Coyote Blog

David Bernstein has a great article on the abandonment by the ACLU of many of its traditional core principles.

Readers know I grew up a traditional Texas Conservative through high school, and then migrated to the libertarian-ish camp through college and beyond.  One of my early disconnects with the Conservatives was their demonization of the ACLU.  I didn't agree with everything the ACLU did (particularly related to economic regulation because then the group's quasi-Stalinist origins showed through), but I did think it did a lot of great work.  It was defending the Bill of Rights in unpopular cases with unsympathetic victims (e.g. Nazis and obvious criminals) in situations no one else would touch.  They were frequently a backstop against bad facts creating bad law.

Ironically, though, just as Conservatives really need the ACLU now they they are targets of things like speech and due process limitations, the ACLU is migrating away from defense of these things.

First, the ACLU ran an anti-Brett Kavanaugh video ad that relied entirely on something that no committed civil libertarian would countenance, guilt by association. And not just guilt by association, but guilt by association with individuals that Kavanaugh wasn't actually associated with in any way, except that they were all men who like Kavanaugh had been accused of serious sexual misconduct. The literal point of the ad is that Bill Clinton, Harvey Weinstein, and Bill Cosby were accused of sexual misconduct, they denied it but were actually guilty; therefore, Brett Kavanaugh, also having been accused of sexual misconduct, and also having denied it, is likely guilty too.

Can you imagine back in the 1950s the ACLU running an ad with the theme, "Earl Warren has been accused of being a Communist. He denies it. But Alger Hiss and and Julius Rosenberg were also accused of being Communists, they denied it, but they were lying. So Earl Warren is likely lying, too?"

Meanwhile, yesterday, the Department of Education released a proposed new Title IX regulation that provides for due process rights for accused students that had been prohibited by Obama-era guidance. Shockingly, even to those of us who have followed the ACLU's long, slow decline, the ACLU tweeted in reponse that the proposed regulation "promotes an unfair process, inappropriately favoring the accused." Even longtime ACLU critics are choking on the ACLU, of all organizations, claiming that due proess protections "inappropriately favor the accuse."

The ACLU had a clear choice between the identitarian politics of the feminist hard left, and retaining some semblance of its traditional commitment to fair process. It chose the former. And that along with the Kavanaugh ad signals the final end of the ACLU as we knew it. RIP.

Ten days ago, I told my wife that if Brett Kavanaugh is confirmed, he can probably thank Michael Avenatti and his client.  Julie Swetnick's accusations of mass gang rapes held week after week after week were so batsh*t crazy -- and completely unconfirmed by any witnesses when the behavior she described was so public and affected so many people that confirmation should have been easy -- that the Democrats' argument that women never lie and always should be believed was shown to be false to all reasonable observers.  It became too easy for Republicans to convince themselves that all of the women accusing Kavanaugh, not just Swetnick and the other last-minute copycats, were a put-up job by Democrats (a conclusion that was more easy to reach given DiFi's hamfisted attempt to be "tricky" and withhold the Ford accusations to the last minute).  In a well-reasoned world, the veracity of the Swetnick accusations should have had no bearing on the evaluation of Ford's believably, but in the real world of politics it had a huge effect.

I honestly believe that an earlier reveal of the Ford accusations early in the process, without all the nutty copycat allegations, could easily have resulted in Kavanaugh being withdrawn. First, it would have allowed Republicans and Kavanaugh himself to escape early in the process before so many chips were on the table.  Further, if we take Collins's speech at face value, her yes vote really resulted from the Swetnick accusations and I think she might easily have voted the other way with a different process.

A lot of people have come around to this point of view.  One is Robby Soave of Reason:

Democrats, the left, and various other anti-Kavanaugh persons can thank attorney Michael Avenatti for this outcome, at least in part.

The spotlight-stealing lawyer, who also represented Stormy Daniels, is responsible for drawing the media's attention to Julie Swetnick, an alleged victim of Kavanaugh who told an inconsistent and unpersuasive story. Swetnick's wild accusation provided cover for fence-sitting senators to overlook the more plausible allegation leveled by psychology professor Christine Blasey Ford, and to declare that Kavanaugh was being subjected to false smears.

Update:  Michael Avenatti has responded to such criticism on Twitter by saying, essentially, "what was I supposed to do, just ignore the needs of my client?"  No.  What he should have done is honestly thought about the needs of his client rather than just his need for self-promotion ahead of the Democratic primaries.  It is very much a part of a lawyer's job to confirm his client's story and evaluate whether he thinks they have a good case, and then to counsel them on whether or not it makes sense for them given the cost in dollars and public harassment to try to bring the case.  I have had a batsh*t crazy woman who was an ex-employee (who I have never met face to face) decide that I was doing all sorts of crazy things like running an Al Quaeda training camp, organizing a narcotics ring, and stalking her across every Indian casino in the state.  The poor woman has mental health issues and imagines all kinds of weird stuff, and I can be sympathetic now that she is no longer actively threatening me and I don't have to maintain protective orders against her.  At the time she took her crazed stories to any number of lawyers trying to mount a case against me on all kinds of odd bases, and you know what - no lawyer took the case, because pursuing this sort of madness in the legal system would not have done anyone, especially this woman, any good at all.