New Hampshire Republican leader Andy Martin backs Judge Brett Kavanaugh for the U. S. Supreme Court
ANDY MARTIN WORLDWIDE COMMUNICATIONS
Chicago-San Francisco-Palm Beach-Manchester, NH
P.O. Box 750426
Forest Hills, NY 11375-0426
Tel. (866) 706-2639
Fax (866) 214-3210
Andy Martin, J. D.
Adjunct Professor of Law
September 25, 2018
Hon. Chuck Grassley
United States Senate
Washington, DC 20510
via Fax (202) 224-6020
Dear Senator Grassley:
Because I believe your somewhat inept leadership of the Judiciary Committee is doing incalculable damage to the Senate and to your own staff, I am writing to express my opinions and to ask that you take strong leadership in the continuing matter of the confirmation of Supreme Court nominee Brett Kavanaugh.
1. My background and experience
I have litigated cases in the D. C. Circuit going back forty-nine (49) years with a surprisingly strong average of success, so I am familiar with that court. I was a witness concerning another nominee in a hearing before your committee in 1974. I worked for Senator Paul Douglas, worked with Senator Everett Dirksen’s office and served as an outside consultant to Senator Phil Hart. I am not a partisan ideologue although I am a conservative Republican.
I first went to the Senate as an intern in 1965, working on a senior thesis in the Parliamentarian’s office. I served as an informal background expert for the Church Committee regarding the CIA.
Until recently, I maintained an office on Connecticut Avenue where I did consulting, research and analysis.
2. Culture analyst
As a student writer, I wrote an unpublished novel titled the “Orphans of Suburbia,” which dealt with adolescents and college students such as Dr. Ford and Judge Kavanagh. That experience was woven into my analysis, research and profiling over the decades. So, I think I am somewhat unique in understanding the culture of Georgetown Prep and Yale. I was a football player and honor student at the University of Illinois so I toggled between the “jock culture” and the “nerd culture.” When I express analysis and opinions they are premised on a deep reservoir of experience and observation.
3. Similar incident experience
I have observed and participated in situations where students were acting out, and where someone exposed to a traumatic situation could not remember the episode a couple of hours later. (Seven years later the victim still did not have any awareness of the incident and the danger to her life.)
4. The witnesses
One witness, Dr. Ford, was a child, and has never been analyzed with a focus on her status as a child of fifteen (15) at the time her accusations arose. The perceptions of a child differ materially from those of a mature adult. The other “witness,” Ms. Ramirez, was a young adult at college. She can be expected to have greater awareness and cognition.
Unfortunately, they have been lumped together as “accusers” despite the fact that their emotional experiences were very different and should not be conflated. I do not believe either witness should be attacked. But even under the looser standards of a senate hearing the testimony of every witness must be tested for accuracy. The bizarre claim by some of your colleagues that any accusation, however undocumented, must automatically be believed is sheer nonsense.
A. Dr. Ford
I have an intuitive sense that Dr. Ford was exposed to something unpleasant. But I am challenged to believe her story about Judge Kavanaugh. Initially I thought she was at some large, raucous party. Today I became aware that the “party” may have been much smaller, a factor that has to be carefully weighed in evaluating the credibility of her testimony. I have been in fraternity parties at Wesleyan University where people were indeed out of control and probably were not aware who was doing what to whom (one reason I chose to attend the U. of I.).
We also have not seen any awareness of the guilt trigger. If someone is guilty about what happened to them in an incident, they will inevitably repress, suppress and distort memory of that event. With all due respect, there is a greater likelihood that Dr. Ford was failed by her parents than failed by Judge Cavanagh. A fifteen year-old girl (child) should not have been sent unsupervised to a “party” with a bunch of older boys. The conflicts and confusion that arose from an unspecified experience at some unspecified location at some unspecified date and time make her recollection of events tenuous even though there is a genuine core to her trauma.
I know we are in a senate hearing, and not a court of law, as some people seem to forget. But I doubt a prosecutor would take a case to a grand jury where the victim’s recollections were so highly selective and opaque.
I also find Dr. Ford to be highly manipulative. We seem to forget she has a Ph.D. in psychology and has been a researcher and faculty member for many years. So, when she claims she is an ingenue in public, seeking special treatment, her explanation seems somewhat hollow.
A person who is seeking to stay anonymous does not start by contacting a newspaper and “requesting confidentiality.” Whether she knows it or not, Dr. Ford’s initial contact with the Washington Post psychoanalytically was an effort to become public and to be drawn into a public arena. Like Bre’r Rabbit asking not to be thrown into the Briar Patch, constant protestations of a desire for confidentiality, all made to public officials, taken in totality are not the way an experienced college professor advised by an experienced attorney would protect her anonymity.
Dr. Ford’s constant confidentiality demands amount to a desire to enter the public sphere. That is why I believe she is a highly manipulative individual and, with an increasingly prominent cadre of attorneys to assist her, her uncompromising demands have successfully made the Senate into a laughingstock.
As I write Tuesday morning, she has “accepted” an offer to testify” without any announced criteria for her testimony. How can you accept an offer without accepting all of the offer? A partial acceptance is a counteroffer, not an acceptance. The Senate has looked feeble while Dr. Ford has now been “believed” by senators and members of the public who have never seen her, never heard her and have no idea what her detailed accusations or evidence are. Such “belief” is more akin to a cult that a confirmation proceeding.
B. Ms. Ramirez
The differences between a fifteen year-old child and an eighteen year-old woman are considerable. Thus Ms. Ramirez’ testimony can legitimately be held to a much higher standard. Unfortunately, she offers an even less credible platform for her accusations. If you have to caucus with a lawyer for several days to arrive at a “story,” no prosecutor would take such a claim seriously. If you are still not clear on who did what, decades later, there is little prospect that even the loser evidentiary standards of a senate proceeding can rescue such an insufficient body of factual information from irrelevance or disbelief.
5. Your somewhat bizarre leadership of the process
A. The ridiculous “witness” process
The clown show where “witnesses” pop up long after the committee’s investigation and hearings have been completed, and members of the Committee claim such witnesses “must be heard,” is nonsense. The Committee should adopt strict, public procedural rules for processing future nominations, so that the travesty of closing a hearing and a background check, only to face claims of a need to reopen, must be avoided.
The Committee looks incompetent, feckless and out of control. No one has a right to obstruct or disrupt the Senate. Orderly process is essential. Because you appear to have weak control of the committee, you have been forced to tolerate the regrettable process where people are popping up, demands are made for “investigations” and the abuse keeps repeating itself, all in an untimely manner. Every area of government, legislative, judicial and executive, routinely sets timetables and deadlines and adheres to them. Your committee is out of control. Constant deadlines, all of which were then ignored, undermine the credibility of the Committee. That is not negotiation; it is capitulation.
B. Your failure to defend staff
I have observed staff up close for over half a century. The senate has some of the most competent investigators and analysts in Washington. But when have you defended your staff and said their investigation can be the functional equivalent of an FBI background check? Instead we hear a constant chorus of demands for an “FBI investigation,” when agents would only do what your staff is doing, try to locate witnesses, listen to stale recollections and record them in some coherent manner. You need to stand up for your staff and not let your employees be bullied by blustering attorneys who do not hesitate to make exorbitant demands and posture for the media.
When the Church Committee staff was investigating allegations of CIA misconduct, the evidence was less than a decade old. I am not sure that FBI background checkers could do a better job than your staff in evaluating what are now 35 year-old matters, but nowhere have you stood up to say “enough of this FBI demand.” I can’t say for sure, but I suspect that your experienced staff members could do an even better job than the FBI, because they would be more relaxed and informal than agents.
C. Who runs the Committee?
While I realize that in most hearings senators want to ask the questions and posture for the cameras, when you are dealing with allegations of criminal conduct due process demands a more coherent interrogation process. I endorse the proposal that a female attorney ask the questions. That way the process will not be interrupted every few minutes as you switch from senator to senator, and counsel can ask follow-up and probing questions without the necessity of yielding every five minutes or so. Who should make the decision as to how questioning should proceed?
In what is one of the more bizarre, and suspicious, demands by Dr. Ford, she wants senators to interrogate her, because such questioning would be far less organized and coherent than an inquiry presented by a single staff attorney, preferably a woman. If you don’t have someone on staff that you believe can conduct a thorough examination of the witness, there are many, many very competent women who are former prosecutors and defense lawyers in Washington who would handle the job with ease. (I do not believe former Senator Ayotte is a strong enough interrogator to fill this role.)
Dr. Ford’s accusations have to be subjected to serious, searching inquiry. That is not possible with a rotating panel of twenty-one senators. Even if the Democrats will not agree to route their own questions through a single attorney, Republicans absolutely must employ a single questioner, preferably a woman. Don’t bungle the inquiry by using the traditional approach to more routine proceedings.
6. An offer of assistance
Your staff is free to pick up the phone and call me. I would be happy to offer insight and analysis. As you can see from the foregoing I am something of an “all-in-one” expert with experience in several areas of concern to the Committee.
7. Judge Kavanaugh deserves a scrupulously fair process, not a one-sided circus
Watching members of your Committee pontificate on their “belief” that Dr. Ford is telling the truth has been a very disappointing experience. I do not want to name names, but some senators are an embarrassment to themselves and the states that sent them to Washington. There is no way you can “believe” a witness you have never seen, who has never spoken and whose testimony remains secret. Rather, to use Justice Thomas’ eternal comments, you are allowing Judge Kavanaugh to be subjected to a “high-tech lynching.”
Judge Kavanaugh deserves better. Let’s see if you provide it, or if the Jell-O-like leadership of the Committee persists.