Dorf on Law

by Diane Klein

by Michael C. Dorf Yesterday was excruciating. I can only imagine what it was like for women (and men) who are themselves survivors of sexual assault.  I really really really wanted to write about something else today. But I'm a constitutional law professor and whether the Senate confirms Brett Kavanaugh to the Supreme Court is an extraordinarily important question. I continue to think--as I wrote last week --that the ultimate stakes for legal doctrine are low: If Kavanaugh is rejected or withdrawn, the Senate will confirm a very conservative replacement one way or another. Nonetheless, what happens next will shape the particular path of the Court and of constitutional politics for a generation or more. I feel some obligation to weigh in. Herewith a few observations.

by Sherry F. Colb During his unprecedented FoxNews interview to clear his name, wife by his side, Brett Kavanaugh declared his innocence for all to hear. In the course of answering the interviewer's questions, he asserted that he did not have sexual intercourse during high school or for years afterward. Asked for clarification, he said that he was a virgin in high school and for years afterward. My first reaction to these virginity announcements was to wonder how they could be relevant to Kavanaugh's guilt. What he stood accused of doing would not have lost him his virginity. But after thinking about it, I remembered who else brings up their virginity to fight off charges: women in the past. When women accused men of raping them, the women could long invoke their virginity, their chastity, as a basis for concluding that they would not  have consented and that they therefore did not  consent.

by Neil H. Buchanan As I write this column, the Senate Judiciary Committee's emergency Kavanaugh hearing is either ongoing or is about to begin.  Although that hearing will certainly be important and could even change the course of history, it will also surely be stomach-turning in any number of ways.  I am, therefore, ignoring it as much as I can. I thus return here to writing about the stakes of the Republicans' ongoing effort to remake the Supreme Court by adding either Brett Kavanaugh or one of several Kavanaugh-equivalents as a fifth arch-conservative vote. I cannot, however, resist adding that Republicans are once again missing what seems like a promising opportunity to make lemonade out of lemons.  If they merely go through the motions with today's hearings but then immediately "plow through" with scheduled votes by the committee (tomorrow morning) and soon thereafter in the full Senate, not only will they be damaging themselves politically, but they ...

by Sherry F. Colb In my column  for this week, I discuss the destructive ways in which we can at times shut down people who express ideas or use words that someone says are offensive. Examples I use include stigmatizing the word "picnic" and the word "Jew" (as a noun, to refer to a person of Jewish ancestry or faith). One of the ideas in the column is that we should get out of the habit of deferring to people who claim an elevated status, whether because of oppression or for some other reason. In this post, I want to talk more about why deference is a mistake. The paradigmatic example of deference on the left involves some individual or group of people, defined by an identity characteristic such as gender or ideology, insisting that their position or factual or normative perspective is the only right way to look at things. Someone from outside the relevant group might express a viewpoint only if it is the same as that of the group. If the outsider strays fro...

by Neil H. Buchanan Remember the articles from back in June and July, immediately after Justice Anthony Kennedy's surprise retirement, with headlines like: "Brett Kavanaugh, Consensus Top Choice, Awaits Inevitable Nomination?"  You know, the news stories that stated as obvious fact that the only surprise about Kavanaugh was that he was not already on the Court, so superior was he to all of the other possibilities, and that Neil Gorsuch was lucky to have been tapped ahead of Kavanaugh? You remember those news reports, right?  Of course not.  Kavanaugh was merely one of many possibilities, and while insiders were hardly surprised by his nomination, he was by no means the obvious superstar pick whose inevitability was impossible to deny.  He was just another carefully groomed movement conservative who would reliably move the Court even further to the right, and his extra oomph was that he was the most likely among them to give Donald Trump a pass when the Court inev...

by Michael C. Dorf Last week, while in North Carolina surveying some of the damage caused by Florence, the president came across a property on which a yacht had washed ashore during the storm. According to the NY Times story : “Is this your boat?” Mr. Trump asked the homeowner.  When the man shook his head and said “No,” the president turned with a grin and replied, “At least you got a nice boat out of the deal.” Then, the real-estate-tycoon-turned-president added: “They don’t know whose boat that is. What’s the law? Maybe it becomes theirs.” This was, admittedly, not an important moment in the Trump presidency, but it is a reminder that the man whose principal claim to power is business acumen has no idea how a system of capitalism actually works. Nor does he have any sense of justice in a regime of private property.

by Michael C. Dorf As the artificial deadline approached for Dr. Christine Blasey Ford to accept the invitation of Senate Judiciary Chair Chuck Grassley to testify by his completely artificial deadline of Monday, word came yesterday that she and her lawyers were trying to negotiate better terms. I  have no idea whether such negotiations will work and therefore she will testify some time later next week, whether she will cave and testify on Monday, whether stalemate will reign and the Republican-controlled chamber will proceed to a vote on Judge Kavanaugh's nomination, or whether some hitherto unimagined new development will take us all in a new direction. Meanwhile,  the claim by Grassley that the FBI can't conduct further investigation following a  nomination doesn't pass the laugh test. Grassley wrote of the Senate: "We have no power to commandeer an Executive Branch agency into conducting our  due diligence" (double emphasis in original). That's true, ...

by Neil H. Buchanan In my latest Verdict column, " What Kavanaugh Could Have Said, But Didn’t: 'I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment' ," I offer a suggestion about how Brett Kavanaugh could have responded to the sexual assault and attempted rape allegations against him in a way that would have been humane and honest and that might have actually won over some skeptics.  I then note that he went in exactly the opposite direction, proving even more emphatically that he should not be on the bench. I continue to be puzzled by the Republicans' strategy here.  As Professor Dorf ably explained yesterday , even though Republicans are acting as if they absolutely must rush Kavanaugh through as quickly as possible, the odds that they will somehow fail to fill this Supreme Court seat with either Kavanaugh or another hard-line movement conservative are essentially one in a gazillion.  That is my characterization, not Profess...

by Michael C. Dorf Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked  themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur . Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.