Dem Sen. Mazie Hirono: Kavanaugh's probably guilty of attempted rape because he's a judicial conservative

“This is the kind of answer,” writes Tom Nichols, “that makes people think voting Republican is more a matter of self-defense than ideology.” She’s been saying incendiary things all week, though, which is amazing when you consider that Hirono’s one of the five or six Democrats in America who (probably) isn’t running for president. She’s out-demagogued Gillibrand, Booker, Harris and the rest of the 2020 clown car over the last few days, but not because she stands to gain from it in a primary like they do. To all appearances, this is simply who she is.

Josiah Neeley summarizes: “They don’t oppose [Kavanaugh] because they find the accusation credible. They find it credible because they oppose him.” Precisely. In its own twisted way, Hirono’s take is the most honest offered by any Democrat on this matter. (She’s specialized lately in saying the quiet part out loud, notes Phil Kerpen.) They’re going to try to stop this confirmation by any means available, not because they find what Ford’s alleging to be infallibly believable but because they don’t want the Court to shift any further to the right. If that means branding “presumptive rapist” on Kavanaugh’s forehead for the rest of his life then that’s what it means.

If you need further evidence of that, watch this clip of Jake Tapper asking Hirono about the allegations of abuse pending against Keith Ellison. Those should be investigated, Hirono blandly allows — before switching immediately back to Kavanaugh. Justice for Christine? An urgent moral matter. Justice for Karen Monahan? Sure, whatever. This is what Nichols is getting at in his point about self-defense: There’s no reason to think any Republican, in any situation, would be treated better by the likes of Hirono. When you’re “evil” because of your ideology then you’re capable of anything, by efinition. When you’re virtuous because of your ideology, as Ellison supposedly is, then we follow traditional rules about evidence and due process. Why wouldn’t any right-winger be presumed guilty of attempted rape?

Here’s one way to think about the momentous question of what standard of proof the Senate should follow in weighing the accusation against Kavanaugh. Everyone can agree that there’s no need to reach the level of “beyond a reasonable doubt”; we’re not in court and Kavanaugh’s at no risk of losing his freedom. But is there any standard of proof in American law, civil or criminal, that would be satisfied by the evidence in front of us? Ford can’t provide a particular date or place that the attack allegedly happened. She told WaPo that she “believes it occurred in the summer of 1982,” leaving open the possibility that she has the season or even the year(!) wrong. All three people she’s named as being at the party — Mark Judge, Patrick Smyth, and now Leland Ingham Keyser — remember nothing about any attempted rape. Keyser doesn’t even know Kavanaugh, raising the possibility that they were never at any party together. Judge, who’s accused of witnessing the attack with his own eyes, says he never saw Kavanaugh behave that way. You couldn’t get to probable cause with those facts, never mind beyond a reasonable doubt.

I can’t see how you could get to a preponderance of the evidence, the standard of proof in civil trials, either. All Ford would need to do in a civil claim to recover damages from Kavanaugh is show, based on the totality of the evidence, that it’s more likely than not that he attempted to rape her. 51/49. Do any legal eagles want to make the case that a bare accusation, unsupported by her own friend Keyser and denied by the third person in the room at the time, would get a civil jury to find Kavanaugh liable based on that standard?

The reason we’re seeing hair-raising calls for Kavanaugh rather than Ford to bear the burden of proof at the hearing, I think, is because people have either concluded or intuited that there’s no standard of proof that her evidence (so far) could possibly meet to produce the result desired by liberals like Hirono. The only way to arrive at the belief that Kavanaugh is probably guilty is to start there. And the only way to do that is to dispense with questions about the standard of proof altogether and turn due process on its head by forcing the burden of proof onto him instead. It’s worse than that, actually: Because Ford hasn’t provided a date or place of the attack, Kavanaugh has no way of providing an alibi. Democrats want to declare him guilty until proven innocent and then, for all intents and purposes, leave him with no way of proving that innocence. It’s Star Chamber justice. And remember, this is a type of adjudication at this point insofar as the Senate will be asked to decide whether or not it thinks Kavanaugh did what Ford is accusing him of. This was a “job interview” until the moment that he was accused of being a sex criminal. Since everyone (well, mostly everyone) agrees that he’s unfit to sit on the Court if there’s reason to believe he’s guilty of attempted rape, the Senate’s vote will be taken as a verdict on his guilt. The people dismissing this as a “job interview” are simply trying to put senators at ease in issuing a finding of culpability that no other arm of American justice would support.

Don’t get too comfortable about Kavanaugh’s prospects, though, just because Keyser said she doesn’t remember any high-school party attended by him. Trump’s old friend Michael Avenatti is teasing something:

If you think he’s bluffing, why would he be bluffing? It’s true that Avenatti has been claiming for months that other women have spoken to him about their dealings with Trump and we have yet to hear from any of those woman, but that might be strategy. He can afford to play a long game in his war on POTUS; in fact, it’s to his political advantage to hold back anything he might have on Trump until we get closer to 2020, knowing how that would impress Democratic primary voters. With Kavanaugh, though, the timing requires him to play a short game. If he knows of a second accuser, or of a witness who can corroborate Ford’s account, that person would come forward in the next few days before the hearing. If Avenatti’s teasing it, either he has reason to believe that’ll happen or he’s inexplicably willing to damage his own credibility among the voters he’s wooing by promising something he can’t deliver on. What does he have?