‘Truth Is Confirmed by Inspection and Delay’

Discoverable facts relevant to the allegations against Brett Kavanaugh remain uncovered.


The Roman historian Tacitus wrote that “truth is confirmed by inspection and delay; falsehood by haste and uncertainty.” After watching Christine Blasey Ford testify about the Supreme Court nominee Brett Kavanaugh, and watching him defend himself against her sexual-assault allegations, I remain unequipped to confirm the truth of what happened.

If forced to wager $500 on the proposition “Does Ford believe she is telling the truth?” I’d confidently bet yes. Compelled to bet instead on the question “Do both people believe that they are telling the truth about the sexual assault?” I’d still bet yes, with a bit less confidence. But I’ve studied too many criminal trials that sent innocents to jail or that acquitted the guilty, watched too many people persist in self-righteous confidence that Bill Cosby was clearly innocent or that the Duke lacrosse players were obviously guilty, and read too much about the tricks human memory plays across decades to trust that I can judge the truth beyond a reasonable doubt with what’s now before us.

Yes, I know that reasonable doubt isn’t the burden of proof in judicial confirmations. Still, might inspection and delay improve on our outlook?

Much like Ross Douthat, I closed C-SPAN’s livestream thinking that “for all the years that have passed since the summer of 1982, the truth might actually be accessible, and there are obvious questions and avenues of inquiry, unpursued by both parties, that could bring us closer to understanding which of the two witnesses were telling the real truth.”

I want Mark Judge questioned at length, under oath by a Democrat and a Republican. I want Leland Keyser similarly questioned. I want answers to at least a dozen questions that went unasked in yesterday’s hearings.

Partisans are now fighting about who is to blame for the fact that so many avenues are still unexplored. I do not summarily dismiss the charge that Democratic senators cynically manipulated the process to delay the nomination as they seek more seats in the Senate––and I grant that, if true, letting them succeed would set a bad precedent. (That’s the case even if the party that declined to give Merrick Garland a vote cannot righteously complain about the other side’s procedural irregularities.)

But partisan fault matters less than the public’s right to additional information. I favor probing the matter, because the least divisive way out of this national crisis is finding new, dispositive evidence; and the next least divisive way out is a probe that still ends in uncertainty, but with millions more convinced that both sides at least diligently sought the truth.

In contrast, a rushed vote would leave millions feeling that Republicans willfully elevated a sexual predator while avoiding due diligence, and millions of others feeling that Democrats destroyed a man’s reputation for political ends. The effect on the midterms is unclear, save for the fact that the electorate would be even more polarized and retain even less confidence in Congress and the Supreme Court.

The case for probing the matter more exhaustively now is further bolstered by the fact that if the GOP succeeds in confirming Kavanaugh, relevant parties who’ve submitted sworn statements but who’ve undergone no questioning (and others who haven’t yet gone on the record at all) will still be available to journalists, opposition researchers, and hackers.

Ford’s email was reportedly compromised. It is possible that hackers have already pilfered accounts belonging to Keyser or Judge or another party. Can anyone on either side truly be confident that a leak tomorrow might not significantly undercut their preferred narrative?

Once Kavanaugh is on the Court, significant new information suggesting his guilt, or even that he lied under oath, would be a blow to the Supreme Court’s legitimacy and almost certainly trigger calls for impeachment.

Better to out as many facts as possible before any vote.

As I write this, Kavanaugh has passed out of the Senate Judiciary Committee. “But in a dramatic reversal,” The New York Times reports, a retiring Republican senator, Jeff Flake of Arizona, “said he would not support final confirmation until the F.B.I. investigates accusations of sexual assault leveled against Judge Kavanaugh.” I am less convinced than many others that an FBI investigation is the best tool for reaching the truth, and wish that alternative approaches were on offer.

But I share Flake’s expressed sentiment that “we ought to do what we can to make sure we do all due diligence with a nomination this important,” in part because “this country is being ripped apart here,” and the fantasies of the angriest Americans notwithstanding, we have no choice, save catastrophic violence, but to live together going forward.