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News Roundup

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In the culmination of a nomination process that divided the nation, Brett Kavanaugh was sworn in as a Supreme Court Justice on Saturday night. As USA Today reports, the final Senate vote was 50-48, with Joe Manchin the lone Democrat voting in favor of Kavanaugh’s appointment and Lisa Murkowski the lone Republican voting against. Kavanaugh was sworn in shortly after the vote by Chief Justice John Roberts and retiring Justice Anthony Kennedy in a private ceremony. Kavanaugh once served as a law clerk for Justice Kennedy, as did Justice Neil Gorsuch. In another overlap, Gorsuch and Kavanaugh each attended high school at Georgetown Preparatory School.

FBI Investigation. As the nation well knows, Dr. Christine Blasey Ford’s allegation that Justice Kavanaugh drunkenly attempted to rape her at a high school party was the focus of a Senate Judiciary Comittee hearing and, ultimately, an FBI investigation initiated at the behest of Senator Jeff Flake. The results of that investigation have largely remained secret, with only one copy of the full report being prepared and that copy made available only to senators. Judiciary Committee Chairman Chuck Grassley said that the investigation did not uncover evidence that corroborated Dr. Ford’s allegation that Kavanaugh, with the assistance of a friend, isolated and attacked her in a bedroom of mutual friend’s home. Grassley released an executive summary of the report to the public.

High Court Partisanship. It has been widely suggested that the battle over Kavanaugh’s nomination marks an unprecedented shift towards partisanship on the U.S. Supreme Court. Senator Susan Collins, who cast a crucial vote to confirm Kavanagh, remarked from the floor of the Senate that she hoped Kavanaugh would “work to lessen the divisions in the Supreme Court.” At a ceremonial swearing in on Monday, President Donald Trump apologized to Kavanaugh “on behalf of [the] nation” for his nomination ordeal. For his part, Kavanaugh, at the Judiciary Committee hearing, characterized Ford’s allegation as a “calculated and orchestrated political hit” meant as “revenge on behalf of the Clintons,” but later said at the ceremonial swearing in that he took the bench with “no bitterness” and expressed his view that the Court is not a partisan institution.

Standards of Proof. Though sometimes obscured in the national discussion of Ford’s allegation against Kavanaugh, the Judiciary Committee hearing was just that — a senate committee hearing and not a formal judicial proceeding. Free from the procedural confines of a true judicial proceeding, people announced various views of the evidence presented, the process due, and the applicable standard of proof. Senator Mitch McConnell borrowed from principles of criminal law, declaring that “[n]obody is supposed to be guilty until proven innocent in this country.” Senator Susan Collins said that Ford’s allegation did not meet a “more likely than not” standard and voted to confirm on that basis. President Donald Trump said that Kavanaugh had been “proven innocent.”

Rape Kit Funds. While the Kavanaugh nomination and confirmation was a dominant story this week, there was plenty of other news involving criminal law. North Carolina Attorney General Josh Stein announced that the state has received a $2 million federal grant to be used to reduce the rape kit backlog plaguing the State Crime Lab. The grant will facilitate the testing of about 1,400 kits; the total backlog in North Carolina is over 15,000 kits.

Officer Convicted. As the Chicago Tribune reports, former Chicago Police Officer Jason Van Dyke recently was convicted of second-degree murder for fatally shooting Laquan McDonald. Van Dyke and other officers encountered McDonald carrying a knife and Van Dyke testified that he thought it was necessary to shoot McDonald because of his threatening behavior.  Dash cam video contradicted Van Dyke’s account of the events.

Cough Medicine Plea. As WRAL reports, Matthew James Phelps pleaded guilty last week to first-degree murder in the 2017 stabbing death of his wife, Lauren Hugelmaier Phelps. The case attracted national attention because Matthew Phelps told a 911 dispatcher that taking large doses of cough medicine may have caused him to kill his wife.

CLE Opportunity. As we’ve mentioned previously, the School of Government is offering a new CLE program that we think will interest blog readers. On November 16, 6.25 hours of CLE is on offer at the Back to School CLE @ SOG. We hope to see you there.

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4 comments on “News Roundup

  1. The Senate confirmation hearing was neither a court proceeding or a job interview anymore than the Priest, Preacher or Magistrate asking; “if anyone can show just cause why this couple cannot lawfully be joined together in matrimony, let them speak now or forever hold their peace” is.

    It is an “advise and consent” procedure just like the matrimonial process is. Nothing more. You’re not choosing the marriage partners, they chose each other already. All you get to do is to bring up any LEGITIMATE warning for either of the parties not to be united and there never was any guarantee that your warnings would be heeded in the first place.

    Think of it as a ‘marriage’ between President Donald J. Trump and Justice Brett Kavanaugh doing nothing more than seeking the “Blessing” of the Senate. That’s all it was and that’s all it will ever be.

    Do you get it now?

    • Tell that to Merrick Garland.

  2. Nonsense.

    If there were not some oversight function to the Senate confirmation hearing there wouldn’t be a vote at the end. Nobody polls the church at a wedding to see how many in attendance approve or disapprove of the marriage. Probative questions are not expected from the wedding guests for the bride and groom as they stand on the altar waiting to exchange rings.

    Confirmation hearings are not a “criminal investigation” in the spirit that Sen. McConnell evokes in his comment about “[n]obody is supposed to be guilty until proven innocent in this country.”

    It IS more akin to a job interview where the Senators ask questions of the nominee in order to gauge their suitability for the high court. Part of that evaluations should be about the nominee’s past decisions as a judge. If applicable, part of that evaluation should be about the candidate’s personal history. Part of that evaluation should also be how the nominee handles certain tough questions. On all three counts, Kavanaugh failed miserably.

    These are lifetime appointments. The Senate is not some rubber stamp to approve whoever the President wants to elevate to the High Court. They’re the last line of defense against seating a bad judge on the most important court in the land.

    • Failed? What color is the sky in your world sir? Because in my world Brett Kavanaugh is now properly addressed as JUSTICE Brett Kavanaugh indicating that he did in FACT not fail, but was entirely successful. If it is as YOU say sir that the Senate Judiciary Committee is so important then you sir have no choice but to accept that on all three counts, Kavanaugh succeeded astonishingly well. You don’t get to have it both ways.

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