News Release

Why the Rush on Kavanaugh? Why the “Presumption of Confirmation”?


MARJORIE COHN, marjorielegal at, @marjoriecohn
Cohn is professor emerita at Thomas Jefferson School of Law and just wrote the piece “Five Reasons Why the GOP Is Rushing to Confirm Kavanaugh” for Truthout, which goes through the upcoming Supreme Court docket. She said today: “Responding to pressure from Sen. Jeff Flake, a swing vote on Kavanaugh, the GOP-led Senate Judiciary Committee ordered a perfunctory FBI ‘investigation,’ which failed to interview several critical witnesses. Now Flake and Sen. Susan Collins, another swing vote, say the FBI report contains no corroboration of Dr. Blasey Ford’s claim. They are setting up political cover to vote for confirmation of Kavanaugh.”

Cohn said today that contrary to much rhetoric, including from Flake, “presumption of innocence only applies in criminal cases, not in a judicial confirmation proceeding.” See also CNN piece “What Exactly is Jeff Flake Looking for?” by Page Pate, which notes that “There is no such thing as a ‘presumption of confirmation.'”

Cohn’s past pieces include “Brett Kavanaugh is a Threat to Racial Justice and Voting Rights” and “Aggressive Kavanaugh Portrays Himself as Victim,” which states: “Kavanaugh’s outrage at being accused of sexual misconduct is hypocritical. And his contempt for Bill Clinton goes back at least two decades. During the 1998 investigation of Clinton for the Monica Lewinsky affair, Kavanaugh worked for independent counsel Kenneth Starr. At the time, Kavanaugh advocated asking Clinton explicit and detailed questions about oral sex, masturbation, vaginal stimulation and phone sex.”

She also wrote “Kavanaugh Scorns International Law and Loves Executive Power,” which states: “During the Bush administration [which Kavanugh worked for], the Supreme Court checked and balanced the executive branch in several war on terror cases. … If confirmed to the Supreme Court, Kavanaugh will almost certainly defer to the president’s wartime decisions during the perpetual war on terror. He will likely extend that deference to Donald Trump’s immigration policies under the guise of ‘national security.’ And Kavanaugh’s frightening theory will encourage the president to disobey any law he deems unconstitutional, including customary and treaty-based international law.”