Elena Kagan won't talk about the Kavanaugh controversy, but she will talk about how the Court functions with only 8 Justices.

Kagan was speaking at UCLA law school on Thursday night, and she spoke with experience about the problem of an 8-Justice Court's vulnerability to 4-4 splits, since that is the situation her Court confronted for the year that passed between the death of Antonin Scalia and the swearing-in of Neil Gorsuch.

"None of us wanted to look as if the court couldn’t do its job," she said. "I think we all felt as though the country needed to feel that the court was a functioning institution no matter what was happening outside."...

She said justices engaged in lengthier discussions at the time and even worked on finding agreement on smaller points when they couldn’t settle the larger issues at stake.... Even with a full court, Kagan said consensus-building, “especially perhaps in a time of acrimony and partisanship in the country at large, makes a lot of sense.”

“The court’s strength as an institution in American governance depends on people believe in it having a certain legitimacy ... that it is not simply an extension of politics,” she said.

I read that to mean that it's more important to sustain belief in a myth than to see the actual truth. The myth is that the Supreme Court is "not simply an extension of politics." I note that she phrases the myth at a more easily credible level than what some people would like us to believe — such as the Court is completely above all politics. That is, after all, the myth that prevails at confirmation hearings, where the nominees all say that they will do nothing but decide cases according to the law and no political leanings will come into play and distort their entirely legal reasoning. Kagan only says that the Court decides cases in a way that is "not simply an extension of politics."

Not "simply," but how about complexly? Not merely "an extension" of the politics, but isn't it, as it operates independently, doing something that a sophisticated person will understand to be political?

It's strange to be talking about the importance of useful beliefs over truth in the context of the controversy Kagan ostensibly seeks to avoid. What are the other institutions whose strength depends on our believing that they have a certain legitimacy?

The Senate. Should we believe in its legitimacy to keep it strong? That's not the Kagan idea. To transplant her idea to the Senate: The Senate itself should do what it can to inspire our belief it is performing its advise-and-consent role grounded in good procedure and principle. It is struggling to do that, and the struggle is much easier to see than the inner workings of the Supreme Court.

The patriarchy. Is it good for us to believe that it is legitimate? Just calling it — what is it?! — "the patriarchy" makes it sound illegitimate. I bet you — some of you — want to say it doesn't even exist. But if it does exist in America, it wants us to believe in it as something with a different name — perhaps meritocracy or individual choice. Believe in that, and you'll keep it strong.

The #MeToo movement. Its strength as an institution depends on people believing in it as having quite a lot of legitimacy. It's fragile. Overuse it and it will collapse. Won't it? If not, we should be afraid of its strength. But unlike the Supreme Court, it's not a small group of people who can consult and reach consensus about how far to extend its power and how to perform its power in public. There are millions of people who can tap the power of the movement. There's the relatively careful release of the Christine Blasey Ford allegations, and there's the follow on enthusiasm of Michael Avenatti and who knows who might suddenly speak up on social media?

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Julie Swetnick "said she witnessed Judge Kavanaugh... lining up outside a bedroom where 'numerous boys' were 'waiting for their "turn" with a girl inside the room.'"

"Ms. Swetnick said she was raped at one of the parties, and she believed she had been drugged. None of Ms. Swetnick’s claims could be independently corroborated by The New York Times, and her lawyer, Michael Avenatti, declined to make her available for an interview.... Unlike two other women who have accused Judge Kavanaugh of sexual misconduct, one who went to college with him and another who went to a sister high school, Ms. Swetnick offered no explanation in her statement of how she came to attend the same parties, nor did she identify other people who could verify her account.... In her statement, Ms. Swetnick said that she met Judge Kavanaugh and Mr. Judge in 1980 or 1981 when she was introduced to them at a house party in the Washington are... She said she attended at least 10 house parties in the Washington area from 1981 to 1983 where the two were present. She said the parties were common, taking place almost every weekend during the school year. She said she observed Judge Kavanaugh drinking 'excessively' at many of the parties and engaging in 'abusive and physically aggressive behavior toward girls, including pressing girls against him without their consent, "grinding" against girls, and attempting to remove or shift girls’ clothing to expose private body parts. I also witnessed Brett Kavanaugh behave as a "mean drunk" on many occasions at these parties.'"

The NYT reports today.

If the allegations are true, there must be many, many other witnesses. Where have they been all these weeks? And why would she go to "at least 10 house parties" if they were as she described?

The NYT suggests there's a gap in the account because Swetnick doesn't say how she got to go to the same parties as Kavanaugh. We're told Swetnick grew up in Montgomery County, Md., and graduated from Gaithersburg High School — a public school — in 1980 and attended the University of Maryland. That puts her in a less elite crowd. She's also 2 years older than Kavanaugh and graduated from high school 3 years before he did, so it makes it a little hard to picture them at the same parties. Did older, state-college women go to parties with prep school boys years younger than them? If they did and the boys raped them, repeatedly and systematically, how could the boys get away with it, and why are there not many more women coming forward with the same allegations? And why are we getting this through Michael Avenatti?

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"These are smears, pure and simple. And they debase our public discourse ... But they are also a threat to any man or woman who wishes to serve our country."

"Such grotesque and obvious character assassination — if allowed to succeed — will dissuade competent and good people of all political persuasions from service. I will not be intimidated into withdrawing from this process. The coordinated effort to destroy my good name will not drive me out. The vile threats of violence against my family will not drive me out. The last-minute character assassination will not succeed."

Writes Brett Kavanaugh, quoted in the NYT. Also in the Times article is this undermining of the New Yorker's publication of a new allegation from a former Yale classmate named Deborah Ramirez:

The New York Times had interviewed several dozen people over the past week in an attempt to corroborate Ms. Ramirez’s story, and could find no one with firsthand knowledge. Ms. Ramirez herself contacted former Yale classmates asking if they recalled the episode and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself. The New Yorker strongly stood by its article.

The NYT also refers to Michael Avenatti's "additional salacious allegations on Twitter," and characterizes Republicans as "caught between the growing anger of many female voters over the Kavanaugh allegations and the demands of core conservative voters infuriated by what they see as a Democratic plot."

The new allegations — from Avenatti and The New Yorker — are, I think, helping Kavanaugh's case. The NYT seems to realize this.

I read between the lines that NYT would not itself have published the Ramirez allegations. It had the story and tried unsuccessfully to corroborate it. And it won't even repeat the "salacious" allegations Avenatti dumped on Twitter. After all the careful work creating credence and empathy for Christine Blasey Ford, we now have an onslaught, a piling on, and it's making Kavanaugh into a sort of hero, who must stand his ground. It's no longer just about the fulfillment of his own aspirations to power and prestige and his own good name. He's now the champion of everyone in the future who — if he fails — will reject the call to public service.

ADDED: A preview of Kavanaugh on FOX News at 7 Eastern:

"I'm not going to let false accusations drive us out of this process." —Brett Kavanaugh

Watch @MarthaMacCallum's full interview with Judge Kavanaugh and his wife Ashley tonight on Fox News Channel at 7p ET. https://t.co/QFmLfIwW4R pic.twitter.com/r8J2TUYQDj

— Fox News (@FoxNews) September 24, 2018

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"I'm a sentimental sap, that's all/What's the use of trying not to fall?/I have no will, you've made your kill/'Cause you took advantage of me!"

That's a 1928 song with lyrics by Lorenz Hart.

I'm thinking about it this morning after reading the questions Michael Avenatti proposed that the Senate Judiciary Committee ask Brett Kavanaugh: "Did you ever witness a line of men outside a bedroom at any house party where you understood a woman was in the bedroom being raped or taken advantage of?” and whether "he ever tried to prevent men from raping or taking advantage of women at any house party." I called "taken advantage of" a "strange locution." You're inquiring about rape, but you're lumping it together with sex where there's "taking advantage."

I'm so hot and bothered that I don't know
My elbow from my ear...

Or — to read Ronan Farrow in The New Yorker — you're so drunk you don't know a plastic penis from a fleshly one.

Here I am with all my bridges burned
Just a babe in arms where you're concerned
So lock the doors and call me yours
'Cause you took advantage of me

The Wikipedia article about the song says it "can be sung by either gender, but has traditionally been sung by women." Here. Check out the feeling when a man sings it (and here's my 2005 post "Songs transformed with the sex of the singer"):



I have no will, you've made your kill...

What's the use of Brett Kavanaugh trying not to fall?

I'm just like an apple on a bough/And you're gonna shake me down somehow...

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With the devious use of the disjunctive "or," Michael Avenatti raises a cloud of "gang rape" suspicion around Brett Kavanaugh.

I'm reading the shockingly titled Daily News article "Brett Kavanaugh and pals accused of gang rapes in high school, says lawyer Michael Avenatti."

“We are aware of significant evidence of multiple house parties in the Washington, D.C. area during the early 1980s during which Brett Kavanaugh, Mark Judge and others would participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them,” Avenatti said in an email to Mike Davis, chief counsel for nominations for the Senate Judiciary Committee.

Gang rape??!!!

Yes, Avenatti wrote "gang rape" in his email to the Committee. And not just one gang rape — multiple gang rapes. What is the sudden, breakout hysteria?!

Avenatti did not disclose any details or identities of his witnesses.

All eyes on Avenatti. What a trickster this man is! Let's look at what he dropped on the public last night, just as we were hearing the weird new allegation that came out in The New Yorker. We'd barely had the chance to begin to process the story of a Yale college woman who, while seemingly too drunk to be sure if she was looking at a real penis or a fake one, saw Brett Kavanaugh pulling up his pants and heard — as she remembers it — somebody say his name. And then along came Avenatti to waggle his teaser at us. Boldface added:

Avenatti hinted at the nature of his allegations when he suggested to the Senate Judiciary Committee a series of questions to ask Kavanaugh.

One of his questions: “Did you ever target one or more women for sex or rape at a house party? Did you ever assist Mark Judge or others in doing so?”

Also, Avenatti suggested asking Kavanaugh: “Did you ever attend any house party during which a woman was gang raped or used for sex by multiple men?”

And: “Did you ever witness a line of men outside a bedroom at any house party where you understood a woman was in the bedroom being raped or taken advantage of?”

Avenatti also said Kavanaugh should be asked if he ever tried to prevent men from raping or taking advantage of women at any house party....

Are those the questions Avenatti used when collecting his witnesses — with "rape" never asked about independently from "sex" (or the strange locution "taken advantage of")?

Should Kavanaugh opponents welcome Avenatti's entrance onto this scene? I hear in him the echoes of a longstanding fight against fraternities and the accusation that they are a conspiracy of rapists. We got deeply into this issue back when Rolling Stone published its piece on the University of Virginia which turned out into a fiasco for those who sprung at an opportunity to describe a specific incident to stand in for all the bad behavior they wanted to alarm us about. Here we go again. I assume — but what do I know? — that there is horrible sex going on in the context of college drinking parties. I assume a lot of young women and men get hurt. They are used for sex and taken advantage of and — especially if you broadly define the word — raped.

You could cast aspersions on every man who ever belonged to a fraternity that held drinking parties. But should that serious problem be suddenly dumped on Brett Kavanaugh?

What Avenatti is doing resonates with something I wrote on September 18th: "The question that can destroy Brett Kavanaugh: Have you ever been so drunk you could not remember what happened?"

College happened. There is a drinking culture. It's tied to cheap, drunken sex. Can Kavanaugh assure us that he was never anywhere close to that?

Are you and everyone you care about free of the fraternity gang rape stink? If Kavanaugh falls, are you ready for the fall of every man who had drunken sex in college?

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