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I don\u2019t know for certain what happened \u2014 or what didn\u2019t happen \u2014 nearly four decades back between teenage Brett Kavanaugh and teenage Christine Blasey Ford. \u00a0Exactly what happened may be unknowable. \u00a0Perhaps Dr. Ford really knows, although it\u2019s possible that even she was too inebriated at that alleged party thirty-six years ago to be genuinely sure. \u00a0It\u2019s likely that Judge Kavanaugh really knows \u2014 although, if he was even present at all<\/em>, he too may have only foggy memories of a drunken party that occurred back toward the beginning of Ronald Reagan\u2019s first presidential term.<\/p>\n \u00a0<\/p>\n Johnny Carson hosted the Academy Awards that year. \u00a0Chariots of Fire<\/em> won best picture. \u00a0Olivia Newton-John\u2019s \u201cPhysical\u201d topped Billboard\u2019s year-end charts.<\/p>\n \u00a0<\/p>\n It\u2019s been a while.<\/p>\n \u00a0<\/p>\n But some things can still be said.<\/p>\n \u00a0<\/p>\n Many women and more than a few men have spoken up in support of the allegation that has been leveled against Judge Kavanaugh. \u00a0I wonder how they can do so. \u00a0No new evidence has been presented, so far as I\u2019m aware. \u00a0How can they possibly know?<\/p>\n \u00a0<\/p>\n Some claim to speak with authority because they themselves have been victims of sexual assault. \u00a0But, while I\u2019m sympathetic to them, I don\u2019t see the logic of their declarations. \u00a0If my house was burglarized \u2014 as, in fact, mine was<\/em>, a number of years ago \u2014 does that confer some mysterious ability\u00a0upon me to determine, without trial or even seeing any evidence, whether any particular person is a burglar?<\/p>\n \u00a0<\/p>\n Some have said that drunken parties and aggressive male sexual behavior were common at the school that Brett Kavanaugh attended. \u00a0And that may be true. \u00a0(It was arguably true at mine, too.) \u00a0But that goes precisely no distance toward establishing that Brett Kavanaugh, specifically,was guilty of drunken sexual assault. \u00a0(I never took drugs, never drank a drop of alcohol \u2014 and, I\u2019d better say this explicitly in an attempt to forestall my less scrupulous critics from suggesting that I\u2019ve admitted otherwise \u2014 never assaulted anyone, sexually or in any other way while in high school. \u00a0(And, for that matter, neither before or since then.) \u00a0Isn\u2019t judging individuals on the basis of group stereotypes \u2014 whether we\u2019re talking about women, blacks, Jews, or, yes, high school student bodies \u2014 one of the intellectual and moral sins that our time is supposed to guard most vigilantly against?<\/p>\n \u00a0<\/p>\n Some have complained that the majority of the Senate, and of the Senate Judiciary Committee, is made up of old white men, who should presumably play little or no role in assessing the merits of a complaint leveled by a woman against a man. \u00a0Senator Mazie Hirono (D-HI), for example, disgraced herself\u00a0by saying \u201cto the men of this country: Just shut up and step up. Do the right thing for a change.\u201d \u00a0She continued by declaring that\u00a0\u201cNot only do women like Dr. Ford, who bravely comes forward, need to be heard, but they need to be believed. They need to be believed.\u201d \u00a0I say that Senator Hirono disgraced herself, but her attack on males and on the rules of justice that have governed our nation since its inception drew rapturous applause from a disheartening number of her fellow extremist ideologues. \u00a0Do we really want to make this a war of men against women and women against men and a death struggle between generations? \u00a0Isn\u2019t this is a question of facts, inferences, and probabilities, rather than gender solidarity? \u00a0Shouldn\u2019t it be?<\/p>\n \u00a0<\/p>\n By the same token, the fact that I\u2019ve been baselessly and maliciously smeared online pretty much daily for at least a decade \u2014 my character maligned, flat untruths anonymously invented and posted about me \u2014 invests me with absolutely no special ability for discerning that, in Brett Kavanaugh\u2019s case, the allegation against him is nothing but a malevolent lie.<\/p>\n \u00a0<\/p>\n As I say, I do not know, and likely cannot ever know, what may have happened or may not have happened, when Christine Blasey and Brett Kavanaugh were adolescents. \u00a0All that we can do is to go by the preponderance of the (very sparse) evidence, exercising reasonable doubt, and \u2014 this is crucial, even though we\u2019re talking about a Senate vote rather than a criminal trial \u2014 with the presumption of innocence.<\/p>\n \u00a0<\/p>\n Do I think that Dr. Ford is lying? \u00a0No, I don\u2019t. \u00a0It\u2019s possible, of course, but she\u2019s probably not. \u00a0I expect that she\u2019s sincere. \u00a0Does that mean that what she alleges against Judge Kavanaugh is true? \u00a0No. \u00a0Not necessarily. \u00a0There are a number of ways in which she could be sincere but wrong.<\/p>\n \u00a0<\/p>\n On balance, I\u2019m inclined to stand with Andrea Bottner: \u00a0\u201cI Stand with Brett Kavanaugh\u201d<\/a><\/p>\n \u00a0<\/p>\n But, unless Christine Blasey Ford were to come forward and announce that she had frankly made it all up out of whole cloth, Brett Kavanaugh will be tainted for the rest of his life. \u00a0There will always be doubt. \u00a0Some will be certain that he\u2019s guilty. \u00a0Some will be certain that he\u2019s innocent. \u00a0Most will be somewhere on the spectrum where I am.<\/p>\n \u00a0<\/p>\n This is becoming unspeakably ugly:<\/p>\n \u00a0<\/p>\n \u201cYes, Rejecting Kavanaugh Now Would Disgrace Him\u201d<\/a><\/p>\n \u00a0<\/p>\n In many ways, it\u2019s now worse than the Robert Bork hearings and the Clarence Thomas hearings. \u00a0It\u2019s total war:<\/p>\n \u00a0<\/p>\n \u201cDemocrats float more Kavanaugh investigations, impeachment even if he is confirmed\u201d<\/a><\/p>\n \u00a0<\/p>\n I do want to say, though, that, although I don\u2019t really know how to decide with absolute certainty and confidence between Judge Kavanaugh and Dr. Ford, I think it beyond reasonable question that Senator Diane Feinstein behaved very poorly in all of this:<\/p>\n \u00a0<\/p>\n \u201cCensure Dianne Feinstein\u201d<\/a><\/p>\n \u00a0<\/p>\n And this, too: \u00a0Dr. Ford\u2019s demand that she be allowed to testify against Judge Kavanaugh after he has given his testimony, and, practically speaking, that he should be allowed no opportunity to respond under oath nor even to be in the room with (and, thus, to face) his accuser, is outrageous and should be rejected.<\/p>\n \u00a0<\/p>\n \u201cThe Demands the \u201cFord Team\u201d Has Made Are Ludicrous\u201d<\/a><\/p>\n \u00a0<\/p>\n The so-called \u201cConfrontation Clause\u201d of the Sixth Amendment to the Constitution of the United States declares that,\u00a0\u201cin all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the\u00a0witnesses\u00a0against him.\u201d \u00a0This is generally taken to mean that the accused person has\u00a0the right to confront the witnesses who are offering testimonial evidence against the him or her face to face. \u00a0Often, this takes form of cross-examination during a trial.<\/p>\n \u00a0<\/p>\n Moreover, the Fourteenth Amendment to the Constitution\u00a0makes that right to confront one\u2019s accuser incumbent upon the states, as well as the federal government.\u00a0<\/sup><\/p>\n \u00a0<\/p>\n The Confrontation Clause grows out of both\u00a0English\u00a0common law\u00a0and\u00a0Roman law, which guaranteed persons accused of a crime the right to look their accusers in the eye and, where appropriate, to cross examine them.<\/p>\n \u00a0<\/p>\n \u201cIt is not the manner of the Romans,\u201d explains the Roman governor of Judea, Porcius Festus, at Acts 25:16, \u201cto deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him.\u201d<\/p>\n \u00a0<\/p>\n In Shakespeare\u2019s Richard II<\/em> I.i, the king summons Henry Bolingbroke (the future King Henry IV) and Thomas Mowbray, whom Henry has accused of treason, to appear before him, where<\/p>\n \u00a0<\/p>\n <\/a>face to face,<\/span> \u00a0<\/p>\n Now, granted, the constitutional right to confront one\u2019s accuser applies strictly, in the United States, only to formal criminal prosecutions. \u00a0But elementary justice and fairness and basic morality strongly urge that such a right should be granted as widely as possible, including hearings related to an appointment to the Supreme Court of the United States.<\/p>\n \u00a0<\/p>\n As Andrew McCarthy rightly observes, this has become a kangeroo court<\/a>.<\/p>\n \u00a0<\/p>\n But it\u2019s not really very funny:<\/p>\n \u00a0<\/p>\n
\n <\/a>And frowning brow to brow, ourselves will hear<\/span>
\n <\/a>The accuser and the accused freely speak.<\/span><\/p>\n