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:
It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.
So what standard should the Senate use in evaluating the claims made by Dr. Blasey and in deciding how they bear on Judge Kavanaugh’s fitness for a seat on the Supreme Court?
…[Here Shaw elaborates briefly on a few examples.]…
These allegations weren’t tested with the rigor that would have attached to judicial proceedings; neither evidence nor testimony … was subject to the sort of adversarial testing that would occur in a court of law. But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.
Shaw thus argues that a “context-dependent approach” has been used historically and is the correct approach today. And here’s we we agree most strongly: the context.
[T]he court is balanced on a knife edge on a range of questions that will affect everyone in the country, regardless of sex,
says Shaw, and I agree. I noted in my earlier piece that
A confirmed judge will be treated in public as equal in legitimacy to any other confirmed judge. The judiciary can hardly do anything different, even if it is well known that the judge lied during a confirmation hearing. The senate thus risks putting US judges and other SCOTUS justices in an impossible position: they must pretend that a sitting Justice Kavanaugh is not tainted, and that his rulings are as legitimate as those of any other justice. The populace, however, will not be so constrained. They will see the defenses of Kavanaugh as dishonest.
Here I’m stressing that USAmericans trust in SCOTUS and perceptions of its legitimacy are too important, and in this moment too fragile, to risk with a nominee like Kavanaugh. Shaw’s nightmare scenario is (at least as contained within this editorial) less apocalyptic than mine, which mentioned the history of riots in the US and how an illegitimate judiciary will lose any power it has to postpone or prevent riot through holding out hope of justice obtained peacefully. But that’s at least in very large part because Shaw specifies no particular consequences that might follow an end to the public’s trust in the rule of law, as tenuous as it may be, and as much other evidence as may already exist that when rule of law does not apply to white men, it does not apply to anyone.
For Shaw, the abstract end (or dramatic reduction) in public trust in the court system is a calamity in itself. What she believes may flow from that may be many things. Ironically, Kavanaugh’s confirmation would also threaten lives if the courts future decisions did go unquestioned and were treated as legitimate, not least because he would certainly vote to overturn Planned Parenthood v Casey (the current controlling case on the limits of one’s right to an abortion) as well as Roe v Wade’s establishment of any right to abortion at all. The results of that are actually more catastrophic if the decision is seen as in any way legitimate.
There is no good here. Though I recognize that certain (almost exclusively) religious persons might see the end of abortion rights as a good, neither in practice nor in principle can such an end to abortion rights bring about the world for which they hope. For the rest, I hope it is uncontested that Kavanaugh’s confirmation would be a cloud with no lining, impermeable to the light of justice.
Please, if you have a US senator, oppose Kavanaugh’s nomination by calling your US Senator today. If your senator is Hirono or one of the others who have been outspoken on Kavanaugh’s clear lack of fitness, call anyway to praise them for doing the right thing. Even if you believe your senator is biased, bigoted, and thoroughly evil, with a soul that could not be cleansed by 36,000 gallons of bleach, call anyway to register your opposition and your certainty that this will hurt that senator in future bids for reelection. The time is now.