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Why Tanking Kavanagh Due To A ‘Reasonable Suspicion’ Is Wrong And Bad For Society


“A crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees,” said Robert Bork before the final, fateful 42-58 vote against confirming him to the Supreme Court in 1987.

Those words and his following statement would be just as fitting had Judge Brett Kavanaugh said them this week: “For the sake of the federal judiciary and the American people, that must not happen. The deliberative process must be restored. In the days remaining, I ask only that voices be lowered, the facts respected and the deliberations conducted in a manner that will be fair to me and to the infinitely larger and more important cause of justice in America.”

Bork’s words from 31 years ago stand as a warning today, as America tensely awaits the fate of the proposed successor to the very man who ultimately took what would have been Bork’s seat on the court. I am not the first to criticize Democrats’ attempts to turn the SCOTUS nomination hearing into a kangaroo court. Plenty of commentators not in lock-step with the far left have done so. But others invite Democrats to repeat ad infinitum the character assassination of Bork and Kavanaugh by lowering the standards of evidence far below even the least stringent due process standard.

What Standard to Use for Sanctioning a Person

Nicholas Grossman argued that we should treat both the “beyond reasonable doubt” standard for criminal trials and the “preponderance of the evidence” standard used in civil trials, favored by David French, as too lenient for judging Supreme Court nominees. The “preponderance of evidence” standard says the jury only has to be mostly sure that the defendant is guilty.

Grossman writes, “Instead of beyond a reasonable doubt or preponderance of the evidence, we should use a standard common to national security: Is this an acceptable risk? Do the benefits outweigh the costs? Is it better than alternative options?”

“Reasonable suspicion” is Grossman’s standard for both the credit card debt and sexual assault claims against Kavanaugh: evidence that is just enough to make confirming Kavanaugh, in his view, an unacceptable risk.

Instead, French’s proposed civil trial standard of “preponderance of the evidence” is very reasonable. He wrote, “Unless all parties start telling the same story, there is no way to know for certain if this event occurred. We don’t need certainty, however, to make a decision on whether a man should sit on the Supreme Court. I have the same standard for Brett Kavanaugh as I did for Roy Moore, for Donald Trump, for Bill Clinton — or for any other politician who’s accused of misconduct. Is it more likely than not that the allegation is true?” He then dissects all the evidence presented at the time of his writing, September 16, and comes to the conclusion that it is more likely than not that Kavanaugh is innocent.

While many on the right would shout French down and say that a standard of “more likely than not” is not fair enough toward Kavanaugh, given that sexual assault is a crime and not a civil matter, I think it is entirely fair considering the power Kavanaugh would hold as a Supreme Court justice, the power Clinton held as president, and the power Moore would have held as a senator. Putting someone who is morally compromised (yes, lying about past offenses qualifies), or who may reoffend in such a position is foolish, even dangerous.

Don’t Let the Left’s Dirty Trick Work

As for the “alternative options,” hindsight is 20-20. If Trump’s team had known Christine Blasey Ford’s allegation would surface, they probably would have nominated Amy Coney Barrett instead. Is there even time to get someone else through a confirmation before the midterms without the Democrats screaming that it’s an 11th-hour appointment that denies the people a chance to “be heard?” And should we let Kavanaugh, a solid pick (if not the most conservative), be thrown under the bus?

Maybe there’s still time to cram another appointee through the wringer, but Kavanaugh doesn’t deserve to be Borked. That’s both because the evidence is so thin and unprovable, and because this confirmation is about so much more than Ford’s allegations. On top of what he deserves personally, the right cannot cave to the left’s insistence we believe all accusers and consider the evidence (or lack thereof) as essentially irrelevant.

They shouldn’t capitulate because this mobilization of the left against Kavanaugh was, and always has been, about protecting the left’s sacred cows. It’s about protecting the Supreme Court as a tool for progressive activism and protecting precedent that enshrines abortion as a constitutional right, now as it was 30 years ago during Bork’s hellish confirmation experience.

Senate Democrats were opposed to Kavanaugh’s confirmation from the outset, well before Sen. Dianne Feinstein finally admitted she had been sitting on Ford’s letter for nearly two months and the left-leaning press began making hay out of her allegations—now going so far as to smear him for a third-party suggestion that he likes his clerks to look “outgoing.”

Nobody Can Pass a ‘Reasonable Suspicion’ Standard

Grossman argues “reasonable suspicion” should be enough to dump Kavanaugh and nominate someone else. Basically, if there’s even a shadow of a doubt that he’s innocent, toss him. There’s just one problem with that: By this standard, are there any people who would get past that level of scrutiny to be allowed into any public office, especially any of Kavanaugh’s age or older? Who among us are saints, men and women alike? Everyone’s past offers a bit of dirt to work with.

I have advocated for higher standards for government officials’ character. I urged Alabama voters to reject Moore, based on my assessment of the evidence. But Grossman is effectively saying that standards of evidence only matter up to the point of generating suspicion, and that’s enough to disqualify someone from higher office.

I wonder if Grossman has ever talked to a QAnon conspiracy theorist: they have all sorts of suspicions about John Podesta being involved in child trafficking and pedophilia, and a cursory glance at their compilation of “evidence” would definitely generate suspicion in those willing to believe the worst of a political enemy. They are all very tenuous threads that require assuming certain improbable premises, but if you squint hard enough…

This is politics in the age of the internet. It doesn’t take much to generate suspicion, and it doesn’t take much more than that for suspicion to become belief, and belief an immortal myth. Sen. Ted Kennedy and his fellow Democrats didn’t even need the internet to take down Bork, who faced no sexual assault allegations.

Fueling a Political Character Assassination Machine

Compounding this long-time embrace of scurrility is the political character assassination machine that is the Me Too movement. Regardless of how it started, that is its nature now. Who can withstand a political tank that rolls over the bodies of anyone who doesn’t acquiesce out of a desire not to be branded insensitive?

Democrats want to foster an environment so hostile that GOP presidents will only dare to nominate people who please the left.

The left is marching in lock-step behind this tank. They will perfect this game of “reasonable suspicion” by producing woman after woman who claims something happened to her that conveniently can’t be proven or disproven. They are only going to improve upon their current strategies. Despicable behavior like this mustn’t be allowed to work.

Again, to say a candidate must be beyond any suspicion to be worthy of higher office is to raise a standard so high that virtually no one will be able to meet it, or even want to try. As Andrew McCarthy wrote, “The long-term goal here is to make the judicial-confirmation process so notoriously savage and demeaning that no sensible, well-meaning conservative or moderate person would agree to put himself and his family through it.”

That is, no conservative or moderate person who wants to rule according to their ideas and methodology. Democrats want to promote the understanding that those who signal they will protect the left’s sacred precedents won’t be run out of town on a rail. Democrats want to foster an environment so hostile to originalists that GOP presidents with slim majorities in Congress will only dare to nominate people who please the left.

This Is an Attempt to Overturn Election Results

How do I know? Because after Bork was shot down, President Reagan tapped another judge, Douglas Ginsburg, only to see him withdraw after being attacked for using marijuana while a professor at Harvard University. Ginsburg was thought of as a “baby Bork” and an “ideological conservative” who “could give the high court a solidly conservative cast,” according to a 1987 Los Angeles Times article. So of course he needed to be taken down by spinning marijuana use as a stain on his character (as if the left actually cares about drug use).

If you want to see every conservative appointment Borked from here until the end of the republic, adopt a standard of ‘reasonable suspicion.’

Reagan was finally successful after nominating Anthony Kennedy, who favored more use of judicial power rather than leaving decisions to legislatures, and backed the unenumerated “right to privacy” on which the Roe v. Wade decision was built. Five years after his confirmation, he sided with the majority in Planned Parenthood v. Casey. Twenty-three years after that, his vote decided Obergefell V. Hodges.

When we cave to the left’s convenient standard of “believe all accusers,” or adopt the guideline that suspicion itself is enough to disqualify, we remove evidence from its proper role as the deciding factor in the debate, as well as any semblance of a fair procedural treatment of the accused. Such a low standard is an abandonment of the pursuit of truth, and therefore justice. The far left is invited, like vampires over your doorstep, to suck conservative victims dry with ever more effective strategies for character assassination.

If you want to see every conservative appointment Borked from here until the end of the republic, adopt a standard of “reasonable suspicion.” Otherwise, keep the evidence front and center, even if it’s just a preponderance thereof.