Law & the Courts

The Presumptions of Evil That Cloud the Kavanaugh Debate

Supreme Court nominee Brett Kavanaugh on Capitol Hill in Washington, D.C., September 4, 2018. (Joshua Roberts/Reuters)
If he’s bad anyway, the mere ‘chance’ he’s guilty should derail his confirmation.

There was a moment in Season 7 of the hit HBO series Game of Thrones that perfectly summed up the state of American politics in a time of negative polarization. Lord Petyr Baelish (better known as Littlefinger) is attempting to poison Sansa Stark against her sister. He approaches her and says, “Sometimes, when I try to understand a person’s motives, I play a little game. I assume the worst. What’s the worst reason they could possibly have for saying what they say and doing what they do? Then I ask myself: How well does that reason explain what they say and what they do?”

It’s a short clip worth watching. The slimy delivery makes the moment:

I’d submit that we’re all living in Littlefinger’s world, and that we simply can’t understand the fury of either side of the political divide without understanding that this fury develops amidst a presumption of evil. And when there’s a presumption of evil, it’s virtually impossible to cleanse yourself of the stain of any allegation.

We see these presumptions at work in the Kavanaugh debate. On the GOP side, the presumption is what undergirds two of the three conservative positions that Ross Douthat outlined today in the popular New York Times podcast The Daily. Those three general positions are “It doesn’t matter,” “The allegations are serious, but not proven,” and “It’s all a smear.”

The “It doesn’t matter” argument has echoes of 2016 and depends largely on the assumption that the Left is so bad that it can’t be granted any victory, even if that means overlooking or disregarding evidence of sexual abuse. The “smear” argument depends on the contention that the Left writ large will “say anything” or “do anything” to win a political fight and preserve the right to kill children in the womb.

And, by the way, if you want to prove your thesis, there is no shortage of truly bad and truly evil actions — especially online — that can serve as evidence. Each terrible tweet (especially from a blue checkmark) is proof of the “the Right’s” or “the Left’s” true agenda. Each piece of shoddy journalism further proves the case against the media writ large.

Make no mistake, the presumptions of evil clouds the Left’s perceptions of Brett Kavanaugh as well. The first and most important is the widely held view that there is something inherently morally deficient about pro-life men. Democratic senator Mazie Hirono voiced an extreme version of this view when she said Kavanaugh’s position on “women’s reproductive choice” (among other things) affects her view as to whether Brett Kavanaugh was entitled to a presumption of innocence:

The presumption of evil is also behind the ongoing episode of CSI: Yearbook that’s now supplanted Ronan Farrow’s New Yorker story as the Brett Kavanaugh topic of the day. Does his high-school yearbook prove that he was just the sort of dudebro pig that Michelle Goldberg excoriates in the New York Times? Consider the assumptions laden within this paragraph:

Regardless of what happens to Kavanaugh, however, this scandal has given us an X-ray view of the rotten foundations of elite male power. Despite Donald Trump’s populist posturing, there are few people more obsessed with Ivy League credentials. Kavanaugh’s nomination shows how sick the cultures that produce those credentials — and thus our ruling class — can be.

If Kavanaugh is the poisonous fruit of the rotten tree, how much easier is it to believe the worst claims against him?

But wait: In his interview last night, Kavanaugh tried to flip the script. He worked hard to counter the image of himself as an out-of-control partying predator and instead disclosed that he was — surprise! — a virgin until many years after high school.

So, how does one filter that news through the presumption of evil? Easy, now he’s dangerously repressed. For example, here’s Vox’s Matthew Yglesias:

And here’s the Washington Post’s Jennifer Rubin, explaining Kavanaugh’s alleged misconduct through the prism of his professed chastity:

It’s the Littlefinger principle, all the way down. Why would we believe he assaulted a teenage girl? Well, his stance on reproductive freedom demonstrates his lack of respect for the liberty and autonomy of women. Oh, and besides, he belonged to that awful party culture. Or maybe he’s one of those sexually deprived incels.

In fact, the presumption of evil is part of the reason why many of Kavanaugh’s accusers are impatient with the very idea that the accusers bear any kind of burden of proof. If he’s bad anyway, then the mere “chance” that he committed an act of sexual assault or indecent exposure should be the nail in the coffin of his confirmation.

But lost in the think pieces, the furious tweets, and the partisan arguments is a truly rigorous examination of the evidence. A man has been accused of serious offenses. Can we carefully consider the claims? All the crass yearbook entries in the world don’t change the fact that not one named witness can yet place Kavanaugh at the location of either alleged crime. His presumed pro-life views are irrelevant to the fact that his second accuser allegedly told her classmates that she wasn’t sure Kavanaugh was the person who exposed himself.

Whether Kavanaugh is pro-life or pro-choice, a dudebro pig, a repressed nerd, or a “woke bae,” the standard should be the same. The Senate should hear serious claims, accusers should bear the burden of proof, and those claims should be decided on the evidence. Any other standard turns the Littlefinger principle into national policy: We will presume the worst, and God knows the worst people can’t be allowed to win.



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