Law & the Courts

No, Brett Kavanaugh Has Not Been ‘Credibly Accused’

Judge Brett Kavanaugh is sworn in before testifying during his Supreme Court confirmation hearing in Washington, D.C., September 27, 2018. (Win McNamee/Reuters)
The accusations fail several basic tests of plausibility

Yesterday the Kavanaugh Wars erupted again, thanks to a since-revised essay in the New York Times that purported to bring forward a new allegation against Justice Brett Kavanaugh. According to the original story, a classmate named Max Stier claims he saw friends “push” Kavanaugh’s penis into the hands of a female student. The account is incredibly strange on its own terms (“friends” were handling a man’s penis?), but then there was this editor’s note added to the end — hours after the story had rocketed around the internet:

An earlier version of this article, which was adapted from a forthcoming book, did not include one element of the book’s account regarding an assertion by a Yale classmate that friends of Brett Kavanaugh pushed his penis into the hand of a female student at a drunken dorm party. The book reports that the female student declined to be interviewed and friends say that she does not recall the incident. That information has been added to the article.

That, friends, is a serious omission, but it didn’t stop a number of powerful Democrats, including Elizabeth Warren, Kamala Harris, and Bernie Sanders (three of the four front-runners for the presidential nomination), from calling for Kavanaugh’s impeachment. Sanders’s statement is worth a bit of attention:

He uses a word — “credible” — that’s important to address. In fact, when progressives speak about Kavanaugh, they commonly claim that he’s been “credibly accused” of sexual assault. For example, here’s The New Yorker’s Jeffrey Toobin:

It’s a phrase without any real legal meaning. “Credible” is not the standard of proof in court. But to the extent it means anything at all, it should not apply to any of the claims against Kavanaugh.

Imagine for a moment that you’re a lawyer investigating whether to take a case. Christine Blasey Ford has been in your office and told you a heart-rending tale of a high-school attack, but you do due diligence before taking a case, so you ask an associate to investigate. And when he does, what he finds does not support any single element of her story.

Not one of the witnesses she puts forward back her account. Her own friend says she doesn’t have “any confidence” in Ford’s story. Ford herself has offered differing accounts of her age at the time of the attack, and her therapist’s notes contain a substantially different version of the story. She won’t release the complete set of therapist’s notes, and she won’t release the complete results of a polygraph she took. She’s scrubbed her social-media past, but she’s apparently extremely partisan and seems to have an ideological motivation for coming forward — to help preserve Roe v. Wade.

Before I transitioned full-time to constitutional litigation, I worked on a number of sexual-harassment cases, including cases that included claims of sexual assault. I never saw — in court — a case as weak as Ford’s. To simply say that there is “no corroborating evidence” overstates the strength of her claim. Virtually every single piece of additional evidence undercuts her case.

Deborah Ramirez’s claim that Kavanaugh exposed himself to her is even weaker. At least Ford can present a clear narrative. Ramirez confessed to drinking heavily at the alleged event. She’s confessed to memory gaps. She told friends that she wasn’t sure Kavanaugh exposed himself, she wasn’t comfortable coming forward until spending “six days of carefully assessing her memories and consulting with her attorney,” and no one has even been able to independently confirm that Kavanaugh was at the alleged party. In fact, some of the alleged witnesses contradict Ramirez’s story.

The Times essay claims that seven people “heard about” the alleged incident, but this is an extraordinarily vague claim. There is still no corroborating eyewitness testimony.

In the last 24 hours, I’ve seen a number of progressives marveling at the renewed conservative ferocity in defense of Kavanaugh. But where is the acknowledgment of the very substantial differences between the claims against Kavanaugh and virtually any other recent high-profile claim of sexual misconduct — either in the #MeToo era or before?

Claims against public figures such as Bill Clinton, Donald Trump, Roy Moore, and many, many others feature a considerable amount of contemporaneous corroborating evidence. Other people will state that the victim specifically told them about the incident when it occurred. There will at least be evidence the accuser and accused were together at the date and times specified.

It’s important to remember that #BelieveWomen is a slogan, not an evidentiary standard. We should hear all accusers and carefully consider their claims. But before we judge claims “credible,” shouldn’t there be at least some meaningful supporting evidence? And is a word such as “credible” appropriate when the available additional evidence fundamentally contradicts the accusations?

In the first moments after the Washington Post reported Ford’s claims, I suggested a concrete evidentiary standard should apply. Kavanaugh should not serve on the Supreme Court if it was “likely” he committed sexual assault. Yet the initial report was the high-water mark of Ford’s claims. It grew more shaky as time passed, and now it’s shakier still. Ramirez’s claims never met a threshold of credibility — especially when she herself allegedly told friends she wasn’t sure Kavanaugh had done what she claimed.

The Supreme Court will start its October term soon. Not one court ruling will contain an “asterisk.” The Democrats cannot and will not remove Kavanaugh. When the Senate voted for his confirmation, it not only endorsed his considerable qualifications, it rejected accusations of misconduct that were never supported by meaningful evidence. To call him “credibly accused” is to continue to smear a man. He was never “credibly accused” by any meaningful standard, and he is not “credibly accused” today.

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