Senator Grassley’s Letter to Committee Democrats

For reference.

If the Democrats only cared about assaults on women when they could be used to attack Republicans, and otherwise couldn’t be bothered, I’m not sure how their behavior would be any different.

Text of letter:

Dear Colleagues:
I received your letter dated September 18, 2018, asking me not to reopen the hearing on Judge Kavanaugh’s nomination, scheduled for Monday, September 24. Dr. Christine Blasey Ford has made serious allegations against Judge Kavanaugh. She has said repeatedly that she wants to tell her story. And she has a right to be heard. Holding a hearing is in the best interests of justice and for the parties involved. This will allow Dr. Ford to make her allegations under oath, as her attorney has publicly requested. At the same time, reopening the hearing will allow Judge Kavanaugh, who has categorically denied Dr. Ford’s allegations, to address these allegations without further delay.

I understand how difficult it might be for Dr. Ford to publicly testify on this subject. I have therefore offered her many options. We’ve offered her a public hearing, a private hearing, a public staff interview, or a private staff interview. The staff is even willing to fly to California, or anywhere else, to meet her.

An open session would be a matter of public record, while a closed session will remain confidential. I certainly can understand that Dr. Ford might be distrustful of the Committee’s ability to keep matters confidential based on the Democratic members’ recent conduct, but I sincerely hope that, if she chooses to testify in a closed session, that my colleagues can see their way to plugging the leaks which have plagued this nomination and gain her trust.

Your letter requests that I demand that the FBI conduct an additional investigation into this matter. This request demonstrates a fundamental misunderstanding of the FBI background investigation process. Before nominating an individual to a judicial or executive office, the White House directs the FBI to conduct a background investigation. The FBI compiles information about a prospective nominee and sends it to the White House. The White House then provides FBI background investigation files to the Senate as a courtesy to help us determine whether to confirm a nominee. But the FBI does not make a credibility assessment of any information it receives with respect to a nominee. Nor is it tasked with investigating those matters that this Committee deems important. The Constitution assigns the Senate, and only the Senate, with the task of advising the President on his nominees and consenting if the circumstances merit. We have no power to commandeer an Executive Branch agency into conducting .ill!! due diligence. The job of assessing and investigating a nominee’s qualifications in order to decide whether to consent to the nomination is ours, and ours alone.

Second, your request ignores the fact that Dr. Ford has already made her allegations public. The purpose of the background investigation process is to compile information in a confidential manner. Confidentiality permits people to speak freely and candidly about the character and qualifications of the nominee. The White House requires the Senate to keep background investigation files private so that people can speak anonymously to investigators if they so desire. Because Dr. Ford’s allegations are in the public arena, there is no longer a need for a confidential FBI investigation.

In 1991, the FBI’ s additional investigation into Professor Anita Hill’s allegations occurred when the allegations were still non-public. When the Senate received Professor Hill’s non-public allegations of sexual harassment, then-Chairman Biden expeditiously notified the White House. (That decision sits in sharp contrast to Senator Feinstein’s decision to sit on Dr. Ford’s allegations for more than six weeks.) The White House directed the FBI to conduct a handful of interviews regarding Professor Hill’s allegations. The FBI completed the interviews within a few days. The White House turned the interview reports over to the Senate as a courtesy. The contents of one of those reports was leaked to the public soon after. The hearing was subsequently reopened five days after the allegations were made public.

We are in the same position the Committee was in after Professor Hill’s allegations were leaked. After that leak, we did not ask the FBI to conduct an investigation. Instead, we reopened the hearing and assessed the testimony that was given on our own. As in 1991, it is now up to the Senate to gather and assess the relevant evidence.

The Majority staff spoke with Judge Kavanaugh as part of the background investigation. Judge Kavanaugh immediately agreed to cooperate with Senate investigators. He sat for a transcribed interview on Monday. He understood that he was under penalty of felony, ifhe was not truthful. He fully, candidly, and unequivocally answered all questions. We have no reason to doubt the truthfulness of Judge Kavanaugh’s testimony. Judge Kavanaugh volunteered to come back for a public hearing.

As is standard practice, we invited the Minority staff to participate and ask Judge Kavanaugh its own questions, but the Minority staff declined. The Majority staff has also sought to set up interviews with Dr. Ford, Mark Judge, and two other alleged witnesses. The Minority staff is welcome to participate in the investigative process as well, but it has thus far declined.

I have scheduled the hearing continuation for this Monday because Dr. Ford, through her counsel, expressed the desire to tell her story under oath. It is my understanding that Dr. Ford has been represented by counsel in this matter for months and thus should be adequately prepared to testify. I am following the same timeline Chairman Biden did after Professor Hill’s allegations were made public. It would be a disservice to Dr. Ford, Judge Kavanaugh, this Committee, and the American people to delay this hearing any further.

Of course, we wouldn’t find ourselves in this position if we had been made aware of the allegations in a timelier manner. The Ran.king Member was aware of these allegations since July. But her staff did not ask Judge Kavanaugh about them during routine background investigation phone calls in late-August. Senator Feinstein did not ask Judge Kavanaugh about these allegations during her closed-door meeting on August 20. The Ranking Member withheld this serious information about Judge Kavanaugh from her colleagues, 64 of whom had private meetings with Judge Kavanaugh and could have asked him about the allegations directly. She did not ask about them when Judge Kavanaugh appeared before the Committee for more than 32 hours of testimony over 3 days. Nor did she attend the closed session of the hearing when members can ask Judge Kavanaugh about sensitive matters. And she did not ask any questions about these allegations among the nearly 1,300 written questions sent to Judge Kavanaugh after the hearing.

Senator Feinstein only informed the FBI of the allegations after they were leaked to the media on the eve of a confirmation vote. The proper course of action would have been to investigate Dr. Ford’s serious allegations as quickly and as thoroughly as possible, as I did as soon as these allegations were made known to me.

I’m also concerned what the recent events mean for whistleblowers, especially victims of sexual assault. Dr. Ford expressed the desire that her allegations remain non-public. I can’t emphasize how important it is to respect whistleblowers’ and victims’ desire for confidentiality. But notwithstanding her wishes for confidentiality, her allegations became public. I fear that the leaks of confidential information will discourage whistleblowers and victims from coming forward in the future.

This is but the latest-and most serious–of your side’s abuse of this confirmation process. There has been delay and obstruction of this process at every tum and with every argument available. Therefore, I will view any additional complaints about the process very skeptically.

 

Originalism

From National Review:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

[snip]

Title IX vs the Constitution

Some people just can’t resist putting the “Twit” in Twitter.

From Advice Goddess blog:

From Rewire (in that tweet above), Shiwali Patel reports this gem about the supposedly “fair process” under Title IX for sexual assault.

…There is no inherent conflict between ensuring a fair process for survivors and a fair process for alleged perpetrators. For the record, when we advocate that schools be trauma-informed in responding to sexual violence and that schools stop and prevent sexual harassment, we are not asking the school to take away due process rights. It’s possible to advocate for both a fair process for all students and the safety of survivors of sexual violence. Take cross-examinations, for example, where institutions could ensure a fair process by allowing parties to submit questions to each other through hearing panels or investigators, yet still protect the safety of survivors by not permitting direct questioning by the accused student.
To highlight a recent case, a federal court last month held that the University of Michigan had violated an accused student’s due process rights to a live hearing and an opportunity to question the woman who filed the complaint against him. In doing so, the court “consider[ed] the emotional harm and trauma” to survivors of being directly questioned by their rapists. It concluded that the accused student had a right to question the woman who filed the complaint, but could only do so by submitting his questions to the student resolution panel or other school administrators, who would then ask the questions on his behalf.

I’m no lawyer; I’m just somebody who follows a few lawyers on Twitter; and even I knew immediately that this was, shall we say, merde du cheval.

Several lawyers chimed in pointing this out.

My comment was:

I think Ms. Lhamon’s tweet should be construed as a waiver of the right to cross-examine should she ever be in a legal dispute.

Hate speech is free speech, Gov. Dean: Glenn Reynolds

Source: Hate speech is free speech, Gov. Dean: Glenn Reynolds

I tell my constitutional law students that there are a couple of statements that indicate that a speaker is a constitutional illiterate who can safely be ignored. One is the claim that the Constitution views black people as ⅗ the worth of white people (actually, it was all about power in Congress, with slaveowners wanting black people to count 100% toward apportionment so that slaveowners would get more seats in Congress, and abolitionists wanting them not counted at all so that slaveowners would get fewer seats in Congress; the ⅗ compromise was just that, a compromise).

The other hallmark of constitutional illiteracy is the claim that the First Amendment doesn’t protect “hate speech.” And by making that claim last week, Howard Dean, former governor of Vermont and Democratic presidential candidate, revealed himself to be a constitutional illiterate. Then, predictably, he doubled down on his ignorance.

In First Amendment law, the term “hate speech” is meaningless. All speech is equally protected whether it’s hateful or cheerful. It doesn’t matter if it’s racist, sexist or in poor taste, unless speech falls into a few very narrow categories — like “true threats,” which have to address a specific individual, or “incitement,” which must constitute an immediate and intentional encouragement to imminent lawless action — it’s protected.

The term “hate speech” was invented by people who don’t like that freedom, and who want to give the — completely false — impression that there’s a kind of speech that the First Amendment doesn’t protect because it’s hateful. What they mean by “hateful,” it seems, is really just that it’s speech they don’t agree with. Some even try to argue that since hearing disagreeable ideas is unpleasant, expressing those ideas is somehow an act of “violence.”

There are two problems with that argument. The first is that it’s idiotic: That’s never been the law, nor could it be if we give any value to free expression, because there’s no idea that somebody doesn’t disagree with. The second is that the argument is usually made by people who spend a lot of time expressing disagreeable ideas themselves, without, apparently, the least thought that if their own rules about disagreeable speech held sway, they’d probably be locked up first. (As Twitter wag IowaHawk has offered: “I’ll let you ban hate speech when you let me define it. Deal?”)

The response to Dean was merciless: First Amendment law expert Eugene Volokh responded, “No, Gov. Dean, there is no ‘hate speech’ exception to the First Amendment.” If there were, neither the Westboro Baptist Church — whose hateful speech the Supreme Court recently held protected — nor the many people referring to Trump supporters as Nazis and “deplorables” would enjoy free speech.

As Volokh writes, if people want “hate speech” to be unprotected, they’re calling for a change to the First Amendment, and it’s a big one. They should not only admit that, “they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two. And claiming that hate speech is already ‘not protected by the First Amendment,’ as if one is just restating settled law, does not suffice.”

Dean then doubled down with the constitutional illiterate’s usual fallback, that you could ban “hate speech” as “fighting words” under the 1942 case of Chaplinsky v. New Hampshire, which allows a ban on “fighting words.” (Journalist Dan Gillmor commented: “Disappointing, to say the least, to see Dean digging the hole deeper on his flatly incorrect original statement.”)

But “fighting words” aren’t hate speech. Fighting words are direct, person-to-person invitations to a brawl. Expressing political or social views that people don’t like isn’t the same thing, even if people might react violently to those views.

And that’s good. If, by reacting violently to views they didn’t like, people could get the government to censor those views as “hate speech” or “fighting words,” then people would have a strong incentive to react violently to views they don’t like. Giving the angry and violent the ability to shut down other people’s speech (the term we use for this in constitutional law, Gov. Dean, is “heckler’s veto”) is a bad thing, which would leave us with a society marked by a lot more violence, a lot more censorship, and a lot less speech.

Is that really what you want? Because that’s what we’d get, if we followed the advice of constitutional illiterates.