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The Brett Kavanaugh Allegations: What is fair and what is not

September 16, 2018

During the Brett Kavanaugh confirmation hearings, I experienced some frustration resulting from a self-imposed rule against posting my reactions. Although I have opinions, I chose to prioritize ensuring an open classroom environment in my constitutional law course given that my students potentially will hold divergent views respecting the cases and doctrines that have sometimes been the focus of hearings. This post does not abandon that commitment. But the woman who privately accused Kavanaugh of attempted sexual assault while she and Mr. Kavanaugh were in high school has now come forward. Christine Blasey Ford, a Professor of Psychology at Palo Alto University in California, has provided greater detail, following her earlier private correspondence to, among others, Senator Diane Feinstein (D. CA). Ms. Feinstein forwarded the earlier details to federal authorities, while retaining Dr. Blasey’s confidentiality. Based on what Senator Feinstein was able to confirm, she elected not to engage Mr. Kavanaugh in that line of questioning. 

 

Today’s development is apt to be a political lightning rod. Sides are already forming with news only a couple of hours old. Because this raises legal questions, unrelated to any personal impressions of the Kavanaugh candidacy, I feel it appropriate to weigh in on what, in my view, is fair and what is not. Here is my bottom line: It is not fair to presume guilt based on an allegation, but it is entirely fair to insist upon delaying the confirmation vote and reopening the hearings. It is also fair for individual members of the Senate Judiciary Committee, or the Senate as a whole, to vote against the nomination based upon individual assessments as to which version of the events is more likely to be true than not true. 

 

What I have just articulated—more likely than not—is not the legal standard by which Kavanaugh would be judged if the allegations were presented in a criminal case. Indeed, that is the point. Even before this newer development, some commentators had spoken about how the unsubstantiated allegations were unfair to Mr. Kavanaugh. With respect, I believe that framing is misleading. Mr. Kavanaugh has no “right” to a Supreme Court seat, and for that matter, as the Merrick Garland nomination demonstrates, he had no right to a confirmation hearing. The hearing is intended to serve the interests of the public, not those of the nominee or even of the President. Separation of powers and checks and balances are designed to benefit the citizenry against the potential abuses of federal governmental powers. The resulting set of processes, from nomination to committee hearing to floor vote are political, not legal. As of now, those processes remain incomplete. The nominee is not entitled to any formal process beyond the political process the Senate chooses to provide as a consequence of its power of advice and consent. And because those processes are political, not legal, phrases such as a “presumption of innocence” or “beyond a reasonable doubt” are misplaced. A member of the Senate Judiciary Committee, for example, who might previously have been inclined to vote in favor of confirmation is entirely within her rights to vote the other way should she come to believe that the allegations are more likely true than not true, even without anything resembling a criminal trial that would establish proof beyond a reasonable doubt. In fact, she could vote against confirmation based even on the lower standard that, based on what she has seen or read, there is an unacceptable risk that the allegations might be true.

 

Some are questioning the timing. Senator Diane Feinstein was placed in a very difficult position. She had a letter, since July, coupled with a demand to keep the writer’s identity a secret. She elected to avoid questioning Mr. Kavanaugh on that basis, having referred the matter federal investigative authorities, hoping, perhaps, that she might acquire corroborating or discrediting information that would better guide her as to how to proceed. It appears that nothing was forthcoming. Although Ms. Feinstein undoubtedly frustrated some Democrats by declining to question Judge Kavanaugh in light of these allegations, she behaved professionally. And the idea floating among some conservatives that Feinstein withheld this to play it out at the eleventh hour seems indefensible. Ms. Feinstein is not responsible for the sudden break of information, which Dr. Blasey has now explained. Investigative reporters were already closing in on her identity, and since it increasingly appeared that the disclosure was forthcoming, against her wishes, she finally elected to take control and to ensure the accuracy of her personal account. This does not seem the makings of a partisan plot for the simple reason that it’s too ill-conceived.

 

From the #metoo movement (if we hadn’t already been aware), we know that women subject to such traumatic events often fail to make them public, sometimes keeping them secret for years or decades, as might be the case here. But Dr. Blasey had spoken with a therapist and with her husband back in 2012, conveying some critical details. Some of those details appear to align with what is independently emerging. The other alleged party to this claimed incident, Mr. Marc Judge, a filmmaker, has a documented history of alcohol abuse dating to high school. In his written personal account, titled “Wasted: Tales of a Gen-X Drunk,” Mr. Judge describes a high school companion, “Bart O’Kavanaugh,” whose own conduct reveals drinking alcohol to excess and having “puked in someone’s car the other night” and “passed out on his way back from a party.” None of that, of course, proves that Dr. Blasey’s allegations are true, and we also do not know if Bart O’Kavanaugh is a stand-in for the present Supreme Court nominee. But this does suggest that Dr. Blasey’s account is unlikely to have been suddenly constructed with the partisan goal of derailing a Supreme Court candidacy. 

 

Those who are inclined to discredit Mr. Kavanaugh’s accuser will focus on her lack of specific recollection as to some key details: the precise home at which the party took place, how she got there or home, and the like. Detractors might also dismiss the polygraph, which is non-admissible in court, as a ploy. I am not expert in memory, but I do have the life experience of a middle-aged man. After decades pass, details fade. I imagine, although I lack the training to assert this with certainty, that following a particularly traumatic event, some details are more likely to assume prominence in memory than others. 

 

Mr. Kavanaugh has yet to respond to these new details. He should be given a full and fair opportunity to do so. The initial response by Mr. Judge was surprisingly weak; he claimed no recollection, but failed to issue a vehement denial, as did Judge Kavanaugh, until later. The history of alcoholism might explain Mr. Judge’s initial response, but to the extent that’s true, it only places greater importance on Mr. Kavanaugh’s answers. Did he know this woman while in high schoool? Was he at a party with her and with Mr. Judge? And were there others present who might share their recollections? The letter by 65 women who knew Mr. Kavanaugh in high school and who have attested to his character is beside the point. We need answers from Mr. Kavanaugh on this specific set of allegations if this confirmation is to proceed. Or at least we should if the process, which many commentators have claimed is defective on other grounds, has integrity.

 

Finally, I’ve heard some say that even if true, an event from high school is insufficient to derail this candidacy. With respect, I could not disagree more. If these allegations are true, Judge Kavanaugh lied about them with the goal of securing a seat on the Supreme Court. And if so, those lies are in the present, not in high school. Moreover, and perhaps more importantly, if the allegations are true, there is nothing unfair about declining to confirm a Supreme Court nominee based on such serious conduct, even if it took place in high school. Dr. Blasey is alleging that the perpetrator was a sexual predator. If true, this is unquestionably serious enough be disqualifying. Again, none of this is to suggest that the allegations are true. 

 

No one has a right to a seat on the nation’s highest court. I do not know if Judge Kavanaugh did what is alleged. I truly hope he did not. Whatever one thinks of his judicial philosophy, he has, until now, had a long and distinguished career. I personally know and respect people who themselves know and admire Judge Kavanaugh. And yet, if the nominee did what is alleged, my own view is that it is disqualifying for service on the bench. I’d like to hope we can all agree on that. At a minimum, I think all should agree that these allegations are serious enough to demand reopening the hearings. Mr. Kavanaugh has every right to respond. At this point the ball is in his court.

 

I welcome your comments.

 

 

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