The outside prosecutor Rachel Mitchell opines that the evidence would not justify bringing criminal charges and does not even meet a preponderance-of-the-evidence standard.

According to the 5-page memo she sent to the Judiciary Committee Republicans, which WaPo got its hands on. The basis of the opinion is what a lot of Kavanaugh proponents have observed:

In the memo, Mitchell argued that Ford has not offered a consistent account of the alleged assault, including when exactly it occurred. Mitchell also noted that Ford did not identify Kavanaugh by name as her attacker in key pieces of evidence, including notes from sessions with her therapist — records that Ford’s lawyers declined to provide to the Senate Judiciary Committee....

[I]n the memo, Mitchell also argued that Ford “has no memory of key details of the night in question — details that could help corroborate her account,” nor has Ford given a consistent account of the alleged assault. Noting that Ford did not remember in what house the incident allegedly occurred, or how she left the gathering and got back home, Mitchell said “her inability to remember this detail raises significant questions.”

Mitchell also stressed that nobody who Ford has identified as having attended the gathering — including Mark Judge, Patrick Smyth and Leland (Ingham) Keyser — has been able to directly corroborate Ford’s allegations....

Mitchell notes that "There is no clear standard of proof for allegations made during the Senate’s confirmation process," but she is a prosecutor and she can only give an opinion from her point of view, from "the legal world, not the political world."

It is, of course, only her legal opinion, not The Legal Opinion in some grand sense, and she was chosen by the Republican Senators, who have their political goals and needs, even if she has none. And, really, we can't know if what she calls a legal opinion is really just that. She could be lying or unwittingly swayed by political or personal beliefs. We never know whether purported legal minds are really operating in some purely legal way (if such a thing is even possible).

The nominee, in the initial phase of the hearings, performed the usual theater of presenting himself as a judge who does nothing but decide cases according to the law. We in the audience of that theater may not really believe all that but think it's nevertheless close enough to get by, and it's only what every other nominee does, so we must suspend disbelief if we're going to have judges at all.

But when we see ourselves in this predicament, what can we do when we don't like the way the nominee leans? We could just accept the power of the President to make a nomination and demand that the Senate confirm as long as the nominee performs well in the usual theater of acting like a proper judge. The President won the election after all. That's a fact. But why defer there unless it's what you already want to do? Those who don't want a staunch conservative in the swing-vote-Kennedy seat want to resist. Trump didn't legitimately win, they might say — or: Obama didn't get deference when the Scalia seat opened up during his term.

Here's another thing that can be done when we don't like the leaning of a presidential nominee who adequately performs the Neutral Judge act in the initial political theater: Bring in something unrelated to his judicial work, something that makes him unacceptable, and allegations about something that happened in private long ago could do the trick.

But how good do these allegations need to be before they work? Rachel Mitchell can only say she has no idea. And if we are honest, shouldn't we admit that we're all drawn to the standard that gets us to the result we wanted before we ever heard about Christine Blasey Ford? I'd say no. There is one other factor: The short- and long-term interests of the 2 political parties. Republicans may fear that backing Kavanaugh now will hurt them. They might ruthlessly cut loose the damaged goods. Similarly, Democrats may see that voting Kavanaugh down will mollify their voters and energize conservatives in the midterm elections.

Maybe everyone's hoping that the FBI investigation will produce some very clear indications that Christine Blasey Ford is either lying or mistaken and the intensity of the partisan energy will dissipate. I don't think the FBI will save them. All the Senators have is one more week to worry about how to extricate themselves from this horrible trap they're caught in.

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"When public life means the ransacking of people’s private lives even when they were in high school, we are circling a deeply illiberal drain."

Writes Andrew Sullivan in "Everyone Lost at the Ford-Kavanaugh Hearings" (New York Magazine).

A civilized society observes a distinction between public and private, and this distinction is integral to individual freedom. Such a distinction was anathema in old-school monarchies when the king could arbitrarily arrest, jail, or execute you at will, for private behavior or thoughts...The Iranian and Saudi governments — like the early modern monarchies — seek not only to control your body, but also to look into your soul. They know that everyone has a dark side, and this dark side can be exposed in order to destroy people....

The Founders... carved out a private space that was sacrosanct and a public space which insisted on a strict presumption of innocence, until a speedy and fair trial. Whether you were a good husband or son or wife or daughter, whether you had a temper, or could be cruel, or had various sexual fantasies, whether you were a believer, or a sinner: this kind of thing was rendered off-limits in the public world....

[In totalitarian societies], the private is always emphatically public, everything is political, and ideology trumps love, family, friendship or any refuge from the glare of the party and its public. Spies are everywhere, monitoring the slightest of offenses. Friends betray you, as do lovers. Family members denounce their own mothers and fathers and siblings and sons and daughters. The cause, which is usually a permanently revolutionary one, always matters more than any individual’s possible innocence. You are, in fact, always guilty before being proven innocent. You always have to prove a negative. And no offense at any point in your life is ever forgotten or off the table.

On the subject of family members denouncing each other, remember that ad we were just talking about, with 6 siblings telling people not to vote for their brother. "I couldn't be quiet any longer," one sister said with emotive intensity. I predict that the day is coming when a Supreme Court nominee's own children come forward and report random sexist microaggressions heard over the dinner table.

I remember long ago when I was a young law professor sitting next to a federal judge who wanted to tell me how to become a federal judge. (Weirdly, the Judge was Alex Kozinski.) I told him I didn't want to be a judge, because it's better to be a law professor: You have more freedom of speech and behavior — freedom to be an individual. You don't have to continually present yourself as sober and conventional for years and years and years. Who wants to live like that? But now, a quarter century later, the standard of how constrained you need to be is unfathomably strict. Who will be left to aspire to such a cold, lifeless prize? And we, the people, are the losers, because these Justices of the Future will have little to do with the rest of us fallible humans. How will they understand what is at stake?! Why would they value freedom of speech, when they let theirs go when they were 10?

I'm reminded of President Nixon's nomination of G. Harrold Carswell. There were a few reasons why this was a bad nomination, but what was so memorable about it was one Senator's effort to defend him against the charge that he was "mediocre":

Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos.

We don't need a mediocrity on the Court, of course. We don't want the representation of mediocrity, but we do want flesh and blood people, not nine abstemious, over-careful, controlled strivers who've excluded all daring and fun from their lives going back to the age of 10.

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