Justice Kavanaugh is extraordinarily well qualified by his educational and academic background and judicial history. He should be given a hearing and asked probing questions about his judicial philosophy and his approach to constitutional construction and precedent. Senators should approach this process with an open mind. Before I finally make up my own mind, I will be listening carefully to his answers.
Six Rules for the Ford-Kavanaugh Hearings24
It’s not surprising that each side of the Christine Blasey Ford/Brett Kavanaugh he said/she said dispute is seeking different procedures. This is an adversarial, high-stakes confrontation between a male Supreme Court justice nominee and his female accuser. Reasonable people could disagree about the appropriate procedural steps, but there are basic rules that must be followed for hearings of this kind to be fair.
Rule 1: No one should presume that either party is lying or telling the truth. There is no gender-based gene for truth telling. Some women tell the truth; some women lie. Some men tell the truth; some men lie. Without hearing any evidence under oath, and subject to cross-examination, no reasonable person should declare Ford, a psychology professor, to be a victim or federal judge Kavanaugh to be a perpetrator. Nor should anybody declare the opposite. The issue is an evidentiary one and evidence must be heard and subject to rigorous cross-examination, preferably by an experienced and sensitive female litigator.
Rule 2: The accuser must always testify first, and be subject to cross-examination. The accused must then be allowed to respond to the accusation and also be subject to cross-examination. In the bad old days of the Inquisition, the accused was required to testify first without even knowing the grounds of the accusation. The rule of law in the United States had always been the opposite. The accuser accuses first and the accused then has an opportunity to respond to all accusations.
Rule 3: Political considerations should not enter into he said/she said decision making. Investigators, including FBI background checkers, must take as much time as necessary to get as close to the truth as possible, without regard to whether this helps the Democrats or the Republican or particular candidates. There should be no deadlines designed to influence the midterm elections. Both sides should be given as much time as is reasonable to make their cases and no decision should be made until each side has had that opportunity, which should include the power to subpoena witnesses.
Rule 4: Everybody must be willing to accept the shoe on the other foot test. The same rules that would apply if a liberal Democrat had been nominated by a liberal Democratic president must be applied to a conservative Republican candidate nominated by a Republican president. There can’t be one rule for the left and a different one for the right. The rule of law must apply equally in all situations.
Rule 5: The standard for proving a serious sexual allegation must be high. In a criminal case, the evidence must prove the crime beyond a reasonable doubt. To quote Blackstone, it is “better ten guilty go free than one innocent be wrongly convicted.” That standard must vary with the consequences to both sides. On university campuses, for example, the standard for proving a charge of sexual assault that could result in expulsion should be close to proof beyond a reasonable doubt, perhaps “clear and convincing evidence.”
But it should never be “a mere preponderance of the evidence,” because that means no more than a fifty-one percent likelihood that the sexual assault occurred. Under that low preponderance standard, forty-nine out of every one hundred people convicted may well be innocent. That is far too high a percentage.
What about when the issue is suitability to serve a lifetime appointment on the Supreme Court? The consequences of an erroneous decision are high on all sides. A nominee rejected for a false allegation of sexual assault will suffer grievous reputational and career consequences. But so will the woman whose accusations are deemed untruthful. There is also the consequence of having a Supreme Court justice serve for many years if he was a sexual assailant.
On balance, the standard for accepting a serious allegation of sexual assault should be higher than proof by a mere preponderance. It should come close to clear and convincing evidence, especially if the allegation is decades old and the nominee has lived an exemplary life ever since. But senators should cast their votes based on a total assessment of the candidate’s suitability.
Rule 6: No material information should be withheld from either side. Each side should have a full opportunity to examine inculpatory, exculpatory, or otherwise relevant material that may have an impact on the truth-finding process.
Doubts should be resolved in favor of disclosure because Ford came forward voluntarily with her accusation, thus waiving any right to privacy. Kavanaugh too has waived his privacy rights by being a candidate for the Supreme Court, and any information relevant to his activities, even thirty-six years ago, should be disclosed.
If these neutral rules are followed, the process may end up being fair to both sides. All Americans have a stake in the fairness of this process and no one should compromise the basic rules of fairness and due process that have long been the hallmarks of the rule of law.
How to Decide Who to Believe in Kavanaugh, Rosenstein Drama25
Increasingly, we are living in a world of “he said/she said,” “she said/she said,” “he said/he said.” These conflicts are being played out not in the courts of law, where established rules govern, but rather in the court of public opinion where political predispositions seem to rule. Some people seem to believe that there are gender-based truth genes. They believe women because they are women, or men because they are men. Others seem to believe there is a politically based gene for truth telling. They believe Republicans lie and Democrats tell the truth, and vice versa.
The issues are far more complex. First, there is a continuum of truth telling. Some people have photographic memories and remember everything precisely as events occurred. Most of us have selective memories in which our biases determine what we remember and what we forget. Accordingly, many people truthfully misremember; that is, they believe that what they are remembering is true, even if the video camera would show something different.
In the last several days, these issues have emerged in two different but somewhat related contexts. The first is the direct, dramatic conflict between the several women who have accused Supreme Court nominee Brett Kavanaugh of sexual misconduct and Kavanaugh’s categorical denials. The second involves Rod Rosenstein’s categorical denial of a New York Times story reporting that he had discussed invoking the 25th Amendment against President Trump and surreptitiously wearing a wire during a meeting with the president.
Several years ago my son, who is a film producer, and I worked on an idea for a script in which a “she said/he said” encounter played out in court. Each participant testified quite differently about the recollections of the event. What she remembered constituted sexual assault, while what he remembered constituted a consensual sexual encounter. Reminiscent of the great film Rear Window, our plot had a teenage voyeur secretly recording the encounter from his window across from where the event occurred.
Only at the end of the trial, after both sides testified to diametrically opposite perceptions, did the young man come forward with his video, which conclusively demonstrated that the recollections of both were imperfect and that the situation was far more nuanced and subject to multiple interpretations. I suspect that this fictional account reflects reality as often as reconstructive memories do.
Far too many people, including senators from both parties, have immediately invoked gender stereotypes: Women never lie. Men often lie. Men are assailants. Women are victims. There is absolutely no scientific basis for any of these conclusions. An entire academic area of pseudoscience has arisen in a phony effort to prove that women claiming sexual assault are always, or almost always, truthful. I have studied and taught the subject for decades and I have seen no authoritative study that comes close to establishing a gender-based predisposition for truth telling or lying in the
context of sexual assault.
The so-called empirical arguments in support of these highly politicized conclusions are so deeply flawed as not to warrant serious consideration. Yet they prevail in the media and on both sides of the political spectrum. A predisposition toward lying, truth telling, memory reconstruction, memory failure, and other aspects of reporting the past are completely individualized. People must be judged individually and not by gender, political affiliation, or ideology.
Beyond the testimony of the individuals involved in a “she said/he said” controversy, there is circumstantial evidence that can support either side. Circumstantial evidence itself can, of course, be based on true or false recollections, but sometimes there is objective circumstantial evidence, such as the entries in Brett Kavanaugh’s yearbook. But inevitably, such evidence is subject to multiple interpretations. A life well lived as an adult is not conclusive proof of the absence of misbehavior as an adolescent.
The corollary of this truism is that adolescent behavior is not necessarily a predictor of adult behavior. Should a man in his fifties be judged by what he may or may not have done or said in his teen years? Should that depend on the nature of his teenage activities? Should doubts about whether allegations about teenage improprieties occurred be resolved by looking at the life lived thereafter? These and other probing questions must be asked after we hear testimony from all accusers and the accused. A great deal is at stake, because this is a lifetime appointment and because the accusations against Kavanaugh, if untrue, can be life-destroying.
The stakes are far lower when it comes to whether to believe Rod Rosenstein or the New York Times. There is little doubt that Rosenstein will not serve beyond the midterm elections. Whether he resigns or is fired, his career in the Justice Department is over. The issue is whether he remains on between now and the midterm elections and whether he plays any continuing role in the Mueller investigation and in the decision about how to deal with the report that Mueller’s team will write. These are important but somewhat transitional issues that will be resolved by political considerations.
We may never know whether Rosenstein seriously raised the prospect of a 25th Amendment coup d’état—and that’s what it would have been if any effort had been made to remove President Trump under the 25th Amendment. That amendment was intended to deal with a president like Woodrow Wilson, who suffered a debilitating stroke, or a president like Ronald Reagan, who was shot. It was never intended to allow a palace coup under which members of a cabinet could remove a president who they believed was behaving improperly or even erratically.
That’s what elections are for, and that is why we have our system of checks and balances in place. We live in an age where truth itself has become so politicized that we lack basic rules for arriving at objective conclusions. This is a dangerous phenomenon and we should pay far more attention to its implications for our system of governance.
Burden Is on Avenatti to Show Proof, or Face Consequences26
Michael Avenatti, whose judgments have proved questionable so many times, may be right in demanding a thorough investigation of his client’s outrageous claims of multiple gang rapes participated in and witnessed by a young Brett Kavanaugh.
These claims, typical of Avenatti, seem so incredible on their face that even partisan Democratic senators have generally stayed away from them. Yet, if they are true, they are not only disqualifying for Judge Kavanaugh to become an associate justice of the Supreme Court, but they should result in criminal prosecutions of anyone and everyone who allegedly drugged young girls and subjected them to systematic gang rape on multiple occasions.
The affidavit laying out these allegations is so deeply flawed and so filled with gaps that it would be easy for any experienced cross-examiner to raise doubts about the credibility of the affiant. One critical question is why this young woman would repeatedly return to parties where she claims to have witnessed gang rapes of drugged women. Yet since the charges are so serious, further investigation is warranted.
But there is one condition that should be imposed before an investigation is conducted: The accuser should have to waive her lawyer-client privilege with Avenatti so that investigators can determine how much of her affidavit and how many of her claims were originally her own, and how many, if any, may have been “improved upon” by her conversations with her highly partisan lawyer or others.
If she is telling the truth, she should have no reason for not waiving the privilege. If she is lying, then there is no privilege anyway, since the crime-fraud exception would take it outside of the privilege. She should be asked how she got in contact with Avenatti, who first introduced the term “gang rape” into the conversation, and whether she intended the information she conveyed to Avenatti to be made public.
Both Avenatti and his client should be questioned by the FBI as well as by Senate investigators. If Avenatti wants the truth to come out, let him place no barriers to fair inquiry.
So, the ball is now in the court of Avenatti and his client. Let her appear on television if he wants to try the case in the court of public opinion, but don’t allow her to hide behind privilege. Moreover, Avenatti has another option: he can demand a criminal investigation by local authorities in Maryland, because Maryland law has no statute of limitations for the kind of rape he and his client have accused Judge Kavanaugh of committing.
The current situation is untenable—for Kavanaugh, for his accusers, and for the American public. An accusation as serious as gang rape simply cannot be allowed to sit out there uninvestigated. Kavanaugh and his accuser are both entitled to a full investigation. If the investigation establishes that the accusations are true, there should be serious consequences for Kavanaugh. But if the investigation proves that the allegations are made up of whole cloth, or if Avenatti did not properly investigate them before making so serious an accusation, there should be consequences for both Avenatti and his client.
These allegations are simply too extreme to be left to the court of public opinion, where people believe what they want to believe and where puffery and wild, unsubstantiated accusations often serve as a substitute for proof.
So the burden is now on Avenatti to file a formal complaint with the Maryland authorities. Put your client on television and allow her to answer all questions about her accusations and your role in bringing them forward, and be prepared to pay the consequences if it turns out that you or your client have defamed a man innocent of these crimes.
Now that the Senate Judiciary Committee has voted to send the nomination to the floor of the Senate and to allow a week of further investigation, there is no excuse for not thoroughly, fully investigating this charge along with others. The public, Congress, and law enforcement are entitled to know whether accusers are telling the truth or are committing perjury for partisan or other ideological reasons. The stakes are high. The resources for a thorough investigation are there. Let the process move forward for a fair resolution for all concerned.
This Is No Mere “Job Interview”27
Until Judge Brett Kavanaugh was accused of horrible crimes—sexual assault, lewd conduct and even gang rape—his confirmation hearings could fairly, if not entirely accurately, be characterized as a “job interview.” The burden was on him to demonstrate his suitability to serve on the Supreme Court. He apparently met that burden in the eyes of a majority, a partisan one to be sure, and seemed on the way to getting the job.
But now everything has changed. So should the burden of persuasion. The behavior of which Judge Kavanaugh has been accused is so serious and devastating that it requires a high level of proof before forming the basis for his rejection. There is an enormous and dispositive difference between a candidate’s rejection on ideological grounds, as was the case with Robert Bork, and rejection on the ground that he has committed crimes warranting lifetime imprisonment rather than a lifetime appointment.
Being on the Supreme Court is a privilege, not a right. But being disqualified based on a false accusation
of a crime would be a violation of the fundamental right to fairness. Some will argue that the issue of Judge Kavanaugh’s ideological and professional qualifications should be merged with the sexual allegations and that doubts should be resolved against a lifetime appointment.
In some cases that would be a plausible argument. But it is too late for that kind of nuanced approach now, because these accusations have received worldwide attention. Judge Kavanaugh is on trial for his life. At stake are his career, his family, his legacy, and a reputation earned over many decades as a lawyer and judge.
If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision, and possible imprisonment. He may no longer be able to teach law, coach sports, or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a “convicted” rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.
The court of public opinion is different from a court of law, but it too is an important court. Wouldn’t anyone rather be convicted in a court of law of drunken driving—also a serious crime—than convicted in the court of public opinion of being a serial sex predator? Many would even rather go to prison for a year on drunken driving charges than be labeled a sexual predator for life. In a nation dedicated to fairness and due process, explicit constitutional rights often serve as a metaphor and guide in the kind of basic fairness we demand even in nonlegal proceedings. That model should operate here as well.
The Case Against the Democratic House Impeaching Trump Page 25
