By David French
Monday, September 16, 2019
Yesterday the Kavanaugh Wars erupted again, thanks to a
since-revised essay in the New York Times that purported to bring
forward a new allegation against Justice Brett Kavanaugh. According to the
original story, a classmate named Max Stier claims he saw friends “push”
Kavanaugh’s penis into the hands of a female student. The account is incredibly
strange on its own terms (“friends” were handling a man’s penis?), but then
there was this editor’s note added to the end — hours after the story had
rocketed around the internet:
An earlier version of this article,
which was adapted from a forthcoming book, did not include one element of the
book’s account regarding an assertion by a Yale classmate that friends of Brett
Kavanaugh pushed his penis into the hand of a female student at a drunken dorm
party. The book reports that the female student declined to be interviewed and
friends say that she does not recall the incident. That information has been
added to the article.
That, friends, is a serious omission, but it didn’t stop
a number of powerful Democrats, including Elizabeth Warren, Kamala Harris, and
Bernie Sanders (three of the four front-runners for the presidential
nomination), from calling for Kavanaugh’s impeachment. Sanders’s statement is
worth a bit of attention:
The revelations today confirm what
we already knew: During his hearing, Kavanaugh faced credible accusations and
likely lied to Congress. I support any appropriate constitutional mechanism to
hold him accountable.
He uses a word — “credible” — that’s important to
address. In fact, when progressives speak about Kavanaugh, they commonly claim
that he’s been “credibly accused” of sexual assault. For example, here’s The
New Yorker’s Jeffrey Toobin:
Forty percent of the Republican
appointees to the Supreme Court have been credibly accused of sexual
misconduct. #SCOTUS
It’s a phrase without any real legal meaning. “Credible”
is not the standard of proof in court. But to the extent it means anything at
all, it should not apply to any of the claims against Kavanaugh.
Imagine for a moment that you’re a lawyer investigating
whether to take a case. Christine Blasey Ford has been in your office and told
you a heart-rending tale of a high-school attack, but you do due diligence
before taking a case, so you ask an associate to investigate. And when he does,
what he finds does not support any single element of her story.
Not one of the witnesses she puts forward back her
account. Her own friend says she doesn’t have “any
confidence” in Ford’s story. Ford herself has offered differing accounts of
her age at the time of the attack, and her therapist’s notes contain a
substantially different version of the story. She won’t release the complete
set of therapist’s notes, and she won’t release the complete results of a
polygraph she took. She’s scrubbed her social-media past, but she’s apparently
extremely partisan and seems to have an ideological motivation for coming
forward — to help preserve Roe v. Wade.
Before I transitioned full-time to constitutional
litigation, I worked on a number of sexual-harassment cases, including cases
that included claims of sexual assault. I never saw — in court — a case as weak
as Ford’s. To simply say that there is “no corroborating evidence” overstates
the strength of her claim. Virtually every single piece of additional evidence
undercuts her case.
Deborah Ramirez’s claim that Kavanaugh exposed himself to
her is even weaker. At least Ford can present a clear narrative. Ramirez
confessed to drinking heavily at the alleged event. She’s confessed to memory
gaps. She told friends that she wasn’t
sure Kavanaugh exposed himself, she wasn’t comfortable coming forward until
spending “six days of carefully assessing her memories and consulting with her
attorney,” and no one has even been able to independently confirm that
Kavanaugh was at the alleged party. In fact, some of the alleged witnesses contradict
Ramirez’s story.
The Times essay claims that seven people “heard
about” the alleged incident, but this is an extraordinarily vague claim. There
is still no corroborating eyewitness testimony.
In the last 24 hours, I’ve seen a number of progressives
marveling at the renewed conservative ferocity in defense of Kavanaugh. But
where is the acknowledgment of the very substantial differences between the
claims against Kavanaugh and virtually any other recent high-profile claim of
sexual misconduct — either in the #MeToo era or before?
Claims against public figures such as Bill Clinton,
Donald Trump, Roy Moore, and many, many others feature a considerable amount of
contemporaneous corroborating evidence. Other people will state that the victim
specifically told them about the incident when it occurred. There will at least
be evidence the accuser and accused were together at the date and times
specified.
It’s important to remember that #BelieveWomen is a
slogan, not an evidentiary standard. We should hear all accusers and carefully
consider their claims. But before we judge claims “credible,” shouldn’t there
be at least some meaningful supporting evidence? And is a word such as
“credible” appropriate when the available additional evidence fundamentally
contradicts the accusations?
In the first moments after the Washington Post
reported Ford’s claims, I suggested a concrete evidentiary standard should
apply. Kavanaugh should not serve on the Supreme Court if it was “likely” he
committed sexual assault. Yet the initial report was the high-water mark of
Ford’s claims. It grew more shaky as time passed, and now it’s shakier still.
Ramirez’s claims never met a threshold of credibility — especially when she
herself allegedly told friends she wasn’t sure Kavanaugh had done what she
claimed.
The Supreme Court will start its October term soon. Not
one court ruling will contain an “asterisk.” The Democrats cannot and will not
remove Kavanaugh. When the Senate voted for his confirmation, it not only
endorsed his considerable qualifications, it rejected accusations of misconduct
that were never supported by meaningful evidence. To call him “credibly
accused” is to continue to smear a man. He was never “credibly accused” by any
meaningful standard, and he is not “credibly accused” today.
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