Kavanaugh, privilege, and evidence

2018/11/01

The news cycle has moved on from Judge Kavanaugh’s confirmation, but I’d like to say a few words about it.

I think it’s fairly clear that the debate was not so much about the particular facts of the case but rather a referendum on MeToo in general. To elaborate, I’ll use the idea of standards of evidence. In law, different standards of evidence apply in different kinds of cases. The most familiar is for criminal cases, where jurors must find the defendant guilty beyond a reasonable doubt. This phrase means that it is possible that the defendant is innocent, but no reasonable person would doubt that they were. This is a high standard because the legal system is, at least in theory, reluctant to convict people of crimes. It is a very destructive for a person’s life to be put in jail, say.

Other cases have different standards. Personal injury lawsuits require only a preponderance of evidence. In other words, the jury must believe that it is more than 50% probable that the defendant did the thing they are accused of. We use a lower standard of evidence because the punishment is less harsh. Usually it’s that money must be paid by the defendant to the plaintiff that brought the lawsuit.

What standard of evidence should be applied in a Supreme Court nomination hearing? In the debate, it sounded like some people judged the evidence with respect to the highest standard, “beyond a reasonable doubt”. From this point of view, those opposing the Judge’s nomination sound a little crazy. How could it be that you don’t have any doubt about whether or not this thing happened many years ago, for which there is only rough and sketchy evidence?

I don’t think “beyond a reasonable doubt” is the right standard to use for a nomination hearing. We usually hold our public officials to a high standard, which means that we are willing to not put someone into a trusted role if we have doubts about them. In other words, we usually use a lower standard of evidence for this kind of thing. Maybe this is a straw man argument, but I think there is at least some evidence that this thing happened. I’m saying it is not “beyond a reaonable doubt” that Judge Kavanaugh did not assault Dr. Ford. Without the double negative: it could be that Dr. Ford’s version is true.

We could delve more deeply into what standard of evidence is appropriate for denying a confirmation. Was Dr. Ford’s quantity of evidence sufficient to make it acceptable for Democrats to bring it to the public stage? If you apply a high standard of evidence, then bringing this small amount of evidence forward would look like useless grandstanding or muckraking. If, like me, you apply a low standard, then seeing an adult, professional woman saying that something happened is enough to say, “We’ll try someone else.” There’s someone else out there, someone who is also qualified for the job, and against whom there is no evidence of this kind of behavior.

I hear and sympathize with the counterargument, that it’s unfair to allow any old person to come out of the woodwork, make a claim, and for Congress, on the basis of that claim, to deny a person a job. I have two lines of thought about that.

First, public officials serve the public. When they step forward to serve, they take on all sorts of “moral luck”. If the economy tanks while they are in office, we will blame them. If a bridge collapses while they are mayor, we will blame them. People act as if Judge Kavanaugh were their son, and they’re protective of him. You don’t need to be. He’s there, offering to serve us, and we can dismiss him for any old reason, including the chance, however slight, that he might be a rapist. We don’t owe him anything.

Second, even if Judge Kavanaugh were your son, I’m not sure he deserves the benefit of the doubt. Imagine an alternate universe, where Judge Kavanaugh was a man of whom nothing bad could be said. George H. W. Bush might not have been the best man to have ever lived, but no one could have accused him of sexual impropriety. He simply never did anything or put himself into situations where he could be accused of something like this. In other words, Judge Kavanaugh is demanding the privilege of the benefit of the doubt having put himself into compromising situations.

Think about it this way: society doesn’t give women the benefit of the doubt for having put themselves into compromising situations. Women are often not even given the benefit of the doubt when they do the best they can to avoid compromising situations. If a woman goes to a party, and has a few drinks, and is then assaulted, a chauvinist can say, “Well, she put herself into that situation!” If a man goes to a party, has a few drinks, maybe assaults someone, and is later accused of assault, the same chauvinist will say, “Well, he deserves to be able to go to a party and drink and not be ever accused of assault.”