As the controversy grew around Brett Kavanaugh allegedly committing sexual assault on multiple occasions in the 1980s, one crucial bit of context was missing in the media coverage: Kavanaugh is not presently being charged with a crime (if he was, he would enjoy a slew of constitutional rights such as the presumption of innocent until proven guilty). Rather, the United States Senate is considering his nomination to be a Justice on the United States Supreme Court. Therefore, rather than his alleged acts being viewed through the lens of whether he is guilty of a crime beyond a reasonable doubt, United States Senators on the Judiciary Committee are considering his qualifications, character, and ability to serve as a Supreme Court Justice. Inevitably, part of the vetting process must include investigating allegations that he has committed crimes, including sexual assault (particularly after he denied committing such acts), with an eye toward determining whether the allegations are true as they reflect one’s character, discretion, and judgment.
On NBC’s Meet the Press, aired on September 23, 2018, National Review editor Jonah Goldberg articulated a common misconception of sexual assault allegations. One of Goldberg’s fellow panelists lamented the difference in reactions between (1) a person complaining of having his or her motor vehicle stolen and (2) a person complaining of being sexually assaulted. In the former instance, the victim’s report is likely to be presumed true (except perhaps by that person’s insurance carrier), and in the latter instance, the victim’s report is typically presumed false. Goldberg did not deny that such a difference in reactions exists but instead justified it saying that to believe a person’s complaint of sexual assault would presume the alleged assaulter guilty, and that reversal of the presumption violates a thousand years of legal precedent.
While it is obvious, it bears repeating: Kavanaugh is not facing criminal charges in a court of law; the Senate is considering him as a nominee for Supreme Court Justice, a court of the highest prestige and power. The reasonable doubt standard has virtually no applicability to his nomination.
Setting aside the fervor surrounding this particular nomination, if a nominee had committed a crime, the Senate should know about that crime before it voted. If a nominee was a hypocrite, publicly claiming to be supportive of women’s rights and privacy but having a history of sexual assault, the Senate should know about that hypocrisy before it voted. Because the role of public opinion in the approval of a nominee is far from clear, it becomes crucially important for the Senate to have a deep and full consideration of a nominee.
Perhaps the allegations are groundless. If so, Republicans should be happy to hear them and move toward confirming Kavanaugh. However, more likely, Christine Blasey Ford, a doctor and professor, has agreed to testify despite the risk to her reputation and career which will have the effect of informing the country about her experience with an adolescent boy that is now a sitting judge in federal court and may have a term spanning decades on the Supreme Court. If he did sexually assault any girl or woman, it should cast serious doubt on his fitness to be a federal judge and a Supreme Court Justice.