ETA: I do see that you have answered this already.
You wouldn’t take advantage of the full professional resources of one of the greatest investigatory agencies known to history, free of charge, to look into an accusation against you which would undoubtedly clear your name, given that you know you didn’t do it?
To my mind if someone did that, it would probably be because they are quite worried about what else the investigation might turn up.
Explains the footprints in the peanut butter.
I would say it is a matter of character, not politics.
Ok. In an attempt to move this toward a constructive discussion of the merits, let’s agree to disagree about what I was implying. We both now agree (I think) that the question is whether the distinctions between a criminal trial and a judicial nomination are relevant to whether it is appropriate to speculate about the proverbial real killer. (Obviously, solid evidence that someone else did it is always appropriate in any context. So this whole line of debate is only really relevant if you agree that Whelan’s evidence is very thin.)
I think there are at least two aspects to whether you analogy is a good one, and on my reading, you’ve only addressed one of them, which was not the one I was primarily pushing. One is the harmful impact this has on the person so implicated–in this case, the middle school teacher. You reason (I think) that the stakes of sending a person to prison (or other outcomes in judicial proceedings) are not actually higher than the stakes of who to put on the Supreme Court. And so if collateral harm is appropriate in the first case as a matter of weighing the harm, then it is also appropriate here. I don’t actually agree with that because there are plenty of qualified nominees who could be confirmed and would issue identical opinions to Kavanaugh and whose confirmation would not involve such collateral damage. But this isn’t the main point to me. I agree that you have a reasonable if incorrect argument as to the weighing of harms.
The main distinction, which I don’t see you having addressed (and maybe I missed it), is that in many judicial proceedings and in criminal trials in particular we are not trying to maximize truth-finding. We would rather free nine guilty people than convict one innocent person, and so we put a big thumb on the scales of truth-finding. A part of that thumb is permitting criminal defendants to offer all kinds of evidence that we would otherwise find unreliable or prejudicial. For example, we allow men accused of rape to offer evidence about the accuser’s sexual past and the like even though in other contexts it is considered insufficiently probative or even defamatory (when false). The reason we are so permissive in that context is that we want to allow defendants to basically throw everything at the wall to ensure that if there’s any basis at all to doubt their guilt that it is considered. That context is totally absent when it comes to a judicial nomination. There simply is no analogous reason to put a thumb on the scales of confirming someone accused of misconduct.
See, there ya go. If you don’t ask to be investigated, you’ve got something to hide. If you don’t admit to being a witch, you’re a witch. If you do not see the danger in this line of thinking, I weep for this generation.
No. I WOULD NOT “take advantage” of having the magical FBI comb through my personal life (for the 7th time) over the last 36 years to disprove unfalsifiable claims that I did not commit that supposedly took place at an unknown date/time/place 30+ years ago.
If I were falsely accused of attempted rape, it would take every fiber of my being not to tell the accuser to take her lies and go straight to hell.
But, the fibers of my being would probably prevail, as I doubt that would play out well on national television.
How do you know the reason you don’t remember it was because you were drinking instead of that it didn’t happen?
It’s nonsensical to ask someone why they didn’t remember something without assuming that something actually did happen. And if you assume that, then there is no reason to ask any questions.
If you think Kavanaugh shouldn’t be on the court, then of course you would go for this. But if you think the Democrats are trying to run out the clock by sinking this nomination and then winning the Senate in November, and you support a nominee like Kavanaugh, then the difference is pretty big. In addition, as observed earlier, allowing this type of accusation to sink a nomination would encourage more of the same or similar directed at future nominees.
To use the numbers I threw out earlier when addressing this issue, what you describe is simply the reason why the standard of proof is 99% in criminal trials and 10% in SC proceedings. But as to what to allow as evidence - in order to meet whatever that standard might be - it’s simply a matter of how important that decision is.
IOW, what you’re arguing boils down to saying that this type of evidence will generally have a bearing in criminal procedures but not in SC confirmations, but that’s itself entirely a product of the standard of proof being higher for criminal convictions. So some speculation can take things from 99% to 97% but won’t get you from 99% to 49%. True. But if the credibility of the accusation is already at 10% to begin with, then this type of speculation can be relevant in taking it to 8%. After that, what’s left is how important the issue is.
[OT: I thought rape shield laws blocked men accused of rape from offering evidence about the accuser’s sexual past and the like.]
[in response to John Mace - forgot to quote]
Because I didn’t drink this morning.
Have you ever drank beer before?
Assume there was certainty that any investigation wouldn’t shed much light on things. Would you still believe an investigation is worthwhile?
If someone accused me of something I did not do, I’d tell them politely to go pound sand. I’d say it ruder than that.
How come you don’t remember when you stopped beating your wife?
Just as easily ask Ford, “How often did you go into bedrooms with older boys, when you were in high school?”
I don’t think that line of argument is very persuasive because the Senate would just confirm Trump’s nominee in a lame duck session in the unlikely event that the Dems took the Senate. As for the slippery slope, also not very persuasive since it assumes you can just manufacture credible accusations out of nowhere. If that were true, Gorsuch, Roberts, and Alito would have faced the same.
I don’t think this is responsive because the point I’m making is not about the effect of the evidence but instead about who gets to determine whether it is sufficiently reliable to consider. We let defendants offer unreliable, less-than-probative evidence to ensure that they’ve been able to offer every possible defense they might have.
This isn’t about how important the decision is. It is about what kind of error you want to tolerate.
In the civil context, yes. In the criminal context, no, for all the reasons I have described.
(It’s a bit more subtle than that, but basically we let criminal defendants get away with a lot more of this than we do civil defendants, much less people outside judicial proceedings.)
Against my will? Never.
Yes, but I drink mostly wine now.
I was responding to your hypothetical, btw, not to the elephant incident. I’ll repeat: It’s nonsensical to ask someone why they didn’t remember something without assuming that something actually did happen. And if you assume that, then there is no reason to ask any questions.
You can’t do it 100% of the time, but the chances are pretty good. Passions are a lot higher than they were when Roberts and Alito were confirmed (though they seemed high at the time). In addition, once a tactic is tried once and works it encourages future people to try it again.
But again, that’s solely a product of the fact that “every possible defense” suffices in criminal cases. All it takes is a relatively small bit of doubt, which is not the case in other situations. But where the case is already pretty weak, then the same would hold in other circumstances.
I’ve always encountered it in a criminal context, and a quick glance at various sources on the web confirms this. One random example
I think your preconceived notions color your perception of Harris’ exchange with Kavanaugh, but earlier Ravenman wrote this:
I think he’s probably right, but I also think most people’s primary objective is not to find the truth in this matter.
Are we all pretending that the Congressional elections aren’t just around the corner and that your 2 days or even 2 weeks assertion couldn’t stretch to, oh, say 45 days, 22 hours and 10 minutes? 
Just as a theoretical ballpark time frame…
Seriously, folks playing dumb about this aren’t being nearly as clever as they seem to think they are. Everyone sees the elephant in the room, and to claim with a pat of butter in your mouth that isn’t melting a bit that there really isn’t any time pressure on this and it’s just about Republicans wanting a photo op or some other horseshit is just hilarious. Own this shit…you know, Raven knows, pretty much everyone knows that if this can be delayed even a few weeks that it could be pushed back until after the elections…when everything could potentially change (I certainly hope they are going to change anyway). At this point, pointing out that the AH investigation only took 2 days is pretty disingenuous, IMHO, as the political situation wasn’t similar to what we have right now. This could be the Republicans last chance to get someone that checks all their boxes on the USSC, and if they don’t get this guy in they might have to compromise with someone more moderate because of the votes…or we might be deadlocked for months or even a year or so. Which might push this to what happened under Obama, if Trump doesn’t get his second term (or, gods willing, he’s impeached and sent up the river).
I have no problem with this tactic. It’s what the Republicans did, after all. My issue with this is the slippery slope aspects that everyone seems to think aren’t there. But I do have an issue with pretending that there isn’t any reason to be pushing this right now for a resolution asap if you are a Republican.
haha, ok. So re the hypothetical, you’d ask questions if they remember other things after they started drinking. If they remember this and that, but not a sexual assault, then that’s credible they don’t remember because it did not happen. If they don’t remember anything at all, then I’d think he didn’t remember things because of intoxication.
I’m assuming it happened because Ford places him in the room. Clearly you’d want to better establish that (there was a house with those particular stairs, that had a pool, who’s parents would go out of town and leave behind their kid alone, and that kid had thrown parties before when the parents went out of town, and those parties were attended by Ford, Kavanaugh, Judge, etc. ect.) as best you can.
One problem is that the event could have happened any day during the summer of 1982, 83, 84. Maybe even 1981. Are you sure you want one of the Senators to ask him if he’s certain he didn’t drink on any of those approximately 90 x 4 = 360 days?
I’m not really interested in educating you on this. Feel free to read Federal Rule of Evidence 412(b)(1)(C), the notes of the advisory committee, and the precedent interpreting it if you’re interested. The gist is that criminal defendants are allowed to use evidence of sexual history in ways that people in civil proceedings are not, because of the criminal context.