The Senate hearing involving Christine Blasey Ford’s accusations against Brett Kavanaugh ended in a he-said/she-said impasse. A defamation lawsuit might remedy that.

Federalist
Chris Murray

The controversy over Brett Kavanaugh’s confirmation to the Supreme Court didn’t end when he was sworn in. Christine Blasey Ford’s accusations will haunt Kavanaugh for the rest of his career. Critics say his elevation to the court will cast a shadow of illegitimacy over the institution for years to come.

This is why Kavanaugh should consider suing Ford for defamation now: Not to retaliate or seek damages, but in the public’s interest. The Senate Judiciary Committee’s proceedings involving Ford’s accusations left many observers unsure what to think. Also, a defamation case would give both Kavanaugh and Ford access to judicial procedures—document requests, interrogatories, subpoenas, depositions, location inspections—for discovering the truth.

Lengthy story continues at the link.

Link

This article might be useful regardless of the conclusion about the particular potential case of Kavansugh v. Ford. There are some practical problems and opportunities which arise that are worth knowing about.

For all the reasons, he won't...

The old bag Feinstein is saying that she will open up investigations into Justice Kavanaugh again if the democrats take control of the senate.

quote:

Originally posted by grumpy1:
The old bag Feinstein is saying that she will open up investigations into Justice Kavanaugh again if the democrats take control of the senate.

She's dreaming... THAT's the one Bret should sue!

What I say is FUCK FEINSTEIN and the rest of the democrats. Personally, I am sick and tired of these parasites and cancers to our USA and society. These PoS's need to be stopped and silenced...... Enough is enough of these people. If they don't like the USA, pack your shit and get the hell out of MY country! Just saying......

Devil's advocate time, if I can manage to do a decent job of it.

The author claims that denying Kavanaugh confirmation is a "punishment" - and yet the Senate had every right to deny Kavanaugh the confirmation for any reason or no reason at all. After all, the Constitution does not include anything like an objective standard that the Senate is obligated to follow.

The author speaks of cross-examination being an important means of finding the truth. One could very easily argue that Rachel Mitchell's questioning of her was in fact a cross-examination, or at least had all of the virtues and strengths of a cross-examination. This would be particularly true since Mitchell is an experience prosecutor of sex-crimes cases and had, in aggregate, more time to question Ford than anyone else did or could expect to have.

Now, are there questions as to whether or not Ford was afraid to fly? How about surrounding the polygraph test? Well, if you want a jury to consider her credibility in general, then those would be relevant. Neither, however, is determinative in showing that Ford lied or was mistaken when she alleged that she was assaulted, that Kavanaugh was in the room when it happened, or that Kavanaugh assaulted her.

Would a more rigorous discovery process reveal more relevant information? Maybe, but there's no reason why anyone should necessarily believe that's true. If an attorney were advising any client other than Kavanaugh, said attorney would, in good conscience, have to tell their client that this proposition could amount to nothing more than a long, expensive fishing expedition that would produce nothing. That may be worthwhile to a client who's looking at going to jail, but may not be worthwhile to a Justice who's succeeded in being confirmed to the Supreme Court.

The author makes the point that a discovery process would allow Kavanaugh to bring in other witnesses and look for other evidence. It could also allow Ford's attorneys to bring in other witnesses and force Kavanaugh to jump through who knows how many other hoops in the course of their "looking for other evidence". Just as importantly, they might bring in evidence which isn't dispositive but would cause a jury to question Kavanaugh's credibility. That's not supposed to happen, of course, but it does.

The author argues that a defamation suit would make it possible to explore the degree to which Ford's testimony was motivated by politics. Only you don't ever really want a trial to devolve into a political debate, because (1) jurors may find themselves either for or against either party depending on their personal political points of view, and (2) no court in the United States is worth a damn - or wants to be - when it comes down to determining the objective truth or falsity of a political opinion. After all, Ford's politics may or may not speak to her credibility, but most certainly cannot be used to prove whether or not Kavanaugh was involved in a sexual assault on her. At the same time, such a line of inquiry would almost automatically wind up looking like an attempt to beat up on a woman who claims she was sexually assaulted by the person who claims she defamed him. Finally, how in the hell do you prove that someone's opinion about politics - and we all have a right to have political opinions - would necessarily have led to the accusations Ford made against Kavanaugh?

Then there's the elephant in the room. Kavanaugh has a right to a fair trial, but so does Ford - particularly in a trial where she would be the defendant. We can't guarantee that the case would never be appealed to the Supreme Court, and we can't guarantee that Kavanaugh would recuse himself if it did. How then could the courts guarantee Ford a fair trial?

In fine, this is a fascinating "thought experiment" and a worthwhile essay to read but it would probably suck as legal advice.

As much as I'd like to see the record corrected and the truth prevail, the simple-minded would see him as a bully. The media would help that narrative and she would actually gain credibility as a victim of Kavanaugh's brutality. He won. Best move on.

Very perceptive. Whether her politics prompted her claims or not, those have nothing to do whether whether the event she alleges happened as she claimed or at all.

As you point out, discovery goes both ways. There are many uncertainties. Things just don’t always come off as anticipated, so there are risks. I bet LA DA would have assigned another detective had they known of that tape.

This fellow seems to fixate on the public interest angle, curiosity really, rather than on the best interests of one party or the other, who have something at stake.

quote:

Originally posted by Cousin Vinnie:
What I say is FUCK FEINSTEIN ...

Eeeeeeeewwwwwwwwwwwwwwwwww.

A) He has to prove damages.

B) He has to prove that she made false statements.

The public interest angle is well and fine but if Ford admitted it was all lies tomorrow there would always be a significant portion of the left who will never see the Court as legitimate because they don't see Trump as legitimate. In their eyes Trump is illegitimate (take your pick on Russia, the popular vote, his statements, etc.), Gorsuch stole Garland's seat and is double illegitimate, and Kavanaugh is illegitimate. The truth doesn't matter. Facts don't matter. Feelings are all that matters.

Kavanaugh won. Move forward and let history judge.

quote:

Originally posted by Cousin Vinnie:

FUCK FEINSTEIN

Nope. You have to draw the line somewhere. I can not imagine ever being that sex-starved.

quote:

Originally posted by Scurvy:
A) He has to prove damages.

B) He has to prove that she made false statements.

A) He likely will never be able to teach law ever again, or ever again be invited to give a speech at our most "prestigious" law schools ever again. Not to mention he may never be able to coach girls again.

B) I'd argue that's already been proven.

quote:

Originally posted by Il Cattivo:
Devil's advocate time, if I can manage to do a decent job of it.

The author claims that denying Kavanaugh confirmation is a "punishment" - and yet the Senate had every right to deny Kavanaugh the confirmation for any reason or no reason at all. After all, the Constitution does not include anything like an objective standard that the Senate is obligated to follow.

I may have misunderstood that passage, but I interpreted “Ford came forward to block Kavanaugh’s confirmation, a form of punishment.“ as saying that her attempt to prevent his confirmation was an attempt to punish him. Not saying the senate owes anybody anything.

I definitely agree with your main point that opening the can of worms might not be the most prudent course.

As gratifying as it would be to see her revealed as a liar, crushed, and Justice Kavanaugh vindicated, it might not work out that way. It might just stir up a bunch more press (and we know which way that leans) and reach no real conclusion.

I'd love to see the arguments I came up with blown away. Not because I'm trying to dare someone to do it, but because I think Ford's losing a defamation suit would be both justice for Kavanaugh and a deterrent to giving future nominees the Bork or Thomas or, I guess, Kavanaugh treatment.

Here, the author defined the "punishment" as blocking Kavanaugh's confirmation. But the Judiciary Committee is the only power on Earth that can recommend against a nominee's confirmation, and the Senate is the only power on Earth that can deny a nominee a confirmation. Even if what Ford did was, as I suspect, motivated by nothing more than spite and political hubris, denying a confirmation is simply beyond her power.

I admit that the author's definition of punishment as blocking the confirmation is kinda weird. After all, defamation is a wrong that involves destroying his relationships and ability to get along with at least some of the people in general. Why the author didn't stay focused on that, I don't know. If defamation itself were proven, then that should certainly be something the courts can address.

Has a president ever changed the tenor of the Court by making appointments? Roosevelt?

quote:

Originally posted by Il Cattivo:
I'd love to see the arguments I came up with blown away. Not because I'm trying to dare someone to do it, but because I think Ford's losing a defamation suit would be both justice for Kavanaugh and a deterrent to giving future nominees the Bork or Thomas or, I guess, Kavanaugh treatment.

Here, the author defined the "punishment" as blocking Kavanaugh's confirmation. But the Judiciary Committee is the only power on Earth that can recommend against a nominee's confirmation, and the Senate is the only power on Earth that can deny a nominee a confirmation. Even if what Ford did was, as I suspect, motivated by nothing more than spite and political hubris, denying a confirmation is simply beyond her power.

I admit that the author's definition of punishment as blocking the confirmation is kinda weird. After all, defamation is a wrong that involves destroying his relationships and ability to get along with at least some of the people in general. Why the author didn't stay focused on that, I don't know. If defamation itself were proven, then that should certainly be something the courts can address.

Defamation is false statements injury to reputation. There are several categories and several categories of damages, general and special with varying degrees of proofs.

There is a ~$33,000 a year difference in salary between Supreme Court and Appeals Court, so if her false statements were seen as the cause of his rejection, multiply that out by life expectancy. Was it her statements or the other wahoos who caused him to be dropped by Harvard as an instructor for about $22,500 per year? Add that if so. Maybe the facts show she had no basis for these statements and throw in some sum for malice. He was confirmed anyway, so the loss of income is out as a damage item.

Who knows what the admissible evidence turns out to be, but from what I saw, the event as she described is almost certainly not true in material respects, and not inconceivably made up entirely.

quote:

Why Brett Kavanaugh Should Sue Christine Blasey Ford For Defamation

I have no opinion on whether or not Brett Kavanaugh Should Sue Christine Blasey Ford For Defamation. That's completely up to him. It's his cause of action. He knows the legal arguments, and he also knows the potential perils, personally and politically.

This 'public interest' stuff is just wishful thinking.

He should just go on and be a great Justice and forget about this totally inept attempt to pervert justice.
He can do far more damage to their cause by upholding the Constitution than a meaningless personal lawsuit, IMO.

There also significant partial or complete privileges when the subject is a public figure or involved in a matter of public interest. Very difficult to overcome those in this setting.