Christine Blasey Ford delivered gut-wrenching and sincere testimony before the Senate Judiciary Committee on Thursday. She deserves respect and empathy from her fellow citizens. Sexual assault is a serious crime, and anyone who has committed that crime, even as a minor, should not have a seat on the Supreme Court.
The core of the controversy for those who must now vote is this: To kill a Supreme Court nomination some burden of proof must be met—in this case, and in the others like it sure to come in the future.
This is not a criminal trial. Guilt beyond a reasonable doubt is not necessary. But some standard of proof is. And in this case, there is no clear and convincing evidence against Kavanaugh. There is not a mere preponderance of evidence. There is not even, as South Carolina senator Lindsey Graham noted, the probable cause to get a search warrant against Kavanaugh.
We have the testimony of Ford, and compelling though it was, we do not have any corroboration of what she says happened more than three decades ago. Under penalty of perjury, all the other people named by Ford as having been at the party where she alleges she was assaulted deny any recollection of the party. Ford’s lifelong female friend Leland Keyser, who says she believes Ford, nonetheless says she has no memory of the event or of Kavanaugh at the time. Two of Kavanaugh’s male high school friends, one of whom is alleged by Ford to be an accomplice in the alleged crime, also deny any recollection of such a party.
Kavanaugh, for his part, could not possibly produce dispositive proof that he had no part in the encounter described by Ford—her allegation includes neither a date nor an address, making it nearly impossible for Kavanaugh to produce an alibi. What Kavanaugh did provide was his own sincere and gut-wrenching testimony.
If the standard those voting against Kavanaugh are embracing is that he must disprove a nearly unfalsifiable 36-year-old allegation, his opponents should say so honestly. Some of them came close.
Take Senator Richard Blumenthal, from Connecticut. More than a week before the hearing Thursday, our John McCormack asked Blumenthal how an innocent person might prove his or her innocence in such a he-said-she-said scenario. Blumenthal struggled to answer:
Blumenthal: You know, this nominee is for the highest court in the land. And a lifetime appointment. There’s no margin of error here.
TWS: So there’s no way to prove your innocence here?
Blumenthal: We need to do the full fact-finding, and I’m not speculating on what the standard should be. But we need to know the facts.
TWS: So you don’t know how an innocent person could prove his innocence in this situation? I mean, if it was yourself and a 35-year-old accusation from one person, how would you prove your innocence here?
Blumenthal: The investigation has to talk to the witnesses who were there at the time, has to include all records and other evidence. That’s the way cases are done. That’s the way cases are proven.
It’s revealing that the Democratic senator couldn’t answer a straightforward question: How would an innocent person prove his innocence?
There’s a reason Blumenthal, like so many Democrats, couldn’t articulate a standard for judging Kavanaugh. He’d reached his decision without one. Before he made noises about fact-finding and investigations and evidence and proving a case, before answering—or dodging—the questions put to him, Blumenthal made a proclamation: “I believe the survivor.”
Brett Kavanaugh is being presumed guilty by Senate Democrats, and by most of the reporters covering the story, without a scintilla of evidence to corroborate the claims made against him. And Ford’s was the most credible of the wild charges Kavanaugh’s opponents leveled. In the last week, Democrats have lobbed one unsubstantiated claim after another at the nominee. And many of the same media outlets that have proclaimed a renewed fidelity to facts and truth in the Trump era have repeated these claims—and amplified them—without even pretending to establish their veracity.
“I ask you to apply the standard you would like to apply to your father, your brother, your son,” Kavanaugh said before the committee. Is guilty-until-proven-innocent a standard we want in this country?
It’s hard to see a positive outcome from this ugly episode. If Kavanaugh is confirmed, those convinced of his guilt will view his elevation as a profound injustice and many of them will believe, quite sincerely, that the Supreme Court is somehow less legitimate with him on it. If Kavanaugh is voted down, his supporters will be angry that wholly uncorroborated claims from decades back could keep a highly accomplished jurist from serving on the nation’s highest court. And if Kavanaugh were to withdraw, recognizing that either of those first two scenarios would likely cause lasting damage to the court and to the country, he would be rewarding the disgraceful behavior of the Democrats who brought us to this moment.
The Judiciary Committee will vote Friday on whether to recommend Kavanaugh to the full Senate. Kavanaugh will not get the support of Democrats who opposed his nomination on ideological grounds and distorted the confirmation process in a disgraceful attempt to block him. Nor will he get much support from an American news media that duly reported every vicious rumor circulated about him. But he deserves confirmation.
