So, you may have read my recent post asserting that we need not focus on, much less prove, Christine Blasey Ford’s allegation of sexual assault against Brett Kavanaugh to justifiably oppose, even strongly oppose, his confirmation. Law professor Kate Shaw of the Cardozo School of Law at Yeshiva University has written an editorial for the NY Times that agrees with me in certain important ways, though she does implicitly place more importance on Blasey Ford’s allegations than I do.
She also adds something that I did not when I stressed Kavanaugh’s likely perjury during his own confirmation hearings – both his earlier hearings for a lower bench and also the current hearings on his nomination to SCOTUS. Whichever charges we deem most important – perjury over the past week or sexual assault 36 years ago – Kavanaugh is not being criminally tried and the standard of evidence thus shifts dramatically. Even the burden of proof shifts, though more subtly: