The burden of proof for Brett Kavanaugh
Obligation not to elevate a clouded nominee to the US Supreme Court must coexist with an obligation to hear out any serious explanation of facts
Conservatives in the United States are supporting Brett Kavanaugh’s nomination to the Supreme Court because they hope he will overturn Roe vs Wade (landmark ruling by the US Supreme Court on the issue of constitutionality of laws that criminalised access to abortions in 1973) should be willing to encourage his withdrawal if his accuser testifies credibly against him and the cloud over his nomination can’t be expeditiously cleared up.
Even if Kavanaugh is innocent of the charge of a teenage sexual assault, to give such prominence and power to a man credibly accused would both leave an unnecessary taint on his future rulings and alienate social conservatives from the persuadable Americans, women especially, whose support any pro-life programme ultimately requires.
This argument is not well-received among many of my conservative friends. So I spent the week having private arguments about whether it was really fair to ask a public servant to withdraw in a kind of tacit shame, for some greater ideological good, on the basis of a single unprovable allegation — and whether that kind of standard would inevitably lead to lessprovable allegations against more probably-innocent figures down the road — and how you could expect any decent person to put themselves forward for high office in the climate such a precedent would create.
The strongest point that Kavanaugh’s defenders made to me was that, contrary to the claim that there is no punishment involved in being denied a Supreme Court seat, his withdrawal under the shadow of Christine Blasey Ford’s allegation would be regarded by much of the country as an admission of guilt — an admission he was once a would-be rapist and is a perjurer today.
So to pull him back wouldn’t just be like denying someone an important job after an unsuccessful interview; it would emblazon a scarlet “R” on a man who might well not deserve it. And that, my friends argued, would be a grave wrong no matter what it might gain politically and culturally for his conservatives further down the road.
These arguments would be convincing, I think, if Kavanaugh were up for a lower court appointment, or running for a Senate seat. But the sheer abnormality of the Supreme Court — lifetime tenure, philosopher-king power — makes the prospect of a reputationally-clouded justice more damaging, to the court itself and the country and the causes that the justice might advance, than would be the case with a lesser office. And so the potentially deep injustice to Kavanaugh still doesn’t seem like enough of a reason to let him ascend if he cannot clear his name.
If you take that view, however, you need to acknowledge the burden that this will place on the nominee this week when Ford appears before the Senate. Ben Wittes put it well for the Atlantic: “He needs to prove a negative about events long ago with sufficient persuasiveness that a reasonable person will regard his service as untainted by the allegations against him, and he needs to do so using only arguments that don’t themselves taint him.”
Longtime player
However, what counts as a tainting argument?
This question was sharpened when Ed Whelan, the president of the Ethics and Public Policy Center and a longtime player in conservative judicial politics, tweeted out the outline of a theory that Kavanaugh’s accuser might be misremembering the identity of her assailant — an outline that rashly and recklessly included the name of the Georgetown Prep classmate whom Whelan suggested might be the nominee’s doppelganger, a possibility that Ford immediately denied.
Whelan rightfully apologised for this, and was rightfully attacked for his potential libel. But some of his critics have used this foray to argue or imply that any attempt to raise questions about Ford’s memory, any attempt to put forward an alternative narrative that might point to a different situation or a different perpetrator, should be regarded as the lowest and wickedest and most embarrassing of plots.
But if Kavanaugh is actually innocent, there are really only two alternatives: Either Ford is a brazen liar, or some scenario of clouded or mistaken memory must be true.
So to treat any version of the latter defence as simple confirmation of the nominee’s villainy is to close even the narrow door that Wittes (and I) would leave open for Kavanaugh’s potential exculpation. If you are being asked to prove a negative, you cannot be denied the opportunity to explain what you think that negative might look like.
That is the charity that Kavanaugh deserves, given the burden of proof being laid upon him. If his accuser testifies credibly and all he has to offer are vehement denials, followed by a rushed Republican attempt at confirmation, then he may be innocent, but his nomination will deserve to fail. But an obligation not to elevate a clouded nominee must coexist with an obligation to hear out any serious alternative explanation of the facts.