There is something extremely curious about the course of the Brett Kavanaugh sexual-assault controversy thus far. At least based on the evidence and her conduct through today, Christine Blasey Ford seems to be making minimal effort to prove her case. In fact, with a strong assist from her Democratic allies, she seems to be making every effort not to prove her case. Absent an FBI investigation that’s not forthcoming and not necessary, she’s refusing to testify before the Senate Judiciary Committee, in essence asking that a single, unsworn letter be allowed to stand as the heart and soul of a claim that could alter history and destroy a man’s reputation.
Democrats are only too happy to play along.
At the foundation of our system of justice is the notion that accusers don’t just have to state a case against the accused, they have to prove their case. The burden of proof varies depending on the situation. At one end is the proof beyond a reasonable doubt of a criminal trial. At the other is the preponderance-of-the-evidence standard of civil court. But in virtually any court, when a person first states their case against an accused, that is just the beginning of the process of proof.
Thus, when you hire an attorney as a plaintiff, it is to go on offense, to build your case, to substantiate your claims. What you cannot do — under any circumstances, in any competent court — is file your complaint, refuse to submit to questioning, fail to produce additional evidence or witnesses, and hope to prevail. In such circumstances, your case will be dismissed as a matter of law, tossed out of court for legal insufficiency — especially if, as in Ford’s case, not even the initial claim is submitted under oath.
Yet from the beginning, Ford’s team — including her attorney, who is known to be aggressive in the service of her clients — has behaved as if she doesn’t have to prove her case, and as if the very request that she do so is itself fundamentally oppressive. She’s submitted her unsworn claim and then immediately gone into a defensive crouch, with allies such as New York senator Kirsten Gillibrand even claiming that having her testify at a Senate hearing would somehow “silence” her.
The consistent demand for an FBI investigation — even when the FBI lacks jurisdiction over the alleged incident — is not by itself problematic. But conditioning her own testimony — the centerpiece of her case — on such an investigation is not what a person intent on proving her allegations would do.
Kavanaugh, by contrast, has submitted to a formal interview, meaning he can be convicted of a felony if he lied. He’s stated that he’s willing to testify at an open hearing. Two other individuals have come forward to rebut Ford’s claims, including Mark Judge, the other man alleged to have been in the room during the attack. Their statements were also offered under penalty of legal sanction for lying. At present they and Kavanaugh are the only people on the record and at criminal risk if they lied.
Unless Ford changes that fact — after being given ample opportunity to testify in public or private, in the Senate or at her home — Kavanaugh should be confirmed, and her claims against him shouldn’t be considered. They should be treated in the same way we treat claims that can’t survive a motion for summary judgment, claims not supported by any evidence in the record.
Those are the stakes. By conditioning testimony on an FBI investigation, Ford and her Democratic allies are attempting to bring the worst possible form of campus “justice” to the national stage. As of this moment, they are actually seeking to derail a Supreme Court nomination and impugn the nominee’s character without a single piece of sworn evidence. Indeed, all the legally binding statements on the matter contradict the accuser.
This cannot stand. Ford’s team has to either reverse course or drop its complaint. Yes, of course, testifying before the committee would be “partisan.” No, the members of the committee are not “neutral.” But that’s not just the reality of the Senate, it’s the fundamental reality of the justice system itself. It is an adversarial system. If you seek to prove your claim under any standard, you have to expose yourself to the most partisan possible scrutiny — cross-examination by a lawyer trained to find flaws in your testimony and paid to work relentlessly until he discredits your case.
If Ford testifies, she’ll face a heightened version of the reality every plaintiff must confront. She’ll have adversaries, and she’ll have allies. It will be difficult, but it is necessary.
Now, some caveats. It’s entirely possible that the instant we publish this piece, the next shoe drops, and it turns out that the defensive crouch was a delaying tactic, that Ford and the Democrats were busy investigating all along, and corroboration and substantiation are just around the corner. Or it’s possible that Ford was simply trying to apply as much pressure as she could, to achieve the most favorable circumstances for an interview possible before finally agreeing to testify under oath.
But even if that’s true, it doesn’t change the fact that those now saying her testimony isn’t necessary — those claiming Kavanaugh should be rejected on the basis of her unsworn claim, a claim completely lacking in contemporary corroboration and contradicted by substantial evidence — are wholly and completely wrong. And it’s dangerous to our very system of justice to create or impose a standard that permits accusers to make accusations and then stand aside as suspicion alone is used to destroy reputations and ruin careers.
Instead, those who make serious allegations — just like those who make claims in court — must be forced to support those claims. They must endeavor to substantiate their case, even under the lowest burden of proof. As of today, the energies of the Democrats are directed at denying that fundamental requirement of American justice. They cannot be allowed to prevail.