Susan Collins’s late announcement to vote to confirm Brett Kavanaugh to the Supreme Court on Friday placed the Maine senator squarely in the center of the debate. And in her remarks, Collins sought the middle on another question, too: how to assess allegations of sexual assault such as those brought against Kavanaugh.
Republicans have for the most part insisted that Kavanaugh is innocent until proven guilty, and that there needs to be incontrovertible proof that he committed sexual misconduct. They point out that no witnesses have corroborated the details of Christine Blasey Ford’s account. Democrats have mostly countered that a confirmation hearing is not a criminal trial, that Kavanaugh is not entitled to a Supreme Court seat as a fundamental right, and that Ford is credible and therefore Kavanaugh should be blocked.
Collins sought to find a third way during her speech, setting a lower standard for proof, yet also saying that Ford’s allegations did not meet it.
“Mr. President, I understand both viewpoints,” she said on the Senate floor. “This is not a criminal trial, and I do not believe that claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard.”
Citing the lack of corroboration of Ford’s account as well as lacunas in Ford’s own recollection, Collins said she did not believe the “more likely than not” standard had been met.
Although she did not use the phrase, the standard that Collins offers appears to be the same as “the preponderance of the evidence,” which is the burden of proof required in civil trials—as opposed to the beyond-a-reasonable-doubt standard in criminal cases. This is also the standard that many colleges now use in evaluating sexual-violence claims under Title IX. Obama-era guidance required schools to use a preponderance-of-evidence standard, though the Trump Education Department has granted schools greater leeway, instructing that “findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.”
Collins said she did not want her vote to be construed as meaning that she does not take sexual assault seriously. “The #MeToo movement is real. It matters. It is needed and it is long overdue,” she said. Her goal appeared to be to find a way to grant sexual-misconduct claims serious consideration even in the absence of hard proof—sexual assault is famously difficult to prove in court, since it often comes down to two contradictory accounts—but to answer concerns from Republican colleagues like Senator Lindsey Graham that giving an inch would open all future nominees to false accusations.
Collins seemed especially angry about a late accusation, brought forward by the attorney Michael Avenatti, by a woman who said that she had been gang-raped at parties attended by Kavanaugh, and that he and a friend had helped drug women.
“This outlandish allegation was put forth without any credible supporting evidence and simply parroted public statements of others,” Collins said. The complaint was surprising, because she was outspoken among senators of both parties in calling for the FBI to include this allegation when it reopened its background investigation to Kavanaugh. (The FBI did not ultimately interview the woman.)
Yet Collins’s rhetoric pushes her into a difficult position. On the one hand, she wants to grant Ford respect and dignity as a “survivor,” as Collins called her. At the same time, her decision to vote for Kavanaugh is based on her ultimate rejection of Ford’s account.
Collins, like many other Republican senators, has tried to reconcile this conflict by saying that she believes Ford was assaulted, simply not by Kavanaugh.
“I found her testimony to be sincere, painful, and compelling. I believe that she is a survivor of a sexual assault and that this trauma has upended her life,” Collins said. “The facts presented do not mean that Professor Ford was not sexually assaulted that night or at some other time, but they do lead me to conclude that the allegations fail to meet the more-likely-than-not standard.”
As Matt Berman points out, this represents a strange triumph for Ed Whelan, the conservative legal scholar and friend of Kavanaugh’s. Shortly after Ford’s allegation became public, Whelan delivered a convoluted, elaborate theory in which he argued that another man—whom he identified, despite no evidence—had attempted to rape Ford, and that Kavanaugh was innocent. Whelan’s theory was immediately and rightly pilloried as both a slander on the other man and as baseless speculation.
Yet Whelan’s theory took deep root, in slightly altered form. Laundered of the spurious accusation, the unidentified alternative culprit became a staple of Republican rhetoric. Unwilling to be seen as outright rejecting Ford’s testimony, which was broadly deemed credible, or as unconcerned about sexual misconduct in general, Republican senators instead coalesced around a theory that had even less evidence to support it than Ford’s account—Ford, after all, had her own testimony, and Kavanaugh’s calendar suggested he could have attended a gathering with the very men Ford placed on the scene. There is no evidence at all for the alternative culprit.
Despite spending a long time in Washington, Collins is, as I wrote in July, surprisingly uncynical about some matters, and is often willing to take people at face value. As she said in her speech, she is willing to take Kavanaugh on his word about the importance of precedent, especially with regards to Roe v. Wade. (Whether that trust is well placed will likely become clear soon.) Yet in the case of Christine Blasey Ford, Collins is willing to take her at her word, but only so far: She’ll grant that Ford was sexually assaulted, but she won’t accept her specific detail.
Collins’s suggestion of a “more likely that not” standard in confirmation cases such as this one—where the question is a discretionary appointment, rather than a matter of a criminal conviction—is sensible and might, in another moment, win bipartisan approval. Yet the cursory FBI investigation of Kavanaugh and the charged partisan nature of this moment mean that the question is more about whether Collins is applying the standard correctly. If there were a jury, it might still be out; as for the Senate, its verdict is in, and it has narrowly decided to confirm Kavanaugh.