#8B REPs fixed rules to undermine Ford’s claim re Kavanaugh

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By George H Butcher III

Table of Contents for Blog #8B

Republicans fixed the rules they applied in assessing Dr. Ford’s sexual-assault allegation against Justice Kavanaugh to make it as easy as possible to reject

The Republicans fixed the rules they admit to applying in evaluating Dr. Ford’s sexual-assault allegation against Justice Kavanaugh to make it as easy as possible to reject victims’ claims against their nominees. Then they made it even easier to reject her accusation. They sneakily required evidence beyond-a-reasonable-doubt in order not to confirm him.

Fixing the rules is part of the Republicans’ comprehensive systematic misogynistic approach for undermining and rejecting sexual-assault allegations. It involves components 5, 6, and 7 of their system. By fixing the rules, the outcome can be preordained, making it almost pointless for sexual-assault victims to come forward.

Unless actions are taken by the Democrats and the news media, victims will be discouraged from coming forward. Unless the narratives produced by their systematic approach are challenged, permanent damage will be done to the #metoo movement.

Those necessary actions by Democrats and members of the news media don’t require anything special. They only require that Democrats and journalists simply do their jobs.

How did we get to this point?

Blogs #8A and #8B describe how Republicans created the illusion that there is no corroborating evidence for Dr. Ford’s sexual-assault allegation when that is the opposite of reality. Blog #8A describes the Republicans’ comprehensive systematic misogynistic approach for undermining and rejecting sexual-assault allegations against their nominees.  

This Blog #8B describes how the Republicans manipulated the rules to facilitate rejecting victims’ sexual-assault allegations. Also, it addresses the damage that the Republicans are doing by using their systematic approach to reject truthful sexual-misconduct allegations.

Their evidence standard betrays a disinterest in or opposition to the #metoo movement

Senator Collins initially claimed to be using a “more likely than not” evidence standard. Thus, if it were only 50% likely that Justice Kavanaugh sexually assaulted Dr. Kavanaugh and gave false testimony about it, Senator Collins and the Republicans would vote to confirm him to a lifetime position on the Supreme Court. But they would supposedly reject a nominee for whom the probability of guilt is 51% or more.

Even that approach betrays a bizarre Republican perspective about the unimportance of protecting women’s rights and victims’ rights. It reflects their disinterest in supporting the #metoo movement.

The Republicans are communicating by their actions that those things are not important, or possibly that they oppose them. They prioritize the aspirations of their male nominees. They don’t prioritize the interests of victims and of the people who will be affected by the nominee’s official actions.

If there were a 33% likelihood that a judicial nominee committed a violent sexual assault and gave false testimony in denying the claim, it would be irrational to argue that he should be hired for the job. The issue isn’t being fair to the nominee. It’s fairness to and protection of the public.

They made things worse by using a presumption of innocence for a job applicant

The Republicans didn’t actually apply the more-likely-than-not evidence standard in considering Justice Kavanaugh’s nomination. Senator Collins openly advocated using a “presumption of innocence” in evaluating Dr. Ford’s sexual-assault allegation.

Using a presumption of innocence would likely tip the scale toward ignoring any sexual-misconduct allegations made against a Republican nominee. In a true he-said, she-said case, it could used to justify confirmation by ignoring credible testimony of the alleged victim.

The Republicans’ position, taking account of their presumption of innocence, produces an unacceptable result. A nominee with a probability of being guilty significantly higher than 50% would be confirmed, e.g., 66%. Given that position, there must be considerations which make confirming guilty nominees either an acceptable or desirable outcome.

Senator Collins said the “presumption of innocence is relevant to the advice and consent function when an accusation departs from a nominee’s otherwise exemplary record.” So, she would apply a presumption of innocence to nominees who aren’t provably serial predators.

The Republicans used a presumption of innocence to ignore multiple allegations against Justice Kavanaugh

But Senator Collins also used a presumption of innocence to ignore allegations indicating that Justice Kavanaugh is a serial predator. She stated in her speech that the presumption was important in order to reject some of the accusations against Kavanaugh”

“Some of the allegations levied against Judge Kavanaugh illustrate why the presumption of innocence is so important. I am thinking in particular not at the allegations raised by professor Ford, but of the allegations that when he was a teenager Judge Kavanaugh drugged multiple girls and used their weakened state to facility gang rape.”

Senator Collins simply presumed that the allegation wasn’t credible, without any intellectual basis for doing so. But Kavanaugh is provably guilty of the attempted gang-rape of a 15-year-old girl who had been drinking beer. Moreover, the idea of simply dismissing an allegation against a judicial nominee, without any justification, is unsupportable.  

Senator Collins used the presumption of innocence to ignore the evidence that Justice Kavanaugh doesn’t have an otherwise exemplary record. So, she ignored evidence that he is a serial predator. Then she again used the presumption of innocence to ignore Dr. Ford’s accusation, based on him having an otherwise exemplary record.

And Senator Collins voted to confirm a nominee who is provably guilty of sexual assault. So, there is something very wrong with the standards that she advocated applying.    

Using a presumption of innocence is a core element of the systematic approach for rejecting sexual-assault allegations

Senator Collins portrayed using a presumption of innocence for judicial nominees as vital to the survival of country. She stated that

“certain fundamentally legal principles about due process, the presumption of innocence, and fairness do bear on my thinking, and I cannot abandon them.”

“In evaluating any given claim of misconduct we will be ill served in the long republic if we abandon the presumption of innocence and fairness tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.”

Senator Collins placed a priority on “fairness” to an accused predator over protecting the public from a potentially unsuitable justice. She even claimed the use of a presumption of innocence is important to “public faith in the judiciary.” That’s bizarre.

Conversely, she argued that not using a presumption of innocence “would be hugely damaging to the confirmation process.” That’s bizarre.

The impact of using a presumption of innocence would be to discourage women who have been victimized from coming forward. On the other hand, not using such a presumption would give victims a reason to expect that their stories might be taken seriously and might have an impact on the result of the confirmation process. It’s apparent that the Republicans oppose the latter outcome.

Using a presumption of innocence means that the Republicans would routinely confirm nominees who are guilty

A presumption of innocence is inconsistent with a more-likely-than-not standard of proof. It indicates that the Republicans were using an even higher and less appropriate standard for rejecting Justice Kavanaugh’s nomination. They were admittedly using an evidence standard between more-likely-than-not (51% probability of guilt) and beyond-a-reasonable-doubt (99% probability of guilt) as the threshold for rejecting his nomination.

Using that approach, nominees who are probably guilty would routinely be confirmed. Even viewed in the most favorable possible light, the Republicans had to know in confirming Justice Kavanaugh that he was highly likely to be guilty.

The Republicans’ approach to addressing sexual-assault allegations should be viewed both in terms of its specific and its cumulative impacts. The specific impact is that the Republicans will confirm nominees despite credible sexual-misconduct allegations unless there is independent corroboration which is public and which they are unable to ignore or hide. The practical impact is that they will ignore virtually all sexual-assault accusations against their nominees.

They used a prosecutor’s report on Dr. Ford’s allegation to further distort the process and to distort the truth

In the Kavanaugh confirmation proceedings, prosecutor Rachel Mitchell was hired by the Republicans to implement component 7 of their systematic approach. That can be inferred from her conduct, which is described in Blog #9. But nominally, she was hired to prepare an independent report.

However, even beyond the specific catastrophic issues with Ms. Mitchell’s report, the idea of hiring a sex-crimes prosecutor to evaluate an allegation against a nominee is flawed. The confirmation process involves the evaluation of a job applicant, not a criminal defendant.

Prosecutors work with an evidence standard that only makes sense in a criminal proceeding. They would never, in the ordinarily course of their work, apply an evidentiary standard that is appropriate for use in considering a job applicant.

The flaw in using a prosecutor’s report would be even more pronounced if the prosecutor doesn’t even purport to apply the appropriate evidence standard in her analysis. That was the case concerning Ms. Mitchell’s report. She used the beyond-a-reasonable-doubt evidence standard throughout her report and only mentioned the more-likely-than-not evidence standard in passing.

Ms. Mitchel should have testified under oath regarding her report

Ms. Mitchell functioned as a supposedly expert “witness.” But her highly deceptive report wasn’t even made under penalties of perjury. Furthermore, she wasn’t cross-examined about the contents and conclusions of her analysis, as is typical with an expert witness.

The flaws in Ms. Mitchell’s report would have been manifest under cross-examination. Indeed, her report would have been a very different document if she knew she would be required to defend it.

The Republicans sneakily used Ms. Mitchell’s report to apply the beyond-a-reasonable-doubt evidence standard.

In using a prosecutor to prepare a report, the Republicans covertly interjected the “beyond a reasonable doubt” evidence standard into the discussion of Dr. Ford’s allegations. Thus, they used Ms. Mitchell’s report to even more egregiously fix the outcome in favor of Justice Kavanaugh. Through her report, they used an evidence standard that they weren’t even willing to argue should apply.

The beyond-a-reasonable-doubt evidence standard is relevant only in criminal proceedings. There is no reason to mention it in any confirmation proceeding. That goes double for a judicial nominee who, if confirmed, would serve for life.

Blog #9 will discuss Ms. Mitchell’s report. The flaws in her analysis extend far beyond using an irrelevant and inappropriate evidence standard in evaluating Dr. Ford’s accusation.

The cumulative impact of the Republicans’ willful conduct in rejecting sexual-misconduct allegations is dramatic and unacceptable

The cumulative impact of their systematic approach is that Republican appointees, including to the judiciary, will include a significant number of sexual predators and misogynists. The impact is exacerbated because, by design, they are discouraging victims from even coming forward. That will make it impossible even to accurately catalog the cumulative damage that they are doing in confirming unsuitable nominees.

Given the overtly dishonest manner in which the Republicans addressed Dr. Ford’s allegations, an adverse presumption should be made in every similar circumstance. In each instance in which they have confirmed a nominee, despite sexual misconduct allegations, it should be presumed that their conduct was similarly dishonest and that the allegation was legitimate.

How could the Republicans have convinced people to believe or accept their narrative?

Concerning Dr. Ford’s allegation, the critical question isn’t how the Republicans could have convinced nearly everyone that there is no corroboration of Dr. Ford’s allegation. It’s how they could have convinced anyone.

Common-sense proof #1 – that the July 1, 1982 house-party is the event described by Dr. Ford – is too simple to have been missed by any sophisticated observer. See Blog #7C. That is especially the case since Senator Whitehouse specifically called attention to the significance of the July 1 event.

Every senator and observer had to know that the July 1, 1982 house-party was the only event on Justice Kavanaugh’s calendar that remotely fit Dr. Ford’s description. Thus, all of them had to know that the two events are the same unless Dr. Ford made up or imagined the event and the sexual assault that she described.

The possibility that Dr. Ford made up or imagined the event and sexual assault should have been viewed as virtually nonexistent, even just based on common sense. Solely on that basis, it’s unimaginable how anyone could have been convinced that the two events were not the same?

Moreover, the minuscule possibility that Dr. Ford fabricated or imagined the event she described and the sexual assault should have been eliminated on reflection because of the number of similarities between the event she described and the July 1, 1982 house-party. Thus, no one could have rationally considered there to be any possibility that the events are not the same.

The Republicans had to create the illusion that there are facts which disprove the reality

So, how then did the Republicans do it? How did they create the illusion that there are facts which contradict the conclusion that the two events are identical when that’s impossible since the events are provably the same?

Objectively, that effort should have failed. But many people and media organizations which aren’t supporters of the Republican con job, and which shouldn’t have fallen for the con job, either:

• Were convinced that there is no corroborating evidence,
• Were sufficiently influenced or intimidated by the Republican juggernaut that they lost faith in their ability to oppose the dishonest Republican narrative, or
• Consciously chose for some other reason to let the Republicans’ despicable conduct go unchallenged and unreported.

The first alternative shouldn’t have been a possibility, as described above. Unfortunately, the second alternative would have been understandable in many cases. That outcome was accomplished using the Republicans’ systematic approach for undermining and rejecting sexual-assault allegations.

The third alternative applies to major media organizations that clearly knew better and that are too powerful to have been intimidated into silence, or at least shouldn’t have been intimidated. That alternative suggests the existence of collaboration short of active support within the news media and will be the subject of Blog #12.

The Republican system is a juggernaut!

Multiple components of their systematic approach were critical to achieving the result – that the people and press were conned. Viewed collectively, the components of their system are a juggernaut. Their system will truly become unstoppable unless it is publicly exposed and discredited ASAP.

The contributions of Senator Collins and her Republican colleagues in the Senate in supporting the con job were discussed in Blogs #7A and #7B. Senator Collins made an additional massive contribution to the con job by making manipulating the rules to disadvantage sexual-assault victims sound like apple pie.

The crucial role of Ms. Mitchell’s report will be described in Blog #9. Mr. Green’s reliance on Mr. Mitchell’s report to justify an unsupportable conclusion highlights the materiality of its impact.

The roles of journalists in supporting the Republicans’ false narratives were discussed in Blogs #7C, #7D, and #8A. And the failure of the mainstream press to report as it should have, on the evidence of Justice Kavanaugh’s guilt, will be the subject of Blog #12.

Justice Kavanaugh himself was a significant contributor to the con job’s success. That’s because within the Republicans’ systematic approach, the more despicable the nominee, the higher the probability that he will be confirmed. Conduct by Justice Kavanaugh that should have been disqualifying many times over was not only ignored but rewarded.

The Republicans are on the verge of permanently damaging the #metoo movement

The Republicans are on the verge of permanently damaging the #metoo movement because the outcome is preordained due to their comprehensive systematic approach. Recall that everyone who observed the confirmation proceedings has reason to know that Justice Kavanaugh is guilty of sexually assaulting her.

So, everyone knows that the facts don’t matter. But few people, if any, would understand how organized their actions are or would recognize the existence and scope of their comprehensive systematic approach.

Notably, the Republicans aren’t trying to hide their objective of confirming their nominees without regard to allegations of sexual misconduct. By adopting a presumption of innocence, they have purposefully telegraphed to victims that there is no point in coming forward.

But the Republicans don’t just want an unfair advantage; they want certainty. That’s why they sneakily adopted a beyond-a-reasonable-doubt evidence standard to facilitate rejecting Dr. Ford’s allegation. They did that by hiring Ms. Mitchell to prepare a prosecutor’s report.

The Republicans’ systematic approach for rejecting sexual-assault allegations is designed to ensure their nominees are confirmed. The goal is to ensure that outcome without regard to the credibility of the accusation or the absurdity of confirming the nominee as opposed to just selecting another job applicant. Their system is designed to crush the hope out of victims that speaking up could make a difference.

Dr. Ford expected the worst, yet bravely came forward.

When Dr. Ford came forward to challenge Justice Kavanaugh’s confirmation, she feared that she would be the victim of an assault on reality. She knew enough about the Republicans’ treatment of sexual-assault victims, at least subconsciously, to expect that her allegation would be rejected.

Her expectation echoes the understanding of the journalists who know the Republican defense of Justice Kavanaugh was dishonest, but who lacked faith in their ability to challenge it through honest and competent reporting. Yet, Dr. Ford showed the courage to try to protect the country from someone she knew to be grossly unsuitable to be a Supreme Court justice.

Republicans will discourage victims from coming forward unless Democrats and the press do their jobs

The Republicans will achieve their objective of dissuading victims from coming forward unless we do something to change the dynamic. What needs to happen involves actions by the Democrats and by the major nonpartisan media organizations.

In both cases, those actions simply involve doing their jobs. Those required actions will be discussed in Blog #11, concerning the Democrats, and in Blog #12, concerning the news media.

There is a unique opportunity to stop the Republicans’ despicable conduct and to protect women

Since the claim that there’s no corroboration for Dr. Ford’s story is the opposite of reality, the Republican narrative, in this case, was always a house of cards if challenged. The Kavanaugh proceedings represent an instance in which the Republicans have ironically been caught with their pants down.

They confirmed Justice Kavanaugh despite unimpeachable corroboration for almost all of Dr. Ford’s story. Moreover, such corroboration makes it clear that Justice Kavanaugh is guilty of sexually assaulting Dr. Ford. That creates a unique opportunity to take corrective actions that is unlikely to recur.

So, inaction at this moment is not an option! That imperative applies to both the Democrats and the news media.

One effect of taking the required actions would be to correct the record. And establishing a public record about Dr. Ford’s honesty and Justice Kavanaugh’s depravity would be enough by itself to justify action.

A second impact would be to educate the public, particularly women, about the threat to them and their daughters that is posed by the Republicans’ comprehensive systematic misogynistic approach for rejecting sexual-assault allegations. A third impact would be the impeachment and removal of Justice Kavanaugh.

However, the ability to challenge the Republicans’ systematic approach for undermining and dismissing sexual-assault allegations is unique to this set of facts. That the Republicans confirmed a provably guilty nominee, who they knew is guilty, creates an opportunity to expose and challenge their entire systematic approach. But that opportunity is a decaying asset with a very short half-life.

Looking Forward

Blog #8C will examine the statement in the Supplemental FBI Investigation Executive Summary that the FBI confirmed that “there is no corroboration” of Dr. Ford’s sexual-assault allegation against Justice Kavanaugh. The Senate Judiciary Committee, not the FBI, released the Executive Summary. Senator Grassley chaired the committee at that time.

Based on the proofs discussed throughout this series of blogs, Dr. Ford was present at the July 1, 1982 house-party. So, Justice Kavanaugh’s calendar entry corroborates virtually all of her recollections about the event where she was sexually assaulted.

Thus, the conclusion that there is “no corroboration” of Dr. Ford’s allegation reflects either:

• malfeasance by the FBI in its investigation or
• malfeasance by Senator Grassley in misrepresenting the FBI’s conclusion.