What to do about allegations such as those made against Brett Kavanaugh?
I don’t believe a word of the claims against him, but we do know that such crimes exist. We also know from the examples of Lena Dunham, Rolling Stone’s UVA story, the Duke lacrosse case, etc., that false allegations of this kind are made, and that those fabrications are pressed into the service of political agendas — a problem I consider in my recent NRO piece. The Democrats, ever stupid about this kind of thing, salivate at the thought of momentary advantage in the Kavanaugh matter without considering how and when false allegations might be used against them in the future — just as they never considered that their grotesque and dishonest campaign against Robert Bork might produce reverberations eventually felt by Barack Obama and Merrick Garland.
What we need are some generally agreed-upon guidelines. There will be no agreement, because Washington is full of narrow-minded, intellectually dishonest opportunists such as Senator Feinstein. But it’s worth thinking about what such agreement might look like.
Rather than concentrate on the truth or falsehood of allegations such as these — the truth or falsehood of which is, for practical purposes, unknowable — we should consider the usefulness of the allegations. And allegations such as those made against Kavanaugh belong in the least-useful category. That category should contain allegations of criminal wrongdoing that meet the following criteria:
- No police complaint was made and no charges pursued.
- No police investigation is being sought.
- The statute of limitations on any alleged crime has expired.
- There is no evidence other than recollection.
This is not to say that we should assume that the accusers in these situations are lying (though at least some of them are lying), only that allegations of this kind cannot be put to any productive use. Against that, we must weigh the fact that treating them as useful and substantial rewards and encourages the fabrication of such stories, making a political weapon of, among other things, false allegations of sexual abuse or rape. Which is to say, situations such as the current one create opportunities for unpardonable abuse and dishonesty without creating any opportunity for the pursuit of genuine justice. If indeed the problem is that victims of such crimes are reluctant to come forward, then we should create incentives for them to do so in the present through legal procedures rather than dangle incentives for them to decline to do so in the present in the hopes of chancing upon an opportunity to pursue a different and less orderly kind of justice at some point in the future. Most wrongdoers will never face a Senate confirmation.
People working in media and politics both have obligations to conduct their business in an ethical and responsible way, and what has transpired in this case is the opposite of ethical and responsible.
People aren’t going to forget that. This kind of petty political advantage-seeking corrodes our institutions and undermines public trust not only in government per se but in social cooperation more generally. This is how healthy liberal and democratic societies devolve into something lower and lesser and ugly. During the Salem witch trials, judge William Stoughton admitted into court “spectral evidence,” i.e., the evidence derived from dreams and visions. Cotton Mather, among others, cautioned against relying too heavily on such evidence. We smile when we think about those primitive, superstitious times. But we should not laugh very hard.