Below is my Hill newspaper column on the unfolding controversy surrounding the allegations of sexual abuse brought against Judge Brett Kavanaugh. As we wait for the week long FBI investigation to be completed, the question remains the same: what is the standard that should apply to such cases once all of the evidence laid before the Senate? As the FBI prepares to submit new evidence, the Senate still must articulate a standard of review for that evidence.
Here is the column
The confirmation hearing for Brett Kavanaugh seems to have morphed into a national hearing on the #MeToo movement. The desire to “speak to women” through the hearing ignores the fact that there are real people, real factual disputes, before the Senate Judiciary Committee, not props for a public morality play. These people have rights, and senators should be clear as to the standards they will apply.
Democratic senators lined up almost immediately after the release of Christine Blasey Ford’s letter to announce that they believe her, not Kavanaugh. Senator Mazie Hirono (D-Hawaii) was asked on CNN whether Kavanaugh should even be given the “same presumption of innocence as anyone else in America?” It was a question that would not ordinarily prompt equivocation or hesitation. Yet, affording Kavanaugh a presumption could be viewed as questioning Ford, so Hirono said she would “put his denial in the context of everything that I know about him in terms of how he approaches his cases.”
Some Republican senators have shown the same disregard of their duty as fact finders in dismissing Ford’s allegation, as well as those of two other women. The public announcements by senators that they believe either Ford or Kavanaugh illustrate how both sides are dispensing with any pretense of fairness or due process. They are yielding to the politics of the moment, regardless of the cost to either individual.
The #MeToo movement has forced recognition of the widespread incidence and tolerance of sexual harassment in society, including unreported sexual assaults. All movements, however, risk mutating into something dangerous when standards of proof are discarded in favor of meting out popular justice. If that happens here, #MeToo could go from a movement of equality to a form of McCarthyism where an accusation is as good as proof. We reach that point when those calling for a presumption of innocence are treated as suspect, and the line between an allegation and evidence disappears.
As the hearing today begins, there has been a plethora of statements that the Senate Judiciary Committee is not a court of law and, thus, not subject to any standard of proof. If only it were that simple. However, the committee is sitting as a fact finder, not just a political body. There is a difference between a hearing on legislation, where senators vote based purely on politics, and a hearing where the reputations of individuals hang in the balance. Congress and courts have long recognized that difference. While rules of evidence do not bind committees, they have historically sought to follow basic rules of due process in impeachments and other proceedings tasked with finding facts underlying ultimate decisions of confirmation, removal or oversight.
Parties often argue privileges, immunities and other defenses before committees. Certain constitutional rights do apply in legislative proceedings. It is precisely those elements that distinguish congressional committees from the mob. They may not have the obligation to guarantee specific rules of due process, but that does not give them license to ignore due process. Those crafting our laws swear to uphold not just the express obligations of the Constitution but the values it represents.
That brings us back to Kavanaugh. A handful of women accuse him of alarming acts of sexual abuse. They deserve a hearing and, yes, further investigation. However, all the allegations contain gaps and shortfalls in corroboration, which is not surprising, given the long passage of time. In a court of law, most of the declarations offered to the committee would be inadmissible. Likewise, while Kavanaugh’s high school calendar would be admissible, it would not be particularly weighty as evidence.
The difference between a court and a congressional committee is captured in the fact that this type of information can be admitted and considered by the committee. However, that does not mean senators can dispense with any standard of proof. At the very least, they should believe — by a “clear preponderance” of the evidence — that Kavanaugh is guilty, if they will use it as the basis for their vote. That is a standard lower than the “beyond a reasonable doubt” of a criminal trial, but it is higher than a “mere preponderance” of evidence used in some civil cases.
Before being lowered by the Obama administration, students accused of sexual misconduct were reviewed under the clear preponderance standard or a “clear and convincing evidence” standard. This generally meant that the person was likely guilty to roughly a 75 percent certainty. It was meant to require a substantive burden when a school makes a decision that likely creates a lifelong stigma for a student found guilty.
A Supreme Court nominee should be accorded no less protection. The clear preponderance standard allows a senator to be less than certain but to have more than a mere preponderance where even the slightest degree above a 50/50 determination is sufficient. It means it is not enough for a senator to find that an allegation and a denial are in simple equipoise — the classic “he said, she said” status. An allegation and a denial leaves a charge unproven, even under a preponderance standard.
Moreover, that standard does not change by multiplying the number of allegations if they still lack corroboration or support. Each should meet the clear preponderance standard to be used as a dispositive basis for denying a confirmation and forever labeling a nominee as a presumptive rapist. Finding an allegation as disproven doesn’t mean you don’t believe alleged victims but, rather, that the evidence does not support a punitive resolution.
Where multiple accounts do matter is when they supply “pattern evidence.” All of these allegations describe a pattern of heavy drinking and aggressive conduct. In a real court, such evidence would be difficult to admit, even criminal acts going back over 10 years are often excluded in trials. Yet, that again is a valid difference between this committee and a court: It can and should consider pattern evidence.
Kavanaugh may have made himself more vulnerable to such arguments with his categorical denials of knowing these women, being at such parties, or engaging in drunken conduct. Those statements create a serious question of his veracity, if the committee finds evidence to the contrary.
In other words, there are legitimate questions to be investigated and a standard of proof to be applied. If the senators believe that, by a clear preponderance of evidence, he lied or engaged in these acts, they have a principled reason to vote against him. Otherwise, they are left with the original merits of the confirmation decision.
In presenting themselves to this committee, two people are placing their lives and reputations on the line. The least senators can do is guarantee they will be considered impartially under a coherent, fair standard. If the hearing becomes — as it increasingly appears — a mere extension of politics by other means, these senators have failed these witnesses and their institution at a truly historic moment for this country.