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Why Brett Kavanaugh Should Be Confirmed To The Supreme Court Even If He’s Guilty


In his opening statement to the Senate Judiciary Committee on Thursday, Brett Kavanaugh said, “This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.”

It was powerful in the moment, and has stuck with me since Thursday’s hearing. As this next week unfolds, I fear the implications of Kavanaugh’s words will be lost in the usual partisan rhetoric centered on litigating Christine Blasey Ford’s allegation.

First, on Ford’s allegation: if we examine the claim using the mutually exclusive, collectively exhaustive principle (MECE), we are left with four logical options:

  1. Ford’s story is false.
  2. Kavanaugh’s story is false.
  3. Ford is telling her recollection of the truth, but has misidentified Kavanaugh.
  4. Kavanaugh is telling his recollection of the truth, but may have no memory of the event because he was too drunk.

Absent the unveiling of new information, which seems unlikely at this point, we are left to determine the “truth” based on subjective measurements of “believability.” Ford has not provided a specific time, date, or location of this event. All potential witnesses have said they cannot recall any such party. Ford’s closest girlfriend does not know if she has ever even met Kavanaugh. These are our considerations as the Senate deliberates over confirming our nation’s next Supreme Court justice.

The Importance of Assuming Innocence

In his treatise, “Commentaries on the Laws of England,” jurist William Blackstone famously wrote, “It is better that ten guilty persons escape than one innocent suffer.” Blackstone’s formulation, as it has come to be known in the 260-plus years since, is a vital component in understanding Kavanaugh’s confirmation hearing.

Reconsidering the four options above, and accepting the ugly truth that, ceteris paribus, we will never know definitively of Kavanaugh’s innocence, the Senate’s ultimate decision carries two outcomes: they keep an innocent man from his rightful place on the Supreme Court, or they place a man guilty of sexual assault on the highest court in the land.

I humbly submit there is only one decision to make from a moral standpoint, and that is to confirm Kavanaugh. The U.S. judicial system was founded on the core principle that defendants carry a presumption of innocence. To abandon this ideal would mean an embrace of Stalinist, mob “justice.”

The implications for our future are terrifying. If Kavanaugh’s nomination is sunk because of an accusation absent one piece of corroborative evidence—absent even a date, time, place, or witness—there is no conclusion to draw except that every Supreme Court nomination henceforth will be derailed by mere allegation. Forget Kavanaugh’s prediction that good men and women will be so dissuaded that they will choose to avoid public service altogether; even the innocent secondary people who do choose to pursue these positions will be harmed. They will almost assuredly have their lives ruined by decades-old hearsay.

The Butterfly Effect of Weaponizing Unproven Allegations

Here, Blackstone’s formulation takes a modern twist: is it better that one guilty person is put on the court than ten innocent people are kept off of it? The answer seems self-evident, least of which because it is a tenfold increase of Blackstone’s original ratio.

The defense of Kavanaugh has moved beyond the realm of Ford’s individual allegation. It is now a referendum on our country’s upholding of the presumption of innocence. If the precedent is negatively set this week, dozens of truly innocent men and women will have their lives torn apart and ruined in the national arena for decades to come. We cannot in good conscience overlook how our actions today will create a butterfly effect on the events of tomorrow.

While the moral path leads toward a Kavanaugh confirmation, it also means we must wrestle with the uncomfortable possibility that Kavanaugh is guilty of Ford’s accusation. While a person guilty of sexual assault should certainly not be on the Supreme Court, we also must consider the actual impact of this possibility on Kavanaugh’s behavior as a Supreme Court justice.

One thing we know for a fact is that Kavanaugh has been in the public eye for 30 years and has not had a single negative allegation levied against him (until last week). Sixty-five women from high school and college have written expressing their approval of his impeccable character. Kavanaugh’s treatment and elevation of women in the workforce is quite possibly second to none.

Finally, Kavanaugh’s judicial opinions on so-called women’s issues (abortion, contraception, etc.) are already widely known. The veracity of Ford’s allegation has no implication for how Kavanaugh would rule on Roe v. Wade. We already seem to know what he would do, before anyone had even heard the name Christine Blasey Ford.

Punishing Innocence Is Worse than Letting Guilty Go Free

This week, the Senate will have to decide between two imperfect options, as is the case for most difficult decisions in life. While putting a guilty man on the Supreme Court would be deeply unfortunate, what we know about Kavanaugh’s record for the last 30 years of his life tells us the realized negative consequences would be minimal if he were actually guilty.

On the other hand, it is hard to quantify the irreparable damage done by keeping an innocent Kavanaugh off the court because of a disregard for the presumption of innocence. In reviewing Blackstone’s formulation, and considering the makeup of the Supreme Court in 2100, 2200, and beyond, the Senate’s choice is clear.

This open Supreme Court seat originally had the chance to sway our nation’s highest court for a generation. But now the stakes are even higher. Because of this process’s implication on the very fabric of our judicial system, the outcome of Kavanaugh’s nomination will now change the fate of the court forevermore.