Christine Blasey Ford says Brett Kavanaugh tried to rape her at a party in the 1980s when they were both in high school. Kavanaugh says it didn’t happen. How much evidence must be arrayed against him before he’s denied a seat on the Supreme Court?
That depends on who you ask. “I believe her,” said Senator Mazie Hirono, Democrat of Hawaii, seemingly obviating the need for the FBI investigation and much longer look by the Senate Judiciary Committee that she’s advocated.
“I believe Dr. Blasey Ford because she’s telling the truth,” elaborated Senator Kirsten Gillibrand, Democrat of New York. “You know it by her story.” Ford is also the one trying to get the FBI involved, she added.
“Who is not asking the FBI to investigate these claims? The White House. Judge Kavanaugh has not asked to have the FBI to review these claims. Is that the reaction of an innocent person?” Gillibrand asked. She answered her own question: “It is not.”
Kate Shaw, a professor at the Benjamin Cardozo School of Law, argued in a New York Times op-ed that a credible allegation of sexual misconduct against Kavanaugh might be enough to torpedo his nomination. After all, as Shaw’s husband, MSNBC pundit Chris Hayes, pointed out on Twitter, the outcome would leave Kavanaugh no worse off than Barack Obama’s failed nominee Merrick Garland.
Ford’s allegation of sexual assault is credible. Her story is similar to that of other accusers who have told the truth and been vindicated. There are enough indications that she suffered trauma and some key details of her account predate this particular Supreme Court confirmation battle.
But her accusation is also, for the moment at least, still well short of proven. “This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges,” writes Shaw. “That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.”
Indeed, the burden of proof shouldn’t be as high as in a criminal case and possibly even a civil trial. That’s probably not possible here given the time elapsed and the tools available to the Judiciary Committee or even the FBI. Nor is it really required to render a political judgment. As of this writing, however, the claims don’t even meet the lower standard proposed in Shaw’s first sentence: no “allegations,” plural, and no “further corroborating evidence.”
The problem is that Kavanaugh’s denial is also credible. Perhaps that will change. Or maybe conservative Kavanaugh ally Ed Whelan’s theory of mistaken identity—more insinuated than asserted, certainly not proven, at first glance reckless—will lead somewhere (other than appearing to implicate someone else without direct evidence). But Kavanaugh’s reputation, like Clarence Thomas’s before him, has already taken an irreversible hit without many basic questions having been answered.
Charges against public figures do have to meet some kind of burden of proof, even if far short of that required in a criminal trial. The problem is skeptical questioning can easily bleed into victim blaming, especially when politics is involved. And there is a legitimate tension between many sexual crimes, where women have genuine reasons to delay or avoid coming forward even though the passage of time makes the allegations inherently harder to prove, and any kind of presumption of innocence for men who are accused.
These tensions have been evident on college campuses, where the implications can be greater than how high up the judicial ladder an already successful person is permitted to climb. The problem isn’t that women are in general likely to lie about matters like rape or sexual assault—they aren’t. At issue is the fact that low evidentiary standards as a matter of principle inevitably lead to bad outcomes for the innocent.
If anything, it would be best if the norms were changed to encourage women to come forward faster so we are not left with unresolved, and potentially irresolvable, claims from 36 years ago. But past injustices have a way of begetting future ones and today’s accusers look at how people in similar situations were treated in the past.
All these things are even more difficult to adjudicate in our deranged political culture, where partisanship fills the gaps in our knowledge. One of the things that made #MeToo effective, however, was how meticulously documented were the claims against even our most cherished celebrities and influential political leaders. These are tough questions, yet trading Ronan Farrow’s careful journalism in for partisan hit jobs doesn’t seem like the right answer.
W. James Antle III is politics editor of the Washington Examiner and author of Devouring Freedom: Can Big Government Ever Be Stopped?