THE TRAGIC ODYSSEY OF JUDGE KAVANAUGH AND DR FORD

I watched all of the Senate Judiciary Committee hearing with Dr Ford and almost all of Judge Kavanaugh’s testimony on 27 July 2018.  (Choir practice took me away after 6 pm EDT.)

As I watched through to the end, it struck me that I was watching two good people being sacrificed on the Democrats’ altar of petty anger and political ambition.   The Democrat Senators were oh-so solicitous of Dr Ford.  And they should have been, for they waited for over three months to say they really care for a brave woman.  And in their blind desire to damage the President, they chose to smear an honorable man and another innocent family.

By now, I have probably enraged most people on either side of the worst political chasm in our history, at least since 1860.  For those of you willing to engage your minds, and I know that you are out there, here is my take on this fiasco.

I believe both of them.

I believe Dr Ford.  Her anguish was palpable and heart-breaking; her demeanor rang true; her testimony about the attempted rape followed the same course (with some exceptions) of what I have heard from the victims in rape cases which I tried or supervised.  There is absolutely no doubt in my mind that somewhere in suburban Maryland on a night in the Summer of 1982, 15 year old Christine Margaret Blasey, to some extent under the influence of alcohol—beer--was the innocent victim of a vicious, unprovoked assault that would have constituted aggravated sexual assault in almost any jurisdiction, and possibly attempted rape.  I believe her when she says she feared for her life.  I believe that she was acutely traumatized. 

I do not believe, however, that young Brett Kavanaugh was her attacker.

“Why,” you may say, “are you not willing to take that final step.”  (The Democrats, at least some of them, would go on to say, “Someone has to pay for Christine Blasey Ford’s life-long pain, fear, and trauma.”)  (I will address myself to each of the minority members at the end of this post.)

Here it is.  

I also watched Judge Kavanaugh yesterday.  His anguish, too,  was real.  It was genuine.  It was the outrage of an innocent man being tortured because an innocent woman honestly, but incorrectly, accusing him over the dry, dusty, barren plains of thirty-six years, was being callously used to further the crass, uncaring, duplicitous, and morally repugnant  political aims of a Party that wants only victory over a President  they hate for depriving their anointed queen of the Presidency, the innocent be damned.

I watched his wife behind him, her pain for her beloved, for her family clear on her face.  I have seen the faces of “dutiful wives” of politicians who have been caught out: most recently, Huma Abidin, whose husband was, indeed, a sexual predator.  She stood beside him, but the only pain I saw in her eyes was when she looked directly into the camera.  Her pain, for herself and her child.  When she infrequently looked at her husband, the doubt, the uncertainty, the contempt, they were all there.

That was not the case with Mrs Kavanaugh.  Her concern for her husband was genuine.  She believes him.

In my career, I have defended only two or three men whom I believed to be innocent—believed it to the core of my being.  Those for whom the government could not sustain its burden of proof I defended zealously, as required by the Cannons.  The American system of law is geared to protect citizens from the power and majesty of government rained down upon an accused by requiring that it--as accuser-- prove a person guilty beyond reasonable doubt. 

Due process, the presumption of innocence, rules of evidence and procedure, statutes of limitations; privileges that protect the system and the accused: privileges to be free from compelled testimony against oneself, the attorney-client, priest-penitent, and spousal privileges, these are, as my criminal law professor, Sheldon Singer, once cried out to a classmate, “Technicalities? TECHNICALITIES?  Shame! Shame!  No sir, they are the bare bones, the guts, the heart of the Constitution!”  

So it is that some people walk out of the courtroom free on “technicalities,” because the other option, sending the innocent into the dark abyss of the punitive arm of the state is, or ought to be, unbearable to any person with a conscience.

But the innocent ones, the ones who were faced with being falsely deprived of their liberty, of their good names, of their ability to serve the Nation they love—for them, I was truly frightened that I might not be good enough, that I might fail my client and our National love of justice.

There used to be a maxim, still recited even when I was a fresh caught attorney: “Better that a guilty man escape than an hundred innocent ones be convicted.”  I hope that is still true. “The United States wins its point whenever justice is done its citizens in the courts.” This quotation from Frederick Lehmann, Solicitor General of the United States (1910-1912), is inscribed on the wall of the Attorney General’s rotunda in the Department of Justice building in Washington, DC.  May it ever be thus.

I once heard someone on NPR discussing memory, in the context of truth and lies.  The commentator, a psychologist as I recall, said that we humans have, to some degree or another, an instinct to tell stories.  He (or she) commented on the oral histories, passed down from generation to generation, in preliterate societies. In order to do so, to keep the story alive, the commentator said, our brain is wired to make the story memorable.

My wife and I lost quadruplets at 20 weeks into her first pregnancy.  I was with her, standing at her left shoulder in the delivery room, holding her hand when she would let me, as the doctors worked feverishly, but unsuccessfully, to stop her labor and save at least some of our sons.  

She was understandably hysterical, incoherent.  It was the greatest tragedy of her life and mine.  In some ways, neither of us has fully recovered from our loss.

I always knew that deep in her mind, heart, and soul, she blamed me for the loss.  But I was stunned when one day we were talking about the boys, she turned on me, shouting, “You don’t care.  You weren’t even there.  You were left me to talk to one of your law partners on the phone.” 

It was the vitriolic delivery that shocked and frightened me.  Why would she lie about something like that.  I was angry, hurt, and confused……..until I heard the NPR report.

You see, earlier in the day, I had called one of my partners to tell him that I could not meet with him as he had asked me to.  It was a Saturday, and I wanted to make sure he knew I would not be there. 

But when she went into labor a couple of hours later, I was with her for every agonizing minute.

Understanding the depth of her personal tragedy and loss, I understood that my absence at the time of her loss and confusion made it a better story, a more complete and interesting story of loss.  

But she was not lying.  Her despair, her sense that God had abandoned her, that she was alone at the worst moment in her life, needed for her to be abandoned, alone.  It made her story all the more tragic and complete.  The human mind can be our best friend and worst enemy.

And in my own right, I have learned about the effect of trauma and stress on memory.

On the night of 10-11 June 1969, as I neared my sixth month in the field as a rifle platoon commander, my company was attacked by an estimated 600 NVA soldiers.  We who were there still refer to it simply as “that night.”  In the previous two to four weeks, I had had three of my Marines killed in action, as was my friend, Lieutenant Chip Hartman, who had joined the company with me on Christmas eve, 1968.  

We had at least ten NVA soldiers inside our lines in an old trench.  Another of my Marines, PFC Jimmy Wandro, USMC, was killed in action that night as he single-handedly attempted to clear the trench.  It was, as a Civil War veteran said of the Battle of Sharpsburg (Antietam), “simply awful.”

At dawn, as we moved to assault the trench, my radio operator was shot and seriously wounded.  When I found him, my Corpsman was already treating him.  I looked at him and could not recognize him.  “Who is it, Doc?” 

The young Marine looked at me and whispered, “It’s me, Lieutenant.  Don’t you know me?” I never saw him again--he was medically evacuated within minutes.

That terrible conversation haunted me for 40 years.  You see, PFC John Gibson had been my radio operator for four months.  A radio operator shared a fighting hole with and was rarely more than 10 feet from his unit leader.  What kind of Marine, what kind of officer, what kind of man was I that I could be so weak, so shallow, so frightened as to not recognize Johnny Gibson in his time of need?

For 40 years, if you had asked me, in the words Senator Schumer asked Dr Ford yesterday, “How sure are you that it was PFC Gibson?”, I would have answered confidently and surely, “One hundred percent.”

It was only after 10 weeks as an in-patient in the premier combat-related PTSD program in America that I was able to recall what really happened.  My radio operator was, indeed, wounded. But PFC Gibson had been sent to the rear the day before because of an emergency at home.  One of the squad radio operators had fleeted up to be with me.  It. Was. Not. Gibson! But I expected to see Gibson.  I was looking for Gibson.  I locked Gibson"s face into my memory.  My 100 % certainty let me down.

And that is why I think both Dr Ford and Judge Cavanaugh are telling the truth.  For whatever reason, when she was attacked, she did not recognize her attacker and for whatever reason—or for no reason whatsoever—she put Brett Kavanaugh’s face into her memory.  She is not lying.  She is not part of some nefarious plot.  She is a traumatized victim of a reprehensible crime and is trying to make some sense out of her “100 %” certainty. And she is wrong about who attacked her.

Likewise, Judge Kavanaugh is trying to fathom how a woman he does not remember (I sure as hell do not remember any sophomore girls from my senior year, and I, too, was a studious, book-wormish kid who did not know many girls in any way other than as friends, classmates, participants in school plays).  

He is righteously outraged by these allegations, as he has every right to be. He didn't do it, no matter how much some people with political agendae want it to be him!

The guilty parties in this farce are the Democrat Senators who have failed in their sworn duty to “support and defend the Constitution of the United States.”  Including the parts they dislike right now, the parts guaranteeing due process, a presumption of innocence, and the part that says no one accused of a crime—and what happened to Dr Ford was a heinous crime—can be compelled to incriminate himself, especially since there is no crime for him to admit.

Let’s look at the cast of characters who are guilty.

Senator Feinstein and Congresswoman  Eshoo. 

They started this whole debacle.  Congresswoman Eshoo apparently promised Dr Ford anonymity if she brought her claims forward to Senator Feinstein, something she could neither legally nor practically do. 

I’ll give her the benefit of the doubt to a certain degree:  she is not an attorney and, in fact, has only an AA degree.  But she has been a Party stalwart for 40 years, a member of Congress since 1992.  She should know better or know enough to ask one of her staff to check with one of the countless lawyers with which the Capitol teems on both sides of the aisle.

And she is a disciple of Congresswoman Pelosi who in 2014 urged that the Democrat Caucus elevate Congresswoman Eshoo to be Ranking Member on the House Energy and Commerce Committee.  Why?  Because, Mrs Pelosi said, her election “…would be important for the party, allowing her to tap into lucrative fundraising interests in Silicon Valley and elsewhere that the committee has jurisdiction over (sic)… .”  LA Times, 19 Nov 2014. 

Even today, she is an at-large Whip for the Democrat caucus in the House and being the "originating source" for information that could be useful to the Party and would delight Mrs Pelosi, it would be in her own personal interest to bring in this trophy.

Senator Feinstein—also not an attorney—continued the charade that Dr Ford could maintain her anonymity, which she must have known is impossible in the Capitol.  When, as Ranking Member on the Senate Judiciary Committee, she came into possession of Dr Ford’s letter, one could argue that she had a fiduciary duty to all of the members of the Committee to alert them in order to allow timely investigation of the claims against Judge Kavanaugh.  She did not.

As we now know, she instead hid the letter from the Committee and the Senate, allowing the Committee to conduct its hearings on the nomination.  It was only on 16 September that, after the hearings were complete, and partisan parliamentary efforts were unable delay action on the nomination, the letter and Dr Ford’s name, which according to Dr Ford had been given only to Congresswoman Eshoo and Senator Feinstein, were mysteriously leaked to the Washington Post.  In her testimony before the Committee yesterday, Dr Ford reiterated that she had given her letter only to Ms Eshoo and Ms Feinstein.

While the Democrats now want an FBI investigation, Senator Feinstein actively and consciously deprived them, and the American people, an opportunity for a timely practical investigation.  

But there is more.  In an interview with Fox News on 18 September aand in a report on MSNBC the next day, Senator Feinstein admitted that Dr Ford “is a woman that has been, I think, profoundly impacted, on this. I can’t say that everything is truthful. I don’t know.”   By withholding the letter, she, in fact, made it certain that Dr Ford’s anonymity could be prolonged but also protected her story from inquiry.  

The Senator's demands for an FBI investigation at this late date just doesn’t wash!  Senator Feinstein still asserts that the only reason that she did not release the letter to the FBI when she first received it was because she had promised Dr Ford anonymity, something she had no authority to do.  Applying Occam’s Razor, it is just as logical to think that Senator Feinstein did not want an FBI investigation out of concern that her prize weapon might be discredited.  Be that as it may, she allowed the debacle to begin and to continue to its tragic conclusion.

The 2020 Presidential Candidates and others.

To date, Senators Booker, Harris, and Hirono, all junior members of the Senate and members of the Judiciary Committee, have either expressed interest in or have been identified by members of the Democrat Party as potential Democrat candidates for the Presidency in 2020.  It is primarily they who have turned the hearings into a circus, with more stunts than Ringling Brothers, Barnum & Bailey ever had.  Leaking documents in violation of Committee and Senate Rules, staging walkouts (and moving immediately to waiting TV reporters and cameras), and assorted other hi-jinks have been their stock-in-trade.  Their campaign video clips are preserved.

Senators Leahy and Durbin—senior members of their Party on the Committee and in the Senate—have aided, abetted, and often joined their junior members in the burlesque show, along with Senators Whitehouse and Blumenthal.

Blumenthal is a particularly odious and odiferous character.  For years in Connecticut politics, he held himself out and ran as a “Marine Vietnam veteran.”  In fact, he was a Marine Reservist who never came near combat, unless he walked the streets of Hartford at night.  When caught out, his only excuse was that he meant to say that he was a “Vietnam-era veteran,” which is light-years away from the Ashau Valley, Khe Sanh, Hue City, Dodge City, the Arizona Territory, and Antenna Valley. He, a liar and thief who stole the valor of others, can be dismissed for what he is, a stinking mess of human flotsam.  But I digress.

The Honorable Professionals

The only two Democrats on the Committee who generally comported themselves with honor are Senators Klobuchar and Coons. We, as citizens all, should thank them for doing their duty as they see fit, but doing it honorably and professionally.

That’s my take.  Let the responses begin