Kavanaugh Bears the Burden of Proof

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.
2:55 PM ET
Benjamin Wittes
Editor in chief of Lawfare and a senior fellow at the Brookings Institution


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ask my advice today—and to be clear, he hasn’t done so—I would tell him he almost certainly should have his nomination withdrawn.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.

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https://www.theatlantic.com/ideas/archive/2018/09/kavanaugh-confirmation/571021/