The question before us … 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.
A more interesting question than who bears the burden of proof is what that burden is. Lawyers like to think in terms of known standards of evidence: the reasonable doubt standard in criminal cases, clear and convincing evidence or the preponderance of the evidence in differing civil contexts. There is no known standard of evidence applicable here. Realistically, senators make up their own standard, and decide whether Kavanaugh has satisfied it. For most senators, in fact, there’s no standard of evidence at all, for their support for or opposition to him does not depend on the evidence. It is ideological in character.
But there’s another standard of evidence at work, the one inside Kavanaugh’s heart and head, the one which if he cannot meet, he acknowledges his own service to be less than viable. I can imagine two operative standards for a nominee in Kavanaugh’s shoes. One is what we might call the minimally convincing standard—which we can loosely define as a showing just powerful enough to align the few uncommitted Republicans with the already-declared Republicans and thus assure confirmation.
The other let’s call the no-asterisks standard—that is, a showing sufficiently powerful that a reasonable person will not spend the years of Kavanaugh’s service mentally doubting his integrity or fitness for the role he is playing. It is a showing sufficient for a reasonable pro-choice woman to believe it legitimate—if not desirable—for Kavanaugh to sit on a case reconsidering Roe v. Wade, or for a sexual-assault victim, whatever she may think of his views, to believe it legitimate for him to hear her appeal.
It is possible to imagine Kavanaugh’s confirmation taking place in the space between these two standards. It is possible to imagine his testimony shoring up support among those who want to support him but leaving everyone else with real doubt. This would be, in my view, a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice. [Continue reading…]