh will be attacked for any unfavourable decision and that "similar conduct occurs". I do want to draw a distinction on something. Much of your defense of Kavanaugh rests on how his outburst should be interpreted. But I think the more important matter is how his outburst will (as opposed to should) be interpreted, especially if the court is to retain the appearance of impartiality.

So with that said, the outburst is a fact. (Something I'm unclear on, but the outburst was a part of his opening remarks which he had prepared the day before. Was the outburst a last minute addition, or did he have time to mull over his comments?)

The immediate issue then is of how to weight the outburst. Should one moment in a position of stress carry more weight than 12 years on the DC circuit? While I don't think the answer "no" is unreasonable, I don't think answer "yes" is unreasonable either. While it's plausible the outburst is a product of a very charged situation and an outlier not reflective of who he would be as a justice of the supreme court, it's also plausible the outburst reflects the clear bias of somebody who has had filters torn down, or also that it reflects a politically calculated maneuver. How does one know and what's the likelihood of each?

I'm going to argue that it doesn't matter. Taking the worst case scenario (for my argument), assuming the likelihood of the latter two aforementioned possibilities is low, and that the incident is most likely not reflective of who he will be on the supreme court, I believe the outburst should still be disqualifying because of:

) The left wing already generally rejects his jurisprudence and evaluating his judicial record for partisan bias isn't straightforward, so the basis on which they can trust him is his character. But he's now created an additional doubt about this, an unforced error, which he'll carry to the Supreme Court. Such a judge should not be forced on the left and the Supreme Court should be protected from such doubts as much as possible.

Rephrasing the above, if you were a defendant with a judge who had made a disparaging comment about Notre Dame alumni, would you be completely comfortable with such a judge? If so, why?

Further, in response to some of your previous statements:

a) While other people on the court do have partisan biases, shouldn't a part of the confirmation process be to weed out such people as much as possible? Why take an unnecessary risk?

b) I don't think "the appearance of impartiality has vanished easily" in this case. While it's true that in partisan times, people will inflate every little thing, in this case the outburst was his choice and there's little ambiguity in the statement itself. In this case "ignore it because of the context" requires a very subjective evaluation of the context, but the most straightforward explanation is that he meant what he said.

c) I don't think that "persuaded that his conduct ... reflective of how he will be while on the Court" is the appropriate benchmark in light of the above. The way this benchmark reads, to me is that he's entitled to the position, that him not being confirmed is some sort of punishment. It shouldn't be up to the left to persuade that his recent action is how he'll conduct himself while on his court, it's up to him to persuade that he is fit for the job. And in this, he made an error.

Rephrasing the above, if you were a defendant with a judge who had made a disparaging comment about Notre Dame alumni, would you be completely comfortable with such a judge? If so, why?

Perhaps. The content of the remark is important and the context in which the remark was made is important.

a) The existence of other candidates without this on their record. (Amy Coney Barrett *cough*) These are partisan times, and on the basis of protecting faith in the institution of the Supreme Court, isn't a better nominee somebody who can build bipartisan trust? At the very least, if a right-wing textualist is to be nominated, then shouldn't one without such an outburst remain preferable to one with such an outburst? America can do better.

Build bipartisan trust? Ha! I understand the phrase “bipartisan trust” to mean a nominee receiving very broad support by both parties. My memory may be hazy, but if I recall correctly, partisan divide for some nominees has occurred. Partisan divide has, perhaps inexorably, increased with frequency. Unless the nominee is some left leaning moderate to left wing, the Dems would oppose.

Let’s recall, Bork was defeated along partisan lines. Gorsuch was filibustered along party lines and McConnell and Senate Republicans ended the filibuster blockade by changing the rules to end a filibuster by a simple majority. Gorsuch was approved by a vote along partisan lines, the three Democrats voting for him hardly constituting as bipartisan. Alito was a 58-42 partisan vote, the 4 Democratic defectors hardly qualifying as bipartisan. And we can thank Schumer for the practice of filibustering judicial nominees.

Of course, Dems would support another RBG to the bench, but Repubs wouldn’t. Let’s dispense with Plato’s “Noble Lie” that this is a bipartisan process, with senators seeking bipartisan nominees.

At the very least, if a right-wing textualist is to be nominated, then shouldn't one without such an outburst remain preferable to one with such an outburst?

Should it? You clearly base this analysis on the comment. So, rationally, the answer to your query is how to treat his remarks on 9/27. If he is as “well qualified,” ABA designation, as the other candidates, and ABA did say he was “well qualified,” then do his remarks, and the other candidates lack of them, make him less preferable? No. Why? For reasons previously devoted to the topic of his remarks. Given the context, his remarks do not render him less preferable.

Such a judge should not be forced on the left and the Supreme Court should be protected from such doubts as much as possible.

“Forcing” a nominee on the opposing side is an inherent part of the process and at times inevitable. The doubts preceded his remarks. Dems were skeptical and had doubts about the nominee before any nominee was announced. The default setting of the Dems was set to doubt.

 

[AllButNone]

The "will be interpreted" is problematic. Why?

The same critique broadly applies to "should be", as well.

"Will be" is a concern if one cares about the prestige of the court.

But I did not resort to a subjective evaluation of the context. Instead, I cited to facts. The context is a non-judicial setting. The context was one in which two allegations, one alleging attempted rape, another public indecency, were made. The context was the widespread media coverage of those allegations. This context permits a proper evaluation of his remarks as someone who was [bless and do not curse][bless and do not curse][bless and do not curse][bless and do not curse]ed off, as opposed to something professing they would be biased. He is mouthing off out of anger, he is venting, which is understandable given the context.

You keep insisting your analysis is objective, but insistence doesn't make it so. There are alternate explanations for Kavanaugh's outburst. Your argument is contingent on a -big- assumption about him as a person, and that's that his emotional response falls under your perception of what's normal. But something that is true is that not everybody has the same emotional response to the same situation, and that you can't acknowledge this is extremely problematic for your own argument.

An alternate explanation for his outburst is that his outrage was calculated. There are pieces of evidence that fit this--that he has plenty of courtroom experience, that he went onto a partisan network to persuade an audience, an irregular op-ed in the WSJ, that he had time in advance to prepare his remarks. There are other alternate explanations that match the facts as well.

The surety with which you're approaching your own conclusion is not warranted. The truth here is unknowable without a type of examination and scrutiny that will never occur. This does not mean your explanation for his outburst is improbable. It may well be most likely. But it is not objectively true and this is the problem. (see below) And I'm not sure why somebody as smart as you won't concede this basic point.

Sure it is an appropriate benchmark. The issue is how he will conduct himself on the bench. Well, his 12 years on the bench for D.C. Circuit is an appropriate benchmark of how he will be on the bench.

Reading your response to this, it looks like I was unclear in the point I was trying to make, which was supposed to be about burden of persuasion.

I'm not disputing that his 12 years on the bench is a valuable indicator of his future performance. But it's only a part of the calculus. As you well know, "this happened in the past therefore this will happen in the future" is not sound logic. Oversight of the supreme court works differently than oversight of the lower court, and it's a pretty big assumption that a person operating under different constraints will behave in the same way as he'd previously behaved. This does not mean his record is useless, I personally can't think of a better single piece of evidence of his future performance. But the important word here is "single", and a recent and significant event does raise questions, including changing some of the prior assumptions under which his record was evaluated.

You've cited the ABA's recommendation, but you've neglected to mention that they too are reevaluating their assessment of Kavanaugh and asked the Senate to hold off on its vote. New information requires reassessment of previous positions.

Regardless of how you read it, I have not argued it that way.

If the burden of proof is on those who need to show he's unfit, then you certainly are. (see next paragraph)

That can't be right. If the left is going to claim he will be biased on the bench because of what he said on 9/27 then it is up to the left to persuade how and why his recent action shows he will be biased and how and why he will conduct himself in a biased manner while on the Court.

By putting the onus on the left, you've essentially relying on an argument from ignorance. "If they can't persuade he's unfit, then he is fit." But this is an inherently subjective evaluation, there's no possible way the left could ever clear this hurdle in any situation that is likely to arise. Your own statement can't be right.

It's also not possible for Kavanaugh to persuade he's fit for the same reason, so I'll concede I stated my own position poorly. A fair evaluation of Kavanaugh depends on the existence, or lack theof, of reasonable doubt as to whether he'll perform his duties impartially. Unsubstantiated allegations like sexual assault do not create reasonable doubt. Kavanaugh's own words, however, do. This cannot be escaped now, no matter what argument is put forward in his defense, because any argument on this issue is subjective. This is among the reasons why his outburst is disqualifying.

Build bipartisan trust? Ha! I understand the phrase “bipartisan trust” to mean a nominee receiving very broad support by both parties. My memory may be hazy, but if I recall correctly, partisan divide for some nominees has occurred. Partisan divide has, perhaps inexorably, increased with frequency. Unless the nominee is some left leaning moderate to left wing, the Dems would oppose.

Of course, Dems would support another RBG to the bench, but Repubs wouldn’t. Let’s dispense with Plato’s “Noble Lie” that this is a bipartisan process, with senators seeking bipartisan nominees.

I'm not asserting that I believe a candidate that would receive broad support from both parties exists, only that for people who care about the prestige of the court, it's a goal to strive for. Just because it's not achievable doesn't mean it should be abandoned. If both sides give up on this (which, I agree, they mostly already have), and just turn the supreme court into an ideological battleground, well... I don't know. To me that's ruinous.

It's up to the non-partisans to fight this as much as they can. Which is why I'm so perplexed by your support of Kavanaugh. After his outburst, putting him on the supreme court is tossing gasoline on a fire. The "will" rather than the "should".

“Forcing” a nominee on the opposing side is an inherent part of the process and at times inevitable. The doubts preceded his remarks. Dems were skeptical and had doubts about the nominee before any nominee was announced. The default setting of the Dems was set to doubt.

But Kavanaugh exacerbated the doubt. Does everything have to be so black and white? I'd already raised the point that there's a gradient here, back when I wrote: "If a right-wing textualist is necessary...preferable". Not every candidate is the same and the left wing response to every candidate won't be the same.

To empashize this, at the very least, consider that centrists have not soured on Gorusch, but they appear to have on Kavanaugh.

Should it? You clearly base this analysis on the comment. So, rationally, the answer to your query is how to treat his remarks on 9/27. If he is as “well qualified,” ABA designation, as the other candidates, and ABA did say he was “well qualified,” then do his remarks, and the other candidates lack of them, make him less preferable?

Just repeating, the ABA is now reexamining its analysis of Kavanaugh. The ABA at least seems to have filed this under "maybe". I am curious as to how they'll reappraise they situation. Perhaps they'll maintain his "well qualified", but I wouldn't be surprised if his desgination fell.

But my position is based on how the left (and frankly, the middle) will respond. A candidate without inflammatory rhetoric under his belt gives less grounds for criticism than one with inflammatory rhetoric. All other things being equal, and if one cares about the appearance of the court, the candidate without the inflammatory rhetoric is preferable. There shouldn't even be a debate about this question. The debate should be over how preferable.

Lastly, I'm afraid I don't really have time to continue the debate. Work, holidays coming up. If you feel I've glossed over an important point, feel free to point it out and I'll provide a rebuttal, but other than that if you take the time to respond, you'll get the last word!

 

[AllButNone]

The "will be interpreted" is problematic. Why?

I've given some thought about how to restate my own position a little more clearly.

Why should Kavanaugh get the job? If I'm understanding your argument correctly, you're saying, "because he is fit for the position". Which leads to the next question. How do we know he's fit? Your argument seems to be "we know he's fit because he's met some evidentiary standard." Which is perfectly reasonable, and I agree wholeheartedly with this direction of thought.

Where I disagree with you is your choice of evidentiary standard. A person being given a lifetime appointment to the highest court in the land, where his decisions will affect hundreds of millions, and he's not under the same ethical oversight as in lower courts, should be held to the highest evidentiary standard when it comes to the question of "is this person fit".

What I've been arguing, mistakenly, is the consequence of not meeting this evidentiary standard (which I do think is damaging to the supreme court) and that seems to be muddying the discussion.

*Late edit, what I've misunderstood is that you disagree with this evidentiary standard. (Why, and what standard is applicable?)

I understand your complaints about the politics of it all. Partisans both left and right have shown no interest in this issue, and the discussion should not be about what course of action politicians will take. Partisans will be partisans. The question here is, "what's the appropriate standard for a supreme court nominee and has Kavanaugh met that".

 

[Kaon]

The article is from The Atlantic, which may scare off some of the more conservative posters on this forum, but it's written by a fellow of the Brookings Institution who has known Kavanaugh for a long time and often spoken highly of him. Most of the points in it have been made in various places here before, but it's nice to see them all tied up together, and I feel that it encapsulates my feelings on the matter pretty well.

Full Article Here

Oh well. He is confirmed now.

 

[Albion]

The question here is, "what's the appropriate standard for a supreme court nominee and has Kavanaugh met that".

If we consider the appointees from the past half-century or so, its not especially high. But the most obvious point of reference in Kavanaugh's case is his relatively lengthy service on the nation's SECOND HIGHEST court, which does essentially the same work as the Supreme Court. From all that I know, and what close observers have said, he served with distinction.

 

[AllButNone]

But the most obvious point of reference in Kavanaugh's case is his relatively lengthy service on the nation's SECOND HIGHEST court, which does essentially the same work as the Supreme Court. From all that I know, and what close observers have said, he served with distinction.

Keeping in mind that he was still serving on the court at the time of his confirmation hearing and the hearing has raised a number of ethical complaints and some reevaluations of his service such that this is now in question. If this is your standard, then he was, at the very least, confirmed prematurely.

If we consider the appointees from the past half-century or so, its not especially high.

I'm not convinced by that argument. Even if it is true (and I'm not convinced it is) that's not a prescription for how things should be. One could easily raise the argument that the reason things are becoming so partisan is because a high standard was not applied.