'What could go wrong?' Ex-Obama WH lawyer's approach to Kavanaugh-Ford should set off alarm bells

Kate Shaw is allegedly a law professor. But we’d like to see some concrete evidence first, because we have a hard time believing that a legal scholar could seriously offer up a take like this on Brett Kavanaugh:

Credible allegations against Judge Kavanaugh should be disqualifying, even if the evidence wouldn’t support a criminal conviction or civil liability. https://t.co/2NMONymAwm

— NYT Opinion (@nytopinion) September 20, 2018

Shaw writes:

It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.

It’s natural because due process is a right outlined in the United States Constitution. Ever heard of it, Kate?

Other nominations have been unsuccessful because of private conduct. Another Reagan nominee, Judge Douglas Ginsburg, withdrew from consideration after the press uncovered reports of marijuana use that the F.B.I. had failed to unearth. And the Senate blocked President Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice after evidence emerged that as a sitting member of the court, Justice Fortas had also been serving as a de facto adviser to President Johnson, and after questions were raised about the propriety of outside payments he had received while on the court.

These allegations weren’t tested with the rigor that would have attached to judicial proceedings; neither evidence nor testimony (where it was given — Judge Ginsburg withdrew before testifying) was subject to the sort of adversarial testing that would occur in a court of law. But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.

"Judge Douglas Ginsburg, withdrew from consideration after the press uncovered reports of marijuana…"
Yes, and Ginsburg ADMITTED it.https://t.co/ygR0VqJoZw
"…culminated Thursday with Judge Ginsburg's admission that he had smoked marijuana several times…"

— Jeryl Bier (@JerylBier) September 20, 2018

"[T]he Senate blocked President Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice after … after questions were raised about the propriety of outside payments he had received while on the court."
These weren't allegations. He got the money!https://t.co/2IfMdij6Nz

— Jeryl Bier (@JerylBier) September 20, 2018

Oh.

Shaw concludes:

This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.

First of all, if there are credible allegations, we’d love to see them. Because so far, the allegations we’ve seen are conspicuously lacking in credibility. There can’t be “further corroborating evidence” without there being any corroborating evidence to begin with. And second of all, since when should mere allegations be enough to derail someone’s career?

This is what @kateashaw1's argument is about. Roe versus Wade.https://t.co/OWsHxMnjo9 pic.twitter.com/F7RJYglZMD

— Jeryl Bier (@JerylBier) September 20, 2018

Of course Chris Hayes thinks this is just brilliant, brilliant stuff:

I am biased, I will admit, but this is so excellently done:https://t.co/jqGONmMSF6

— Chris Hayes (@chrislhayes) September 20, 2018

Oh, you’re biased, Chris, seeing as Kate Shaw is your wife and all. But that piece is not excellently done. Not by a long shot.

"Even if the allegation against Judge Kavanaugh is a lie, if it sounds good enough, he should be disqualified." This is the official position of the left now. https://t.co/ZXdWQ1eNEL

— Varad Mehta (@varadmehta) September 20, 2018

The argument is that the accusation is enough to disqualify him because he's a conservative. That's seriously what it is.

— Jeremy Senderowicz (@jsende) September 20, 2018

So basically no evidence beyond a reasonable doubt or Preponderance of the evidence with is essentially 51%. This should scare every male, and every female who has a male they love. https://t.co/Zf54W9V39Y

— GOP Pouncer (@Mellecon) September 20, 2018

If it can really be just enough to accuse AND the press supports it, then all that has to happen to enforce it is who is in charge of federal government. Chilling and Un-American. https://t.co/e49jGgPSor

— Just Brad (@bradcundiff) September 20, 2018

Chilling and un-American is right.

File under precedents they aren’t going to like in the future pic.twitter.com/eci613w1NR

— Stephen Miller (@redsteeze) September 20, 2018

What could go wrong?

— harrison bergeron (@harrisonberger0) September 20, 2018

We’ll leave you with this from Weekly Standard freelancer Jeryl Bier:

Footnote: @NYTimes identifies Kate Shaw as "Kate Shaw (@kateashaw1) is a professor at the Benjamin N. Cardozo School of Law and a director of the Floersheimer Center for Constitutional Democracy."

But in her Twitter bio: "Former Obama WH lawyer." Surprise! pic.twitter.com/duqesxK9NO

— Jeryl Bier (@JerylBier) September 20, 2018

Color us shocked.

Editor’s note: This post has been updated with additional tweets.

***

Update:

Oh, hey. Another shocker. Laurence Tribe loves Shaw’s take, too:

This is certainly true. Failing to become a Supreme Court Justice is nothing like being imprisoned as a felon. Trust me: I’ve never experienced the latter, but I’ve experienced the former and can report it’s not all that bad. https://t.co/KeZ6mXhry3

— Laurence Tribe (@tribelaw) September 20, 2018

Reminder: Tribe is a Harvard constitutional law professor. In case your kids are thinking about Harvard Law School.