If Amy Coney Barrett is nominated to fill the Supreme Court seat vacated by the late Justice Ruth Bader Ginsburg, will the federal appellate judge be forced to comply with the Avenatti rule? Affirmed by Senate Democrats in 2018, the procedure mandates a delay in the confirmation process whenever a highly qualified Trump nominee is subjected to evidence-free accusations of criminality by a disreputable lawyer.
Judge Barrett seems to be among the leading candidates to become eligible for the treatment. The Journal’s Andrew Duehren reports:
On Saturday, Mr. Trump is expected to announce a woman to succeed Justice Ginsburg, with U.S. Appeals Court Judge Amy Coney Barrett of the Seventh Circuit in Chicago seen as a leading contender. Judge
of the 11th Circuit in Atlanta is also under consideration, as are several other women, according to a Republican close to the process.
If recent history is any guide, Democrats on the Senate Judiciary Committee as well as cable networks like CNN will afford great deference to Michael Avenatti’s legal analysis and his review of a nominee’s fitness to serve on the nation’s highest court.
On September 26, 2018, after Avenatti promoted unbelievable claims that Brett Kavanaugh had participated in a criminal organization that planned and executed a series of gang rapes, every single Democrat on the Senate Judiciary Committee signed a letter demanding a delay in the committee vote on then-Judge Kavanaugh’s Supreme Court nomination.
“In light of shocking new allegations,” the committee Democrats wrote, “It would be an unprecedented abuse of power and abdication of our constitutional responsibilities to move forward with this nomination given the concerns about Brett Kavanaugh’s character and actions. We ask that you immediately request an FBI investigation or support the withdrawal of this nominee, but at a minimum the vote that has been scheduled for Friday must be canceled.”
One of the reasons that Judge Kavanaugh soon became Justice Kavanaugh is that the bogus Avenatti allegations were quickly exposed as groundless.
This time around, will committee Democrats again unanimously credit unfounded allegations of violent criminality against a Trump nominee? In seeking to faithfully apply their Avenatti rule, committee Democrats may need to find another brilliant legal mind to direct their inquiries. That goes as well for television news programs, which hosted the lawyer more than 250 times in the span of 12 months. Circumstances suggest that both Senate Democrats and TV bookers may now be looking for new sources of jurisprudential analysis.
In January ABC News reported:
Attorney Michael Avenatti was abruptly taken into federal custody in Los Angeles Tuesday evening, following a day-long disciplinary hearing in which the California State Bar is asking a judge to prevent Avenatti from practicing law based upon their belief he poses a “threat of substantial harm to the public” if he continues to perform legal work.
February brought more bad news, as noted by Reuters:
A U.S. jury on Friday found Michael Avenatti guilty in a criminal trial accusing the celebrity lawyer of trying to extort
out of millions of dollars and defraud a youth basketball coach he represented.
In July the Washington Post reported:
Michael Avenatti is unable to pay his attorney ahead of his second criminal trial in federal court in Manhattan and has asked for representation by the public defender’s office, also citing a conflict with his current counsel…
Avenatti’s next trial is set to start in October, though it is likely to be rescheduled. In the upcoming proceeding, he will face charges that he cheated the adult-film actress Stormy Daniels in dealings over a book contract. Prosecutors said Avenatti paid his own debts and expenses with stolen money…
In August Law.com noted the delay that Covid-19 is causing in the trial schedule and also referenced another legal challenge for the lawyer so admired by Senate Democrats:
Avenatti is also currently scheduled to stand trial in a sprawling fraud case in Los Angeles federal court in December, though that district announced Thursday that no criminal jury trials would be held there “until further notice.”
…The California case accuses him of 36 counts of tax evasion, fraud and other crimes in allegedly stealing million of dollars from former clients.
Like all Americans, Avenatti deserves the presumption of innocence, except of course for the crimes of which he’s already been convicted.
As for Senate Democrats, here’s hoping this tale will inspire them to consider allowing fair due process, even for highly qualified Trump nominees.
It’s hard to be optimistic. At least until someone is willing to come forward with a dishonest and vicious claim against the next Trump nominee, Democrats on the Senate Judiciary Committee will have to wait to apply their Avenatti standard in the upcoming proceedings. In the meantime, Senate Democrats are debating whether they can attack Judge Barrett’s religious beliefs without coming off as soulless bigots. CNN’s Manu Raju reports on the lessons from Ms. Coney Barrett’s elevation to the appellate court:
In a tense exchange between Amy Coney Barrett and
Sen. Dianne Feinstein
in 2017, the California Democrat sharply questioned whether the judicial nominee could separate her Catholic views from her legal opinions.
“The conclusion one draws is that the dogma lives loudly within you,” Feinstein pointedly said. “And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.” …Now Barrett appears to be the front-runner for Trump’s Supreme Court nominee. And Democrats are beginning to discuss how to avoid such pitfalls when they face off against the President’s nominee in confirmation hearings as soon as next month…
A good way to avoid pitfalls would be to conduct a reasonable and substantive evaluation of a nominee’s qualifications, rather than seeking to apply the Avenatti test or the Feinstein test.
Mr. Freeman is the co-author of “The Cost: Trump, China and American Revival.”
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Mr. Freeman is also the co-author of “Borrowed Time.”
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