Brett Kavanaugh is now a Supreme Court justice. There were a few key senators who could have prevented this, but they did not. The Senate, in confirming Kavanaugh, placed any of its basic ethical sense below political opportunity. We have a responsibility to understand why this occurred and how lawmakers justified it.
I’d like to focus on the words of Sen. Susan Collins (R-Me.), who delivered a speech explaining her decision to confirm Kavanaugh. There is no point in trying to analyze the bluster of Sens. Lindsey Graham (R-S.C.) or Mitch McConnell (R-Ky.) — they long ago became machines willing to report whatever superficial, half-baked spin is necessary to create the illusion of substance.
Collins’s comments about the “presumption of innocence” are the most salient. I will not fault people who, after serious thought, adopt this principle into their ethical judgement. But to be clear, it is not the standard to which Kavanaugh was or should have been held. This was a judicial confirmation, not a criminal proceeding.
“In evaluating any given claim of misconduct, we will be ill-served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be,” Collins said in her speech.
Her words make an appeal to an image of some old, stalwart columns of American democracy; to Collins, those words must defend them. But her sentiment is empty, as she moves us away from the true context of the situation.
What was at stake for Kavanaugh in this confirmation process? A missed opportunity at the highest judicial seat in the nation. His name, he claims, would have been tarnished. But what was at stake for Christine Blasey Ford? Her personal safety. Her credibility, which was intensely scrutinized the second she came forward. And to what end, assuming she’s lying? Preventing one man she knew in high school from being confirmed? For fame, as some have implied — at this cost? We presume innocence in the courts because we rightly believe it is the defendant with the most to lose, but that is not the case here.
What remains, then, is the question to what standard we hold Kavanaugh. As Collins admitted in her speech, this confirmation became about his character. And as Collins also admits, we are obligated to listen to Ford’s testimony, because the Senate knew that even the perceived character of judges plays a role in public trust of the judicial system. The code of conduct for United States judges states that a judge should not only avoid impropriety, but even the appearance of such. According to the code, “an appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament or fitness to serve as a judge is impaired.”
Kavanaugh did little to meet those standards, even in his recent behavior. His final Senate testimony was filled with partisan rage, the complete opposite of “impartiality and temperament.” Collins, of course, ignored that.
But in addressing Ford’s testimony, Collins’s words, although rife with superficial empathy, become unmitigatedly repugnant.
Collins offered some conciliatory rhetoric, calling Ford’s testimony “sincere, painful and compelling,” even saying she “believes” Ford was sexually assaulted. Yet any show of empathy is undermined by the way Collins picks apart Ford’s testimony, asking: How did she get home? Why doesn’t one of her closest friends remember knowing Brett Kavanaugh? Why did multiple men, under threat of felony and or perjury, state this event didn’t happen?
This exact type of surgical probing keeps survivors from speaking out. The trauma that sexual assault inflicts on memory is well documented, yet we still expect victims to stand the most rigorous, legalistic lines of questioning.
But if Ford’s allegations can’t be proven beyond a reasonable doubt, why are they worth discussing? Because the “burden of proof” should not lie solely on Ford, but on Kavanaugh as well. Kavanaugh’s angry, blustering denial is not a valid response to Ford’s accusations, especially in its clear demonstration of his poor temperament. The issue shouldn’t just be the legalistic rigor of Ford’s claims, but the believability of Kavanaugh’s defense. We cannot claim any standard has been met without judging both sides of the equation.
Collins fails to realize this. The senator claimed Ford’s allegations “failed to meet the ‘more likely than not’ standard” and thus would not “fairly prevent” Kavanaugh from serving on the Supreme Court. But there’s something missing in this leap of judgement, and it lies in this presumption of innocence. Only Ford’s testimony is considered, with no mention or thought to the appearance of Kavanaugh’s behavior to the American people. But also at work here is the assumption that Kavanaugh is entitled to this position. No amount of qualifications, and certainly no nomination could ever mean one is guaranteed appointment to public office; the “advice and consent” of the Senate must never be a passive process, especially in the confirmation of Supreme Court justices.
Maybe this line of thinking might seem like a slippery slope away from traditional American law and thought. But this mode of ethical judgement allows us to assess new and relevant perspectives. If Kavanaugh was actually interested in clearing his name, instead of rushing the confirmation process, why wouldn’t he have called for a more extensive F.B.I. investigation, political costs be damned?
Without a comprehensive investigation and with only the denials of the accused, our government allowed a man believably accused of attempted rape into one of our most revered public offices. You can claim that the Democrats didn’t actually care about the moral implications, or that the Republicans at least tried to appear concerned by allowing Ford to be heard, but you cannot claim that the outcome of this hearing, removed from political calculus, is right.
Even if you don’t reach this conclusion, countless Americans now fear the message Kavanaugh’s confirmation sends. That response alone warrants more than a summary of the political gains to be made or feeble attempts at legalistic reasoning for Kavanaugh’s confirmation. Collins, and the 49 others who voted with her, have no answer to this other than invalidating their fear. There is a reality here that is being ignored; the response cannot be to create a string of justifications as to why that reality may be wrong. That is artifice. We have to start from understanding, and with empathy look at those who feel the most vulnerable. Collins and her colleagues didn’t.