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A confirmation hearing is a job interview, not a trial: Candidates for Judgeships Have No 'Presumption of Innocence'

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By Dave Lindorff

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Whatever your view of Brett Kavanaugh, let's get one thing clear: While he's hoping to become the ninth justice of the US Supreme Court, he is not on trial. He is facing a confirmation hearing by the Judicial Committee of the US Senate.

Republican backers of this clearly flawed and truth-challenged candidate are insisting indignantly, in the case of mounting charges from alleged victims, that he's entitled to a "presumption of innocence" as several women claim he assaulted and harassed them as a teenager and perhaps when he was older, and amid evidence that he had a "runway model" standard for hiring female clerkship applicants as a judge on the Third Circuit Court of Appeals in Washington, DC which led Yale Law professors to recommend that female student applicants to clerkships for Kavanaugh "dress accordingly." (As one prominent professor is reported to have told such students, "There's a reason all his female clerks look like models.")

But that's not how it works in a Senate confirmation hearing, any more than it's how it works when you or I go to a job interview. Does an employer give an applicant a "presumption of innocence" when they contact prior employers to check on your work record?

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Of course not. If I were applying for a job at a newspaper, the hiring editor would likely call prior papers I had worked at. If an editor there happened to be the one I told was simply caving in to pressure from big advertisers in killing a story I had done on corporate corruption in the appealing of tax assessments on major office building properties using two different sets of books for determining property value, and that person said I was "difficult to work with," I would have no recourse.

I would be deemed guilty as charged, and moreover, I quite likely wouldn't even have that Constitutionally guaranteed right to "confront my accuser," because the hiring editor would have no obligation to even inform me of the evidence that was being used against me. That's the way job applications work in the United States of America.

In that sense, unless a Senate Committee decides to hold a closed hearing, a confirmation hearing like this one for Judge Kavanaugh is considerably fairer than the situation most job applicants face. At least Kavanaugh, and other judicial candidates facing such hearings, gets to know what the charges are that are being made against him. That is at least if the majority party in control of the hearing doesn't try to deep-six an accusation and pretend it doesn't exist, as the GOP members controlling the Judiciary Committee tried to do with the second woman, Deborah Ramirez.

For the rest of this article by DAVE LINDORFF in ThisCantBeHappening!, the uncompromised, collectively run, six-time Project Censored Award-winning online alternative news site, please go to: www.thiscantbehappening.net

 

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Dave Lindorff is a founding member of the collectively-owned, journalist-run online newspaper www.thiscantbehappening.net. He is a columnist for Counterpunch, is author of several recent books ("This Can't Be Happening! Resisting the (more...)
 

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Bill Johnson

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No presumption of innocence?


No presumption of guilt either.


Show proof.


No evidence?


No story.


The real injustice here is the character assassination going on.

Submitted on Wednesday, Sep 26, 2018 at 4:59:44 PM

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You don't need proof in deciding whether someone is a good hire. If you have multiple women saying the guy's abusive, if you have deans and profs at Yale saying admitting that they've been telling women law grads that Kavanaugh's clerks "all look like models," and they'd better dress accordingly if they want a job there, if Yale undergrad and law classmates are saying that he was in the group of guys abusing women, that's a pattern. It's like with Cosby. Only one conviction but over 50 women with the same basic story. In Kav's case it's so far two maybe three women, but they didn't know each other and their stories are from different times and locations, but are the same. If he were innocent in this situation he'd ask for a FBI investigation. But no.

Anyhow, he also perjured himself, as the released emails show, in his first judicial confirmation, saying he didn't know about stolen emails from Democratic Judicial Committee members, when the stolen emails now show he did know. And we're going to have him as a Supreme?

Gimme a break.

Fukim! Even Trump can do better.

Submitted on Wednesday, Sep 26, 2018 at 7:32:11 PM

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The best predictor of future performance is past performance. As any damn fool well knows. The burden of proof is on Kavenuts to show his worthiness for the job. Maybe you can help him? Please do, if you have two serious cents to add.

Submitted on Wednesday, Sep 26, 2018 at 7:45:10 PM

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Reply to Daniel Geery:   New Content

In fairness, there were some jerks in my class in high school and they turned out to be pretty neat people. Bad behavior can be juvenile behavior. But I would say that the reports that Kavanaugh hires his law clerks for their looks, which comes from deans and powerful law professors at Yale, is pretty damning evidence that he's the same objectifier of women today that he was as a 17-year-old jackass.


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Submitted on Wednesday, Sep 26, 2018 at 8:07:29 PM

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I was a victim of 12 years of catholic school. My best recollect is that working in harmony with our genitals would fetch us a hellish life in the hereafter, foreverafter! Kavenuts didn't pay attention. On some deep crazed level, I have a nanogram of respect. But the best predictor of future behavior is past behavior. I zipped it up, at great pain and as a never-ending sorrow, that bastard should have at least done that! But he didn't and thus should be ostracized and eternally mocked. That gd bastard... !

Submitted on Wednesday, Sep 26, 2018 at 9:50:48 PM

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PCM

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* Exclusive prep school? Check.

* Ivy League college? Check.

* Frat boy? Check.

* Ivy League law school? Check.

* Federalist Society? Check.

* Any countervailing life experiences triggering an epiphany and a major change of course? Nope!

I don't actually need to know whether Kavanaugh was "one of the boys" back in high school. I don't need to know how "fine" a "jurist" he might be. This insulated, rotely manufactured servant of America's parasitic elite wouldn't even make my long list.

I wouldn't count on the Democrats' successfully borking or impeaching Kavanaugh, however, regardless of how the hearings turn out. (Still, it's fun to hope and dream, right?) Railing against the likes of Trump and Kavanaugh is their only remaining selling point, so they have to ensure a steady supply of people to rail against.

(A reminder in this connection: Senate Democrats could have seated Obama nominee Merrick Garland in a couple of days, had they changed cloture rules for Supreme Court confirmations as they already had for most other confirmations earlier in the term. Republicans defeated the Garland nomination by filibuster, and when the tables were turned, for Neil Gorsuch, the Republicans took the filibuster away -- as any low-grade political moron could have foreseen, except of course, voters who still think Democrats are the lesser evil. In a very real sense, Senate Democrats are directly responsible for seating Brett Kavanaugh's fellow Georgetown Prep alumnus Neil Gorsuch, and would have been for whatever other Federalist Society ideologue Trump might have nominated in Gorsuch's place.)

Submitted on Wednesday, Sep 26, 2018 at 8:54:11 PM

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Dave, I generally agree with everything you write. But here, I find a discrepancy in comparing an appointment to a public office to the common "job interview"...

If I was applying for a job, and the prospective employer receives false information about me, either from a previous employer or whatever, I may never know about that, or why I didn't get the job.

But, should I find this false information coming from a former employer is circulating a causing me to be blackballed by my industry, I would have cause to sue that former employer for slander or libel. (Hold on to that point...)

If I'm applying for a public office, my "application process" would be PUBLIC. Therefore, all negative "references" (whether true or not) would also be public. This means that controversial feedback should be given MORE SCRUTINY, as falsely portraying someone in public can and does cause irreparable damage, and automatically runs into slander or libel territory.

That's part of what Due Process and Presumption of Innocence are all about. Otherwise, you get "trials by media" replacing proper trials by court, and false information gets spread without legal recourse.

Whether or not I think Cavanagh is a snake, I still think he (or anyone else in a comparative situation) deserves the basic rights to Presumption of Innocence and Due Process.

The proper thing to do here could be to delay the appointment (there's no need of a deadline), and explore whether there's any legal substance to the "charges". Should there be cause, have that trial, and move on.

The trouble is, if he's not guilty of the things he's being accused of, the damage has already been done to him, thanks to trial by social media. And, we all know how common political character assassinations are.

Submitted on Wednesday, Sep 26, 2018 at 10:54:27 PM

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Well of course you're right, and Kavanaugh, if he cared about his reputation, could ask the committee, the majority of which are his backers, to extend the hearing so that all the charges against him can be aired and, if fraudulent or unsupported, exposed as such. As you say, there is no rush, since the lame-duck session of the current Republican led Senate could confirm him anytime before the new Congress is seated in mid-January. But this isn't about getting at the truth, it's about craming in a fifth right-wing judge on the bench.

Don't feel bad for Kavanaugh. Jeez. If you want to go into politics, and trying to get on the Supreme Court is politics, you have to expect to get roughed up. "presumption of innocence?" Really. Do you remember all the crap that the right, including our current president, threw at Obama for eight years all based on no evidence. Were you calling for presumption of innocence then? It's just the way politics goes. Kavanaugh wants this job, so he's got to take the hits. Tough nuggies.

Submitted on Wednesday, Sep 26, 2018 at 11:45:46 PM

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I get all that, Dave.

But, I think the one point we shared is significant, that being the lack of urgency to this appointment. I agree, that the candidate should be calling for the extension, etc.

What I'm led to believe, by the way all this is going, is that there is, indeed, a push going on, and Cavanagh is being pressured to go along.

Don't get me wrong, Dave - I definitely have no concern for what happens to Cavanagh, per se. I just see a dangerous trend going on in the U.S. It seems propaganda agents have grabbed onto a few "sensitive" social issues and are using them to hijack their movements (example: #MeToo) and divide the country further, and continue distracting everyone from what the Great American War Machine is doing.

In the doing, some basic rights appear to be getting lost, as everyone who cheers on the persecution is contributing to nullifying their own rights to Due Process. From what I understand, if you don't demand, exercise and protect your rights, you lose them. And lost rights are rarely reclaimed.

I should clarify that I'm Canadian, so I don't have a true personal "stake" in American politics. But I do try to follow it, as much of what happens in the U.S. has been having a detrimental effect on the rest of the world. I will say, I haven't been extremely impressed with very many American government candidates or elected reps since I can remember.

To me, Obama was just another puppet, like all the rest. Whoever gets in that office never seems to deliver that "change" they always promise, and he certainly didn't either.

Trump seems to be the ideal distraction for the people working behind the scene.

Submitted on Thursday, Sep 27, 2018 at 5:27:52 AM

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Reply to Devil's Advocate:   New Content

I agree with all you've said. I simply want to make the point that a Congressional hearing on a nomination for a government post is not a trial, and the sudden calls for "presumption of innocence" are being made by members of a party that don't demand that for immigrants, legal or otherwise, for people who are arrested and charged with crimes, for Democrats or progressives running for office, for President Obama (who for all his many faults and flaws, was not born in Kenya, was not a Communist, and was not an advocate for Sharia Law).


Submitted on Thursday, Sep 27, 2018 at 10:45:54 AM

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Yes, there's lot of irony in all they say and do. They all take their turns going on about the evils of their opponents, other governments, and other cultures, when we know it's all just a deflection of their own behaviour. (Trump's recent UN speech sure qualified.)

Or they just outright lie. Obama looked the American public straight in the eye as he told the fairy tale of his heroic Navy Seal dispatch killing Osama bin Laden.

They're all a bunch of snakes, and their Canadian "counterparts" are no different. We somehow accept their lies as "part of politics". But, does that mean we all need to accept gossip, hearsay, propaganda and unsubstantiated evidence as legitimate alternatives to legal, constitutional protocol in all other areas of life??

Is it really okay to just start launching accusations at anyone we don't like, and letting the magic of social media take its toll on that person, without that burden of proof that is supposed to go along with it?

Rights are supposed to exist everywhere - not just in the court room. There are supposed to be protections from slander and libel. The present trend actually bypasses all that. People who make false accusations are not being held to account, while some people may be unjustly losing their careers, companies and societal status to the mere cry of "sexual abuse", and there hasn't even been that trial you're talking about.

Somewhere, a big crack in the law formed, and social media popped out and became the "courtroom of no appeals".

Submitted on Thursday, Sep 27, 2018 at 4:28:50 PM

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The real question here should be why this "job interview" isn't scrutinizing the "applicant" over his past "accomplishments". As Josh Mittledorf points out...

"If the Dems had any cojones, they would be attacking him on the basis of his political record, not debating whose 36-year-old memories are more accurate. This is a man who worked on the Monica Lewinsky sting operation and who led the legal battle to call off the Florida recount in 2000. On the court, he wrote an opinion that employers had the right to demand that employees sign a waiver of their right to strike as a condition of employment. In another opinion, he declared that the presence of undocumented aliens among a class of employees who voted overwhelmingly to unionize voided the entire voting process."

These facts alone should be enough to question his suitability. I'm sure there are more. But instead, we have this circus.

Submitted on Thursday, Sep 27, 2018 at 5:03:25 PM

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The problem with this point of view is that you will never get good candidates nominated and approved.

We have all done things in the past that can be called legitimate mistakes that we would rather not come out. Now, using your logic, these mistakes can be used to destroy a nominates life.

And this does not even count false accusations manufactured by the opposing party.

Right now it is being used for a candidate you do not like. Now wait when it is used against a candidate you do like.

Finally, using your point of view, a nomination can now destroy a candidate life. People will start refusing to even accept the nomination if they know that baseless accounts will destroy them.

I am sorry, people on both sides of the spectrum should be concerned about what is going on with guy nomination.

(BTW, I am not saying I like the guy, all I am saying is if he is rejected, it should be for the right reasons. Not for unproven allegations.)


Submitted on Thursday, Sep 27, 2018 at 12:55:01 PM

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You will never get good candidates nominated and approved?

Why?

Submitted on Thursday, Sep 27, 2018 at 4:08:11 PM

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I thought he just did a pretty good job of explaining why.

Submitted on Thursday, Sep 27, 2018 at 4:36:21 PM

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Reply to Devil's Advocate:   New Content

No, there are good candidates that have nothing to really be worried about.

Those of us "who did things we don't want come out" are not good candidates.

Remember, we only need nine justices.

There are nine decent people in the US, at least, let us find them.

Submitted on Friday, Sep 28, 2018 at 3:32:11 PM

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You are 100 percent wrong.

There are plenty of stuff that I have done that I would rather not come out. That does not make me a bad candidates. We have all made mistakes. I am not talking about real crimes, I mean honest mistakes where we know we only did it because we were young and stupid.

I am not saying I am in favor of giving people a free pass because they are young. All I am saying is we have all done stuff that is not necessarily criminal or immoral but would rather not see the light of day.


Furthermore, what is happening to Brett Kavanaugh is simply character assassination. There is no evidence or proof of what transpired. And if that keeps him out of the supreme court, that is 100 percent wrong.


But if these charges and these charges alone keep him off the court, that character assassination will keep other justices off the supreme court, including people that you might want on the court.


Submitted on Friday, Sep 28, 2018 at 5:55:31 PM

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You, I am sorry, are not a good candidate for the Supreme Court. People who made mistakes and still want to do that job right will endure any scrutiny and 'suffer' the retribution if needed.

Those are the people we want.

Submitted on Friday, Sep 28, 2018 at 7:00:25 PM

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In other words, if you make a mistake, you are a poor candidate.

Wonderful, that means no one can serve in the supreme court.

Submitted on Friday, Sep 28, 2018 at 9:13:38 PM

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Reply to jim smith:   New Content

No Sir, you misinterpret me.

If you make a mistake and are willing to face its exposure, you are good for the Supreme Court.

If you want it private, live a private life.

And some mistakes are trivial, don't you think?

Submitted on Saturday, Sep 29, 2018 at 4:01:21 PM

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ALL people are entitled to keep some things private. In fact ALL people want to keep some things private. Just because you want to keep some things private does not mean you are not good for the Supreme Court. Your POV guarantees that NOONE will want to serve on the court or in public service for that matter.

Submitted on Sunday, Sep 30, 2018 at 1:42:13 AM

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Reply to jim smith:   New Content

Nobody is entitled to a public office.

And no crime against other person is part of your privacy.

Only decent people should be judges and justices.

Submitted on Monday, Oct 1, 2018 at 3:09:51 PM

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Is this not a case of the ends justifying the means and all that ethically and morally conjures? Is this about saving the Supreme Court from being more of what it's become or a simple (childish) game of we win/you lose? Is there a greater good at hand that needs protecting from an evil and so we must do whatever it takes to stop it's occurrence? Will we, as a people, at bloody war with the world, find redemption in thwarting this appointment?

Submitted on Thursday, Sep 27, 2018 at 3:59:00 PM

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Many questions, what do you think?

Submitted on Saturday, Sep 29, 2018 at 4:02:16 PM

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