Brett Kavanaugh v. Christine Blasey Ford – Who Can You Believe?


With headlines blazing in The New York Times on September 28, 2018, “With what degree of certainty do you believe Brett Kavanaugh assaulted you?” “100 percent” above the picture of Christine Blasey Ford, and “None of these allegations are true?” “Correct.” “No doubt in your mind?” “Zero. I’m 100 percent certain” above a picture of a defiant Brett Kavanaugh, who can you believe? Mr. Trump threw in his two cents in calling Ms. Ford’s testimony “credible” and Judge Kavanaugh’s “incredible.”

Does it matter to the Republican Party whether Dr. Blasey is telling the truth? Probably not to the vast majority. But in a closely divided 51-49 Senate, a new call from Republican senators Jeff Flake (R-AZ), Lisa Murkowski (R-AK), and Susan Collins (R-ME) on the 28th for a limited FBI investigation forced the Republican leadership to accede to a limited investigation of the accusations of sexual misconduct against the young Judge Kavanaugh. The order to the FBI by Mr. Trump afterwards was highly restrictive that the “supplemental” investigation “must be limited in scope and completed in less than a week.” After heavy criticism, Mr. Trump said on October 1st that the FBI “should interview anybody that they want within reason.” So far, however, it appears that as of Wednesday, October 3d, many potential relevant witnesses had not been interviewed, and Republicans were pressing for a vote on confirmation by the end of the week based on word from the FBI that it could finish its investigation by Wednesday.

The Republican strategy of not assailing Dr. Blasey as the Senate committee did Anita Hill in 1991 with all male questioning, and attempting to find an alternate ground of mistaken identity on the part of Dr. Blasey brings to mind the passage in Pride and Prejudice (pity those who have not read it or seen one of its multiple screen versions) in which sisters Elizabeth and Jane Bennet discuss Elizabeth’s new found information concerning George Wickham’s perfidious deeds:

What a stroke was this for poor Jane ! …Most earnestly did she labour to prove the probability of error, and seek to clear one without involving the other.

``This will not do,'' said Elizabeth . ``You never will be able to make both of them good for any thing. Take your choice, but you must be satisfied with only one.

Here we must certainly be satisfied with only one, and the evidence points to Dr. Blasey. From all accounts, she has led a respectable life since birth and even passed a polygraph test administered by an ex-FBI agent. Judge Kavanaugh has indeed led a respectable life after graduating from Yale University, but many reports indicate that he led a life of heavy drinking and partying at his Catholic prep school in Georgetown and at Yale. It may well be that he forgot about the episodes of which he is now accused because of the heavy fog of alcohol. Thus he could be telling the truth in his own mind. Yet that should not do for a person aiming to be confirmed to the highest court in the land. Possibly the fact that he was a jock, good in sports and captain of his high school basketball team, persuaded him that he could take more liberties than the normal high school and college student, and any restraints were further lowered by his prodigious alcohol intake. His bland testimony that “I did not drink beer to the point of blacking out” stands in stark contrast to a number of statements by his classmates, one of whom said “I definitely saw him on multiple occasions stumbling drunk where he could not have rational control over his actions or clear recollection of them,” and another that he was “frequently, incoherently drunk,” and that when he was, he became “aggressive and belligerent.” Most of us who drank in college saw the difference in people who drank, some of whom just became happier and others mean drunks.

Given the above, the least that should happen in an FBI investigation no matter how limited in time and scope should be interviewing or attempting to interview all people from high school and college days who might be able to shed light on the actions or inactions of Mr. Kavanaugh and Ms. Blasey. Such an investigation should also canvass the further sexual allegations against Judge Kavanaugh by Deborah Ramirez, a fellow classmate at Yale, and Julie Swetnick. It should be noted that even if Ms. Swetnick could not identify him as one of the sexual assaulters, it should be disqualifying for confirmation if her assertion that he was there is to be believed as it appears that he did nothing to stop the episodes from occurring.

Other than the character issues, the stakes are high in the confirmation process as Judge Kavanaugh has demonstrated a conservative bent that would shift the court to the right for many years if confirmed. His record on matters relating to immigration is short, but discouraging to those who believe in immigrant rights. As pointed out by the American Immigration Council in its September 5, 2018 article, “Brett Kavanaugh’s Record on Immigration Raises Questions,” he has dissented in 3 cases stating his belief that the immigrant should have lost – in Agri-Processing Co. v. National Labor Relations Board in 2008, he said that undocumented immigrants should not be entitled to labor law protections because they were not legally permitted to be employees; in Fogo de Chao Holdings v. U. S. Department Of Homeland Security in 2014, he suggested that hiring Brazilian chefs under L-1 specialized knowledge visas was the restaurant just trying to cut labor costs masquerading as specialized knowledge; and in Garza v. Hargan in 2017, he accused the majority of a radical expansion of the law and that the DC circuit court had created a new right for unlawful immigrant minors in U. S. government detention to obtain immediate abortion on demand.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in theBar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2018), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

This article © 2018 Alan Lee, Esq.