Brett Kavanaugh

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Eduk
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Re: Brett Kavanaugh

Post by Eduk » October 11th, 2018, 6:48 pm

All those qualities are always appropriate.
Unknown means unknown.

Steve3007
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Re: Brett Kavanaugh

Post by Steve3007 » October 12th, 2018, 1:58 am

Fooloso4 wrote:His defense was to become an accuser.
He also said it was being fueled by pent-up anger over President Donald Trump’s 2016 election victory and outside groups stoking fear about his judicial record and revenge on behalf of the Clintons.

None of these things speak to the issue of Ford’s allegations. Even a judge being accused should be able to make a distinction between an attempt to get at the truth of an allegation and deflection by launching accusations against parties not involved in the incident.
GE Morton wrote:Yes, indeed --- a point I made earlier. Impartiality, civility, composure, open-mindedness are all qualities essential for a judge when he's doing his job. Demanding them of a person accused of lurid crimes is absurd, especially when the accusation has obvious political motives and is unsupported by any corroborating evidence. Indignation and outrage are perfectly appropriate reactions to such an accusation.

No one (as far as I know) has accused Kavanaugh of any lack of temperament or impartiality while sitting as a judge. Hence the law profs' letter is misguided and irrelevant.
Fooloso4's answer to our point seems to me like quite a good one. I would think that a judge applying for a job at such a high level should be an expert at impartial analysis of the law. He should be such an expert that this ability should largely remain even when under pressure. It should be second-nature as a result of years of experience. He should be capable of applying that expertise to the case against himself, to at least some extent. His reply to allegations against himself should not be furious counter-allegations citing anger against the results of the presidential election. I think it's not unreasonable to assume that this behaviour when under pressure showed his true position as, essentially, Trump's man on the US Supreme Court.

I think Eduk has a point in saying that it shouldn't be so obvious what the political and religious leanings of judges are. We don't live in an ideal world, but the ideal towards which they should strive is impartial analysis of law and the constitution. If the constitution is as open to different judges' interpretations of it, based on their personal preferences, as it seems to be, then that seems to me to cast doubt on its usefulness.

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Re: Brett Kavanaugh

Post by Fooloso4 » October 12th, 2018, 9:20 am

Here is an interesting opinion piece from the New York Times:

A Lesson for Kavanaugh From Another Tarnished Supreme Court Justice

Hugo Black rose from his past in the Ku Klux Klan to become one of the great civil libertarians.

By Linda Greenhouse

It’s obvious why the parallel between the battle over Brett Kavanaugh’s Supreme Court nomination and that of Clarence Thomas 27 years earlier grabbed the public’s attention. In both cases, late-breaking allegations threatened but failed to derail the confirmation process, and both nominees defended themselves with impassioned denials of wrongdoing.

But history offers another, older parallel that in its way is even more compelling. The issue was not sex but racism. The bombshell burst not just before a confirmation vote, but just afterward, forcing a newly confirmed Supreme Court justice to take to the airwaves to defend himself against mounting calls for his resignation. I’m referring to the experience of Hugo L. Black, the first Supreme Court nominee of President Franklin D. Roosevelt. In the wake of the Kavanaugh confirmation, this nearly forgotten episode is worth resurrecting after 81 years.

Black was a Democratic senator from Alabama, a populist and ardent supporter of the New Deal who had backed the president’s failed plan to add additional justices to the Supreme Court who could outvote the conservatives who were invalidating major New Deal programs. The retirement of one of those conservatives, Willis Van Devanter, gave Roosevelt his first chance to make a dent in the Supreme Court.

Black’s nomination in the summer of 1937 was controversial, not only because it was a sharp stick in the eyes of the president’s many political enemies, but because of Black’s limited judicial experience — he was briefly a police court magistrate — and an education viewed as marginal for a Supreme Court justice. Although a graduate of the University of Alabama Law School, Black had never gone to college.

Shortly after the president announced the nomination, rumors circulated that as a young lawyer in Alabama, Black had been a member of the Ku Klux Klan. The N.A.A.C.P. asked for an investigation, but a Senate Judiciary subcommittee rammed the nomination through to the full committee after two hours of consideration. One Democratic senator, William Dieterich of Illinois, accused other senators of trying to “besmirch” Black’s reputation. As the historian William E. Leuchtenberg described the scene in a fascinating 1973 article, “Dieterich’s tirade nearly resulted in a fist fight” as another Democratic senator charged at him.

Supreme Court nominees did not ordinarily appear at their confirmation hearings in those days, but Black’s supporters said he had assured them that he had never joined the Klan. The full committee moved the nomination to the Senate floor. Black was confirmed by a vote of 63 to 16, and the new justice and his wife set sail for a European vacation.

In mid-September, while Black was in Paris and the court was getting ready to open a new term, The Pittsburgh Post-Gazette published the first of six articles conclusively linking him to the Klan. Soon, the country was in an uproar. The Klan stood for violence not only against African-Americans but also against Catholics, who were prominent among Roosevelt’s most loyal supporters. Catholic members of Congress demanded that Black step down. Senator David I. Walsh, a Democrat and a former governor of Massachusetts, charged that “Black obtained his nomination and confirmation by concealment and thereby deceived the president and his fellow senators, especially the latter.” A Gallup poll found that 59 percent of the public believed Black should resign if the charge was true.

On his return to the United States, Black gave a national radio address, as unusual then as Brett Kavanaugh’s appearance on Fox News was this month. Carried by 300 stations on three radio networks, the speech attracted the second-biggest audience of the decade, outdone only by the abdication speech of King Edward VIII. Black conceded that he had joined the Klan and said he had resigned before he became a senator. He neither explained his decisions nor apologized for his membership. In fact, in Professor Leuchtenberg’s account, “He spent the first third of his remarks cautioning against the possibility of a revival of racial and religious hatred, but he warned that this might be brought about not by groups like the Klan but by those who questioned his right to be on the Supreme Court.”

The national press excoriated the speech as thoroughly inadequate, but Roosevelt discerned accurately that “it did the trick,” as he told his confidant James Farley. A new Gallup Poll showed that a majority of Americans now believed that Black should not resign. He was on the bench when the new term opened three days after his speech, went on to serve for 34 years, one of the longest Supreme Court tenures, before retiring in 1971 at the age of 85.

And here’s the point: During those 34 years, Hugo Black became one of the great civil libertarians in Supreme Court history. One of his early opinions, Chambers v. Florida, overturned the murder convictions of four African-Americans on the ground that their confessions had been coerced in violation of the right to due process. He wrote the majority opinion in Engel v. Vitale, holding that official school prayer in public school violates the Establishment Clause of the First Amendment. He wrote Gideon v. Wainwright, granting indigent criminal defendants the right to counsel. He wrote for the court in Wesberry v. Sanders, a landmark reapportionment case requiring congressional districts to be of equal population. The list goes on. That Black is celebrated today as the ultimate champion of the First Amendment may explain why the Klan episode that convulsed the country has largely been lost in the mists of time.

During Hugo Black’s first days on the bench, Arthur Krock, a columnist for The New York Times, paid a visit to the Supreme Court to observe the new justice, much as journalists flocked to the court this week to watch Justice Kavanaugh. I find Krock’s rendition of the scene, which appeared in The Times on Oct. 12, 1937, almost eerie in its current resonance:

“Mr. Justice Black’s courtroom demeanor provided material for interesting study. His face had gained color. His manner had acquired content. He looked benign instead of harried. But now and then, as the chief justice read the orders and Mr. Justice Black looked out upon the lawyers and spectators from the impregnable fortress of life tenure, an expression touched his face which is common to certain types of martyrs. It was a mixture of forgiveness and satisfaction, of pity for unreconstructed dissenters and sympathy for himself who had borne so much in comparative silence.”

The question that matters now about Justice Kavanaugh is whether his tenure, which might well be as long as Hugo Black’s, will prove his detractors right or wrong. Speaking Monday night at the nakedly political White House ceremonial oath-taking, during which President Trump apologized to his successful nominee “for the terrible pain you have had to endure” during “a campaign of personal destruction,” Justice Kavanaugh said he had “no bitterness.” He would be a “force for stability and unity” on the court, he said, adding, “My goal is to be a great justice for all Americans and for all America.”

It may be decades before we know whether he has achieved that goal. Speaking only for myself — like Justice Kavanaugh, I prefer the sunrise side of the mountain — I hope he does.

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.

GE Morton
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Re: Brett Kavanaugh

Post by GE Morton » October 12th, 2018, 11:58 am

Steve3007 wrote:
October 12th, 2018, 1:58 am

Fooloso4's answer to our point seems to me like quite a good one. I would think that a judge applying for a job at such a high level should be an expert at impartial analysis of the law. He should be such an expert that this ability should largely remain even when under pressure. It should be second-nature as a result of years of experience.
I agree.
He should be capable of applying that expertise to the case against himself, to at least some extent. His reply to allegations against himself should not be furious counter-allegations citing anger against the results of the presidential election.
If the charges are false (as he claimed they were) and the motivations for them are political (as they surely were, at least in part), why should he not say so? And why should he not be furious?
I think it's not unreasonable to assume that this behaviour when under pressure showed his true position as, essentially, Trump's man on the US Supreme Court.
I disagree. It is not reasonable to assume a political allegiance with Trump merely because he has pointed out an obvious political motivation behind the accusations against him --- not necessarily on the part of Dr Ford, but surely on the parts of Democrat members of the Committee. (Actually, I'd be surprised if Kavanaugh has a very high opinion of Trump).
We don't live in an ideal world, but the ideal towards which they should strive is impartial analysis of law and the constitution.
Again, I agree. But no such issues were before him at that hearing. He was not being asked to adjudicate a constitutional question, but to respond to lurid accusations against him personally.
If the constitution is as open to different judges' interpretations of it, based on their personal preferences, as it seems to be, then that seems to me to cast doubt on its usefulness.
The Constitution has always been interpreted differently by different justices (and scholars), and always will be. There are two main interpretive "schools," "originalism" and the "living constitution" school. Justices tend to lean toward one or the other, though some have been switch hitters, depending upon the case. And even the most consistent will surprise from time to time. Is adhering to a particular interpretive philosophy a "personal preference"?

GE Morton
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Re: Brett Kavanaugh

Post by GE Morton » October 12th, 2018, 12:28 pm

Re: Justice Black . . .

Interesting piece. Thanks for posting it. Hugo Black was one of the great justices of the 20th century.

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Re: Brett Kavanaugh

Post by Steve3007 » October 12th, 2018, 12:56 pm

GE Morton wrote:If the charges are false (as he claimed they were) and the motivations for them are political (as they surely were, at least in part), why should he not say so? And why should he not be furious?
If serious allegations were made against me that I knew to be false then I would probably be furious. But then, I don't aspire to be a top judge. So the question is: To what extent ought we to expect someone who does have that aspiration to keep a cool head in all circumstances? I don't think the answer to that question is clear cut. But I accept your point.

Since (as I understand it) this wasn't a criminal trial in which he was to be either acquitted or convicted of a crime then, in at least some sense, it was openly and unashamedly political. It was (as I understand it) a test of Kavanaugh's integrity and, perhaps, (to paraphrase Kipling) to "keep his head when all about him are losing theirs and blaming it on him". That surely is a political issue and rightly so? He is a political appointee.
I disagree. It is not reasonable to assume a political allegiance with Trump merely because he has pointed out an obvious political motivation behind the accusations against him --- not necessarily on the part of Dr Ford, but surely on the parts of Democrat members of the Committee. (Actually, I'd be surprised if Kavanaugh has a very high opinion of Trump).
I'd be surprised if many people, including Trump voters, have a very high opinion of Trump. If I were them I'd see him as an effective, but dirty, tool for getting a job done.
Again, I agree. But no such issues were before him at that hearing. He was not being asked to adjudicate a constitutional question, but to respond to lurid accusations against him personally.
"Lurid" is a value judgement. They were allegations against him personally, true. As I said, I think the question of how someone who aspires to be a top judge - a top cool-headed analyzer of the application of law - should behave when such personal allegations are made is a difficult one to answer objectively.
The Constitution has always been interpreted differently by different justices (and scholars), and always will be. There are two main interpretive "schools," "originalism" and the "living constitution" school. Justices tend to lean toward one or the other, though some have been switch hitters, depending upon the case. And even the most consistent will surprise from time to time. Is adhering to a particular interpretive philosophy a "personal preference"?
Yes, I've read a little about the different schools of thought about the ways of interpreting the constitution. I don't think simply adhering to one of those schools of thought constitutes a personal preference based on personal moral convictions. But inevitably there is a lot of scope for doing so anyway.

Going back to the issue of abortion as a useful example: You said earlier (and I agree) that it's a difficult issue because it hinges on the definition of the word "person". So anything in the Constitution that mentions the supposed rights of "people" or "persons" can be interpreted according to the individual judges's definition of that term.

I'd be interested to read how Kavanaugh has approached issues like this. I've read a bit about concerns over "Roe versus Wade" but I'll have to read some more.

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Re: Brett Kavanaugh

Post by Fooloso4 » October 12th, 2018, 2:25 pm

GE Morton:
If the charges are false (as he claimed they were) and the motivations for them are political (as they surely were, at least in part), why should he not say so?
What evidence is there that her accusations were political? As she pointed out, there was a list of qualified candidates. Her charges were against him, not anyone else. Without specific evidence he should not have played that card. There is no way to determine whether he would have acted any differently if the charges were true or false.
… not necessarily on the part of Dr Ford …
It is her accusations that are at issue, not whether this could be used to the advantage of those who are opposed to him. The obvious tactic was deflection away from the charges. If his primary concern was to establish his innocence then I would think he would insist on a thorough investigation. As to whether the investigation was limited see Kamala Harris' questioning of the FBI Director, as well as Comey's latest comments regarding the limitations of the scope of the investigation even within the allotted time frame.
Is adhering to a particular interpretive philosophy a "personal preference"?
Yes. What else could it be? You may quibble over the term ‘personal preference’ but there is no objective standard of interpretation free of assumptions and emphasis. If there were there would not be the different schools you point to.

GE Morton
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Re: Brett Kavanaugh

Post by GE Morton » October 12th, 2018, 2:54 pm

Steve3007 wrote:
October 12th, 2018, 12:56 pm

Going back to the issue of abortion as a useful example: You said earlier (and I agree) that it's a difficult issue because it hinges on the definition of the word "person". So anything in the Constitution that mentions the supposed rights of "people" or "persons" can be interpreted according to the individual judges's definition of that term.
Actually, Roe v. Wade relied heavily on other uses of "person" in the Constitution. Justice Blackmun, who wrote the decision, noted that in no other context were fetuses included as "persons." E.g., Article I, Sec. 2, commands that a census "of all persons" be taken every 10 years. Fetuses have never been counted by census takers.
I'd be interested to read how Kavanaugh has approached issues like this. I've read a bit about concerns over "Roe versus Wade" but I'll have to read some more.
Kavanaugh is skeptical of the reasoning in Roe v. Wade.

https://www.vox.com/policy-and-politics ... tion-trump

Whether he would vote to overturn it is unclear, though, because he also sets great store by stare decisis.

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Re: Brett Kavanaugh

Post by Fooloso4 » October 12th, 2018, 8:46 pm

GE Morton:
Whether he would vote to overturn it is unclear, though, because he also sets great store by stare decisis.
I think he will follow Scalia who said that his oath of office bound him to interpret and apply the Constitution as he understood it, not as it might have been erroneously interpreted by Justices in the past. (South Carolina v. Gathers)

Renquist said:
law prohibiting an abortion even where the mother’s life was in jeopardy would violate the Constitution,” but otherwise states could pass laws restricting abortion. (Roe v, Wade)
In addition:
In cases involving economic doctrine stare decisis should be at its acme because people need stability to plan their business affairs. But in cases involving procedural and evidentiary rules the opposite is true (Payne v. Tennessee)

See also Kavanaugh’s 2017 address to the American Enterprise Institute: “From the bench: The constitutional statesmanship of Chief Justice William Rehnquist” (http://www.aei.org/publication/from-the ... rehnquist/)

One point he makes is:
Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition.
He goes on to say:
Of course, even a first-year law student could tell you that the Glucksberg approach [a decision on assisted suicide] to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973—as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the
justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare
decisis.
There are two points here. First, Rehnquist gave more weight to “history and tradition” than to stare decisis. Second, although Rehnquist thought that history and tradition shows that abortion is not rooted in history and tradition, in colonial times abortion was practiced and not prohibited but in later times was. Tradition is not just about the past but what is accepted and practiced today. What to make of this? Will Kavanaugh stand with stare decisis or with some vague notion of history and tradition?

Stare decisis was a safe position for Kavanaugh to take during the confirmation process, but he might follow his hero Rehnquist in opposing abortion despite precedent.

A bit of history on precedent. The following is taken from a 1991 article from the New York Times: “A Longtime Precedent for Disregarding Precedent”. It says:
The Supreme Court, too, has regarded itself as bound by precedent -- except for the more than 260 times that the Justices have overruled themselves since 1810 (https://www.nytimes.com/1991/07/21/week ... edent.html)

GE Morton
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Re: Brett Kavanaugh

Post by GE Morton » October 12th, 2018, 10:16 pm

Fooloso4 wrote:
October 12th, 2018, 8:46 pm

One point he makes is:
Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition.
He goes on to say:

Of course, even a first-year law student could tell you that the Glucksberg approach [a decision on assisted suicide] to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973—as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.
Yes. That is the same address quoted in my link above.
What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the
justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare
decisis.

There are two points here. First, Rehnquist gave more weight to “history and tradition” than to stare decisis. Second, although Rehnquist thought that history and tradition shows that abortion is not rooted in history and tradition, in colonial times abortion was practiced and not prohibited but in later times was. Tradition is not just about the past but what is accepted and practiced today. What to make of this? Will Kavanaugh stand with stare decisis or with some vague notion of history and tradition?
That is certainly a valid and important question. My guess is probably no better than yours, but one way he might thread the needle is by upholding the basic right to abortion, thus honoring stare decisis, but allowing regulations that place no "undue burden" on the exercise of that right. That is the approach he took in the Garza case (while on the DC Circuit court).

https://www.vox.com/policy-and-politics ... tion-trump

(Same link as above)

According to that analysis the Court has generally adopted Rehnquist's reasoning with respect to other claimed 9th Amendment rights, but it has not backed away from Roe.

GE Morton
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Re: Brett Kavanaugh

Post by GE Morton » October 12th, 2018, 10:54 pm

Fooloso4 wrote:
October 12th, 2018, 2:25 pm

What evidence is there that her accusations were political? As she pointed out, there was a list of qualified candidates. Her charges were against him, not anyone else. Without specific evidence he should not have played that card. There is no way to determine whether he would have acted any differently if the charges were true or false.
I have no reason to think her accusation was political --- at least, not in the sense that it was fabricated from whole cloth for political reasons. But her own political leanings may have weighed in favor of her decision to come forward. I.e., had the nominee, her teenage attacker, become a "liberal" judge with a record of which she and other Democrats approved, would she still have come forward?

The way the accusation was handled by the Democrats on the committee, however, was purely political.
As to whether the investigation was limited see Kamala Harris' questioning of the FBI Director, as well as Comey's latest comments regarding the limitations of the scope of the investigation even within the allotted time frame.
I agree it was limited. And those limits were sensible, for the reasons given earlier.
You may quibble over the term ‘personal preference’ but there is no objective standard of interpretation free of assumptions and emphasis. If there were there would not be the different schools you point to.
Sure. In that sense every judge's decisions will be informed by a personal preference. But is it a personal preference of the sort that precludes impartiality?

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Re: Brett Kavanaugh

Post by Greta » October 12th, 2018, 11:24 pm

Never mind. Many don't care how much the POTUS lies so, in context, does it matter if Kavanagh lied under oath? https://www.theatlantic.com/ideas/archi ... gh/571936/

Where do you go to find honest, unbiased accounts of these things? I still can't understand why Trump doesn't have to separate his family from his business while in office, nor why he didn't have to declare finances.

The checks and balances are breaking down. Each breakdown being one more nail in democracy's coffin in the US.

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Re: Brett Kavanaugh

Post by Fooloso4 » October 13th, 2018, 8:23 am

GE Morton:
But her own political leanings may have weighed in favor of her decision to come forward. I.e., had the nominee, her teenage attacker, become a "liberal" judge with a record of which she and other Democrats approved, would she still have come forward?
You trivialize what was obviously a very traumatic experience that continues to haunt her. Suggesting that an attempted rapist's political ideology makes a difference to the victim is insulting. Of course she would have come forward, to suggest otherwise is callous and vulgar. And of course the Republicans would have used it just as the Democrats did.
The way the accusation was handled by the Democrats on the committee, however, was purely political.
As was the way the Republicans on the committee handled it. There is no use pretending that the confirmation process is not political.
Sure. In that sense every judge's decisions will be informed by a personal preference. But is it a personal preference of the sort that precludes impartiality?
That needs to be looked at on a case by case basis. The split on the current court on decision after decision is telling.

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Re: Brett Kavanaugh

Post by Fooloso4 » October 13th, 2018, 8:35 am

Greta, one advantage of the Atlantic article by Benjamin Wittes is that it cannot simply be dismissed, as so much is, as partisan.
But my bottom line is the opposite of the one Flake expressed in his statement: Faced with credible allegations of serious misconduct against him, Kavanaugh behaved in a fashion unacceptable in a justice, it seems preponderantly likely he was not candid with the Senate Judiciary Committee on important matters, and the risk of Ford’s allegations being closer to the truth than his denial of them is simply too high to place him on the Supreme Court.

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Re: Brett Kavanaugh

Post by GE Morton » October 13th, 2018, 11:59 am

Fooloso4 wrote:
October 13th, 2018, 8:23 am

You trivialize what was obviously a very traumatic experience that continues to haunt her. Suggesting that an attempted rapist's political ideology makes a difference to the victim is insulting. Of course she would have come forward, to suggest otherwise is callous and vulgar.
However "callous," "vulgar," and "insulting" it might be, it is a relevant question and a real possibility.

Rape and attempted rape are heinous acts, and just because they are, the character and and motives of those accusing someone of those acts must be scrutinized and assessed, especially when the objective evidence is inconclusive (as it usually is), however discomfiting that inquiry may be for the victim. Otherwise you risk another heinous result: an injustice.

Keep in mind that, according to the studies, most rapes and rape attempts (63%) are not reported to police. So the question arises: What motivates a victim to report it? The largest class of unreported cases are those where the accused is a family member or close friend or relative; the victim does not report the crime because she does not wish to upset family relationships. Ford herself did not report her attack to police, her parents, or or even to close friends. That she decided to report it decades later in part because she disagreed with Kavanaugh's ideology is a plausible possibility.
And of course the Republicans would have used it just as the Democrats did.
No disagreement there.

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