The Weekly Sift

What might Brett Kavanaugh do
if he really were the man his supporters claim he is?

[The bulk of this article was written before a second accuser came forward. At this moment, it’s still not clear how her account will affect the process.]

The most insightful piece on the Kavanaugh nomination I have seen so far was written by Benjamin Wittes and appeared at The Atlantic. Wittes claims to know something about Kavanaugh.

I have known Brett Kavanaugh for a long time—in many different contexts. I am fond of him personally. I think the world of him intellectually. I don’t believe he lied in his Senate testimony. I don’t believe he’s itching to get on the Supreme Court to protect Donald Trump from Robert Mueller. I’m much less afraid of conservative judges than are many of my liberal friends. As recently as a few days ago, I was cheerfully vouching for Kavanaugh’s character.

But then Christine Blasey Ford accused Kavanaugh of attempting to rape her when she was 15 and he was 17. That allegation, Wittes says, is “credible” and “deserves to be taken seriously”. Kavanaugh’s supporters claim that there’s no good way to respond to an accusation like this and complain that the unanswerability of the charge makes it unfair. But Wittes takes that claim and goes somewhere else with it:

The circumstances in which he should fight this out are, in my view, extremely limited. I would advise him against letting Senate Republicans ram his nomination through in a fashion that will forever attach an asterisk to his service on the Supreme Court. Assuming she is not impugning him maliciously, Kavanaugh’s accuser, Christine Blasey Ford, deserves better than that. The Court deserves better than that. And Kavanaugh himself, if he is telling the truth about his conduct in high school, deserves better than to be confirmed under circumstances which tens of millions of people will regard, with good reason, as tainted.

The real burden of proof. Given how long ago the attempted rape is supposed to have happened and the haziness of the details, it shouldn’t be hard for Kavanaugh and his defenders to create reasonable doubt. But that’s not enough in this situation: It’s Kavanaugh who should bear the burden of proof.

The question before us, after all, is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

In other words: It makes sense to let ten guilty people go free rather than send one innocent person to prison. But if we’re talking about positions of high power, I would rather turn down ten innocent people than elevate one guilty one.

Of course, there’s a very real possibility that Kavanaugh might prevail simply because the Republicans have the political power to confirm him. That would get him onto the Court, but would be

a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice.

A scorched-earth campaign to impugn Blasey Ford’s credibility would leave a similar taint on the Court and on Kavanaugh’s reputation.

I would never say that no attack on Ford’s credibility could be appropriate; if Kavanaugh can produce some hypothetical emails in which she hatched the plot to bring him down, he certainly gets to use those. But an attack on Ford’s credibility that is not devastating and complete will only worsen Kavanaugh’s problem—and such an attack should worsen it.

Who pays the price? And so Wittes reaches the same point many of Kavanaugh’s defenders do: There’s no good way for him to respond to the accusation against him. But rather than rage at the injustice of that and focus their ire on Blasey Ford or Diane Feinstein or Democrats in general, Wittes calls on Kavanaugh to do what’s best for the country: withdraw.

Getting out does not mean admitting that Ford’s account of his behavior is accurate, something Kavanaugh should certainly not do if her account is not accurate. It means only acknowledging that there is no way to defend against it in a fashion that is both persuasive and honorable in the context of seeking elevation to a job that requires a certain moral viability. It means acknowledging that whatever the truth may be, Kavanaugh cannot carry his burden of proof given the constraints upon him.

It means accepting that it is better to continue serving as a D.C. Circuit judge than to play the sort of undignified games that Republicans are playing on his behalf.

There would be heroism in that path. I am reminded of the ending of Lev Grossman’s The Magician King, when Quentin gets banished from the magical kingdom he has just saved. “I am the hero,” he protests, “and the hero gets the reward.”

But Ember, the god who is banishing him, disagrees: “No, Quentin. The hero pays the price.”

If his Republican support in the Senate holds firm, Kavanaugh can get the reward of a seat on the Supreme Court. But there is a price to be paid in this situation, and if Kavanaugh doesn’t pay it the nation does, in the form of a diminished Supreme Court whose moral authority will always be questionable when it rules on issues of women’s and victims’ rights. There’s nothing heroic about that.

The second heroic path. Wittes argues that Kavanaugh should withdraw even if he is innocent. But there is a second heroic path available if he is guilty, or if he honestly doesn’t remember Blasey Ford or anything about the night in question: Tell the truth.

Many of Kavanaugh’s supporters have been skipping past his denials and arguing for forgiveness: He’s not the same man today that he was at 17. What he did then shouldn’t disqualify him.

That, I think, is a discussion the nation needs to have: What is forgivable? How long should a youthful mistake hang over someone who has lived an admirable life since? How admirable does that life need to be? Does some other kind of restitution need to be made?

But if we were to have that discussion, it shouldn’t just apply to Kavanaugh, or to people on one side or the other of the partisan divide. It should apply, for example, to immigrants who are deportable for something they did decades ago, but have done good work, lived good lives, and been a credit to their communities in the years since. It should apply to people serving long prison sentences for non-violent drug crimes, some of which were committed when they were not much older than Kavanaugh was. You can’t expect forgiveness for the people on your side while you apply eye-for-eye justice to those you disagree with or disapprove of.

Even if we want to have that discussion, though, we can’t as long as Kavanaugh insists on his complete innocence. It’s unreasonable to expect to reap the benefits of forgiveness while simultaneously painting your accusers as liars. (That principle would also apply to President Trump.)

Imagine if Kavanaugh went before the Senate Judiciary Committee and told the nation, “Here’s how I remember that night.” What if he told his story without lawyerly caveats, but just as a human being trying to get a difficult memory off his chest? Or maybe he could say, “I don’t remember the event Dr. Blasey Ford describes. But I went to a hard-drinking school, and things may have happened that I don’t remember. I feel terrible that she has had to carry such a memory all these years, and I am ashamed to think that I could have been the cause of it.”

After all the Bill Cosbys and Harvey Weinsteins we have seen, what a breath of fresh air that would be.

Who shoulders the risk? If Kavanaugh did throw himself on the nation’s mercy, what would happen then? I don’t think anyone knows. And that’s what makes the path heroic: Heroes take risks; they don’t push risks off on others. Blasey Ford took a risk by coming forward, and she has been paying for that decision. Kavanaugh could take much of that burden off of her. It wouldn’t make sense to threaten or abuse her any more, if Kavanaugh himself were taking her account seriously.

Instead, he would shoulder the risk of public judgment. Blasey Ford, the Senate, and the country as a whole would have to face squarely the issues of forgiveness and the passage of time, rather than consider them only as a Plan B for those who doubt Kavanaugh’s denials. That honest public debate would be a step in the direction of healing the wounds that the #MeToo movement has revealed. However it came out — whether Kavanaugh ascended to the Supreme Court, remained where he is, or left public life entirely — it would be a service to the nation.

We keep hearing from Republicans, Evangelicals, and Kavanaugh’s other defenders what a fine man he is. He has a chance to prove them right. But you don’t get to be a hero just by claiming the reward. You have to pay the price.