Kavanaugh Bears the Burden of Proof

The question isn’t whether he can win confirmation—it’s whether he can defend against the charge he faces in a manner that is both persuasive and honorable.

Joshua Roberts / Reuters

The manner in which Senate Republicans and Brett Kavanaugh’s supposed allies are championing the judge’s innocence should sting as the ultimate humiliation. They apparently don’t have sufficient confidence in the nominee to let a routine investigation take place before holding a hearing. They apparently don’t believe in him enough to make minor accommodations on the date of a hearing to a woman who is receiving death threats. They are publicly floating theories naming an alternative perpetrator—and then removing them and apologizing after those theories are picked up by Fox & Friends. Having held up Merrick Garland’s nomination for the better part of a year to get past one election, they are apparently so fearful of further erosion of support for their nominee that they feel the need to rush this matter to a vote just weeks before another one. In the era of #MeToo, their actions bespeak the fear of et tu. Their solution is haste—and not the sort of haste that suggests faith. It is the sort of haste that that has one eye on the midterms and the other eye cast downward.

I have known Brett Kavanaugh for a long time—in many different contexts. I am fond of him personally. I think the world of him intellectually. I don’t believe he lied in his Senate testimony. I don’t believe he’s itching to get on the Supreme Court to protect Donald Trump from Robert Mueller. I’m much less afraid of conservative judges than are many of my liberal friends. As recently as a few days ago, I was cheerfully vouching for Kavanaugh’s character.

That said, the allegation against him is, at least so far as one can tell from the press reports, credible, and it deserves to be taken seriously.

If Kavanaugh were to ask my advice today—and to be clear, he hasn’t done so—I would tell him he almost certainly should have his nomination withdrawn. The circumstances in which he should fight this out are, in my view, extremely limited. I would advise him against letting Senate Republicans ram his nomination through in a fashion that will forever attach an asterisk to his service on the Supreme Court. Assuming she is not impugning him maliciously, Kavanaugh’s accuser, Christine Blasey Ford, deserves better than that. The Court deserves better than that. And Kavanaugh himself, if he is telling the truth about his conduct in high school, deserves better than to be confirmed under circumstances which tens of millions of people will regard, with good reason, as tainted.

Let’s start with a blunt reality: The sum of the allegations against Kavanaugh is, if true, disqualifying. On both left and right, commentators have suggested that the assault allegation alone is not grounds for Kavanaugh’s rejection—even if true. Let’s leave for another day the question of whether that’s right. The allegation does not present on its own. Kavanaugh has categorically denied the incident took place. That means that if it did take place, he is either lying about it now or, short of that, perhaps has no memory of the matter. The former is certainly disqualifying. The latter, even if Kavanaugh’s memory is genuinely and honestly impaired and he actually believes the incident never took place, cannot be distinguished publicly from the former. Though Kavanaugh has been careful not to slime Ford, his denial of the incident impugns her anyway, which is legitimate if his denial is accurate. It will not do, however, to impeach her credibility wrongly and then ask for confirmation to the highest court in the land because the false denial was not intentionally false. If the allegations are true, Kavanaugh cannot be confirmed.

Kavanaugh is an excellent lawyer. He knew, I’m sure, when he issued his categorical denial that he was leaving himself no wiggle room. Perhaps he intended the move as a show of strength, a hint that he will rebut Ford’s allegations persuasively when given the chance to speak. Whatever the motivation, the move locks him in. The only plausible defense now for him is self-exculpation on the facts.

And in this endeavor, Kavanaugh himself bears the burden of proof. This sounds like unjust ground to stake out in a society in which the accused is innocent until proven guilty. But in practical terms, Kavanaugh is the one who has to persuade the marginal senator to vote for him. He is the one who has to give Susan Collins and Lisa Murkowski enough confidence in him that they can vote to confirm believing they can defend their actions to a legion of angry voters. It is he, not Ford, who needs to count to 50.

The injustice, in fact, is largely optical. The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

A more interesting question than who bears the burden of proof is what that burden is. Lawyers like to think in terms of known standards of evidence: the reasonable doubt standard in criminal cases, clear and convincing evidence or the preponderance of the evidence in differing civil contexts. There is no known standard of evidence applicable here. Realistically, senators make up their own standard, and decide whether Kavanaugh has satisfied it. For most senators, in fact, there’s no standard of evidence at all, for their support for or opposition to him does not depend on the evidence. It is ideological in character.

But there’s another standard of evidence at work, the one inside Kavanaugh’s heart and head, the one which if he cannot meet, he acknowledges his own service to be less than viable. I can imagine two operative standards for a nominee in Kavanaugh’s shoes. One is what we might call the minimally convincing standard—which we can loosely define as a showing just powerful enough to align the few uncommitted Republicans with the already-declared Republicans and thus assure confirmation.

The other let’s call the no-asterisks standard—that is, a showing sufficiently powerful that a reasonable person will not spend the years of Kavanaugh’s service mentally doubting his integrity or fitness for the role he is playing. It is a showing sufficient for a reasonable pro-choice woman to believe it legitimate—if not desirable—for Kavanaugh to sit on a case reconsidering Roe v. Wade, or for a sexual-assault victim, whatever she may think of his views, to believe it legitimate for him to hear her appeal.

It is possible to imagine Kavanaugh’s confirmation taking place in the space between these two standards. It is possible to imagine his testimony shoring up support among those who want to support him but leaving everyone else with real doubt. This would be, in my view, a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice.

It is, I know, a hard thing to ask of a nominee not to take a win, to go forward with the nomination only if he can prevail with no asterisks. But the last thing the court needs right now is asterisks. It’s bad enough that party caucuses in the political branches generate ideologically distinctive camps on the Court across contested political issues. It’s bad enough that Americans fight over courts in terms that don’t even pretend to honor the idea of law as a discipline independent of politics. Do we really want justices forced into office on party-line votes with pending questions of misconduct in the run-up to elections? That’s a question for Collins, yes, but it is also a question for Kavanaugh whether he wants to be such a justice. I think it reasonable to ask Kavanaugh to consider the circumstances of his confirmation, and the long shadow it might cast over his service.

If Kavanaugh means to behave honorably, the challenge gets even harder. Because in seeking to meet his burden about events that allegedly took place under vague circumstances 35 years ago (however one defines the standard of evidence), there are arguments that are rightly off limits to him. In normal litigation, lawyers generally seek to impeach the credibility of their clients’ accusers. Where Ford (or the government) would bear the burden of proof, Kavanaugh could reasonably be expected to challenge her honesty or raise questions about her memory or mental-health history. I would never say that no attack on Ford’s credibility could be appropriate; if Kavanaugh can produce some hypothetical emails in which she hatched the plot to bring him down, he certainly gets to use those. But an attack on Ford’s credibility that is not devastating and complete will only worsen Kavanaugh’s problem—and such an attack should worsen it. As a general matter, Kavanaugh cannot blame or attack or seek to discredit a woman who purports to have suffered a sexual-assault at his hands. He cannot play Harvey Weinstein games if he wants to emerge from this episode as a credible figure. A Supreme Court justice is not a movie executive. Simply winning isn’t good enough.

Putting it all together, Kavanaugh’s task strikes me as an unenviable one. 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.

If Kavanaugh believes he can do this, he should certainly try. In fairness to both Ford and to him, I will reserve judgment on the merits of the matter until I hear a full account of both sides of it. I urge others to do the same. I can imagine, in theory, defenses that would meet the high bar I think Kavanaugh needs to clear.

But if Kavanaugh cannot present such a defense—even if he truly believes himself innocent, even if he is innocent—the better part of valor is to get out now.

Getting out does not mean admitting that Ford’s account of his behavior is accurate, something Kavanaugh should certainly not do if her account is not accurate. It means only acknowledging that there is no way to defend against it in a fashion that is both persuasive and honorable in the context of seeking elevation to a job that requires a certain moral viability. It means acknowledging that whatever the truth may be, Kavanaugh cannot carry his burden of proof given the constraints upon him.

It means accepting that it is better to continue serving as a D.C. Circuit judge than to play the sort of undignified games that Republicans are playing on his behalf.