Law & the Courts

On Kavanaugh, We’re Through the Looking Glass

Demonstrators protest U.S. Supreme Court nominee Brett Kavanaugh in the Rotunda of the Russell Senate Office building on Capitol Hill, September 24, 2018. (Joshua Roberts/Reuters)
Brett Kavanaugh’s accusers struggle to bear even the lowest burden of proof.

I have two questions for readers. First, does the truth matter? Second, can the Senate fulfill its constitutional responsibility?

If you believe the truth matters, then you should be furious at The New Yorker. The magazine just published one of the most thinly sourced, transparently partisan journalistic hits I’ve ever read. It published a claim by a former Yale student named Deborah Ramirez that a drunken Brett Kavanaugh exposed himself at a dorm-room party more than three decades ago, and he “caused her” to touch his genitals “without her consent as she pushed him away.”

Damaging stuff, right? But wait. Read the evidence. Try to imagine presenting this case to any fair-minded finder of fact. First, Ramirez notes that she had been drinking heavily at the time. This meant that she was “hesitant to speak publicly, partly because her memories contained gaps.” So how did she fill in the gaps about this decades-old incident? “After six days of carefully assessing her memories and consulting with her attorney,” she felt confident enough to come forward.

But even after that consultation, she still doesn’t remember Kavanaugh’s actions clearly. She’s “confident” that she saw Kavanaugh’s “pants coming up,” and she’s “confident” he was there.

But wait. Others aren’t so confident. The New York Times had been tracking down the same story and wrote that it couldn’t find any corroborating witnesses. Even worse, the potential corroborating witnesses told the Times that Ramirez wasn’t sure of her story:

The Times had interviewed several dozen people over the past week in an attempt to corroborate her story, and could find no one with firsthand knowledge. Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself. [Emphasis added.]

The only “corroboration” The New Yorker could offer wasn’t the firsthand report of someone who was there — or even the report of someone who talked to Ramirez — but rather a rumor from someone who claims they’d “heard” about the incident. No, really. Watch the clip with The New Yorker’s Jane Mayer below:

But what about Kavanaugh’s roommates? What about the people who were allegedly at the event itself? Well, the The New Yorker‘s report states that the magazine “has not confirmed with other eyewitnesses that Kavanaugh was present at the party.” That seems like a relatively important, basic detail, to say the least.

Then, as if the process of attacking Kavanaugh couldn’t get more amateurish and malicious, Stormy Daniels’s lawyer, Michael Avenatti, weighed in. Claiming to represent a client with relevant information, he published a series of tweets I won’t reproduce below that implied, without any supporting evidence at all, that Kavanaugh may have participated in gang rapes in high school.

Yes, gang rapes. We are through the looking glass.

The last few days have been dominated by online debates over burdens of proof. I happen to believe that we shouldn’t turn our back on centuries of Anglo-American tradition and that, at the very least, accusers should bear the burden of proving it’s more likely than not that their claims are true. Now some argue that claims need only be “credible” to be believed. Democratic senator Mazie Hirono even argues that Kavanaugh’s judicial philosophy makes her more likely to believe his accusers:

But let’s take a step back and take a look at the state of the evidence against Kavanaugh. There is not a single third-party witness to any claim that can corroborate any accuser or even conclusively place Kavanaugh at the location of any alleged crime. Ordinarily, the existence of multiple claims raises additional suspicions, but in this case not one of the claimants can present any substantiating evidence.

The available evidence simply doesn’t meet any conceivable burden of proof. It’s difficult — especially given the extraordinary passage of time and the admitted memory gaps — to argue even that the claims meet a threshold of “credibility.” Indeed, most of the “I believe her” arguments we see across the length and breadth of the Internet are based either on terrible personal experiences that aren’t remotely relevant to the claims against Kavanaugh or on junk statistics claiming that only a small fraction of rape claims is false.

In other words, for these activists and journalists the claim is “credible” simply because it exists. That’s not how evidence works.

And this brings me to the next key issue — the role of the Senate. Democrats are arguing that the claims against Kavanaugh should be investigated by the FBI. But what’s the process here? Does any accusation — no matter how thinly sourced — merit FBI intervention, even when the allegations don’t involve violations of federal law? Democrats point to FBI involvement in the Anita Hill case, but they fail to note that the FBI resolved nothing. The determination of Hill’s claims rested with the Senate. The determination of the claims against Kavanaugh rests with the Senate.

In a rational process, the Senate sets deadlines. Complaints against nominees are brought to the Senate within those deadlines, and the Senate investigates. And, by the way, the investigations are conducted by both majority and minority staff. The Democrats are not shut out of this process.

If the Senate needs law-enforcement resources to do the necessary due diligence, it can request the use of those assets. If claims meet the necessary evidentiary threshold, then they can be heard in an open hearing, where senators (and the public) can weigh the credibility of the accuser and the accused. The public can then hold senators accountable for their performance on election day.

If accusers won’t cooperate with the body constitutionally tasked with providing advice and consent on presidential nominees, then the Senate should proceed with a vote. If accusations aren’t supported with credible evidence, then the Senate should proceed with a vote without holding additional hearings.

It’s important to reiterate the substantial differences between the claims against Kavanaugh and the claims against virtually any other politician or celebrity brought low in this Me Too moment. Whether you’re looking at Roy Moore, Donald Trump, Bill Clinton, or Al Franken, you’ll find substantial evidence beyond the word of the accusers, including contemporaneous corroboration and on occasion even physical evidence. None of those factors is present in the case against Kavanaugh. In fact, the contrast with the careful reporting and fact-checking in those stories could not be more profound.

Instead, in the absence of evidence, activists and even some journalists are filling in the gaps with partisan wishes and personal experiences. That is not the way to resolve allegations that could alter the course of history and destroy reputations. If accusers aren’t willing to cooperate with a constitutional process — and if they cannot bear even the lowest burden of proof — then the Senate should vote to confirm Brett Kavanaugh and vote without delay. Any other approach looks more like character assassination than a good-faith search for truth.


The Latest