A hopelessly tainted nomination

Usually, when a person accuses someone else of misbehavior, the accuser bears the burden of proof.  That’s one of the fundamental principles of the justice system, and one that supporters of American Supreme Court nominee Brett Kavanaugh have raised to defend him from allegations of sexual misconduct.

However, Benjamin Wittes, writing for The Atlantic, says it is the accused who bears the burden of proof this time:

… in this endeavor, Kavanaugh himself bears the burden of proof. This sounds like unjust ground to stake out in a society in which the accused is innocent until proven guilty. But in practical terms, Kavanaugh is the one who has to persuade the marginal senator to vote for him. He is the one who has to give Susan Collins and Lisa Murkowski enough confidence in him that they can vote to confirm believing they can defend their actions to a legion of angry voters. It is he, not Ford, who needs to count to 50.

The injustice, in fact, is largely optical. The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.


It is, I know, a hard thing to ask of a nominee not to take a win, to go forward with the nomination only if he can prevail with no asterisks. But the last thing the court needs right now is asterisks. It’s bad enough that party caucuses in the political branches generate ideologically distinctive camps on the Court across contested political issues. It’s bad enough that Americans fight over courts in terms that don’t even pretend to honor the idea of law as a discipline independent of politics. Do we really want justices forced into office on party-line votes with pending questions of misconduct in the run-up to elections? That’s a question for Collins, yes, but it is also a question for Kavanaugh whether he wants to be such a justice. I think it reasonable to ask Kavanaugh to consider the circumstances of his confirmation, and the long shadow it might cast over his service.

Even if Kavanaugh is innocent, the damage is already done.  There is a cloud over his nomination that will never be dispersed to everyone’s satisfaction, and the Supreme Court of the United States – already viewed as a heavily partisan institution with “Republican” and “Democratic” wings – may lose whatever legitimacy it has left, especially when the opportunity arises to deal with abortion or other women’s-rights issues.  If you think things are tense now, imagine Kavanaugh and Clarence Thomas joining the majority in a 5-4 decision reversing Roe vs. Wade.

As an aside, none of this likely would have come out had Kavanaugh not accepted President Trump’s nomination to the Supreme Court.  He would continue to serve on an appellate court with his personal reputation intact.

Has anyone ever made a deal with Donald Trump and come out better off?


2 thoughts on “A hopelessly tainted nomination

  1. andresetton says:

    That is so wrong. If this disgraceful process is allowed to succeed in pushing Kavanaugh out of the running without a shred of evidence, then what prevents every subsequent nomination to suffer the same fate?
    The principle of innocence until proven guilty should apply in every case or there is no hope of healing the very sick and divided political and judicial US system.

  2. Jay Currie says:

    All the more reason to, in the absence of hard evidence, confirm Kavanaugh.

    The Ford story is a non-starter from an evidentiary perspective. As a family lawyer you have to deal with endless, rather insubstantial, claims about nasty behaviour. If Ford’s allegations were levelled against one of your clients, how quickly could you demolish them? And that at a civil burden of proof.

    There is no there there.

    With luck, by the time you read this, Kavanaugh will have been confirmed.

    Meanwhile, I trust you are thriving on the East Coast.

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