Anita Hill: Kavanaugh bears the "burden of persuasion" here

Uh, no, and I can’t imagine any other type of bare allegation that might be thrown at a nominee for a government position that would lead us to say the burden of proof was on the accused in answering it. Which is particularly foul given that the type of allegation being made in the present case involves a violent sex crime.

Process is important, but it cannot erase the difficulty of testifying on national television about the sexual assault that Dr. Blasey says occurred when she was 15 years old. Nor will it negate the fact that as she sits before the Senate Judiciary Committee, Dr. Blasey will be outresourced. Encouraging letters from friends and strangers may help, but she cannot match the organized support that Judge Kavanaugh has. Since Dr. Blasey and Judge Kavanaugh have the same obligation to present the truth, this imbalance may not seem fair.

But, as Judge Kavanaugh stands to gain the lifetime privilege of serving on the country’s highest court, he has the burden of persuasion. And that is only fair.

Hill’s distinguishing between the burden of proof in court and the burden of proof in the court of public opinion, i.e. the Senate. To take away someone’s liberty we require the state to prove its case, but to take away a plum lifetime appointment to which the nominee was never entitled to begin with? What’s wrong with making him bear the burden of proof?

Three things. Forcing the nominee to disprove an allegation or else be borked, even when no contemporaneous corroborating evidence is offered, is an engraved invitation for false accusers to come forward against nominees in the future. Whatever the truth of Ford’s account, it’s a cinch that the precedent created here would incentivize liars, particularly in an age of partisan hyperpolarization where Supreme Court confirmations already function as bloodsport. Presidents from either party would be foolish if they didn’t limit their SCOTUS shortlists to women candidates only to hedge against the risk of smears, which might suit progressives fine but wouldn’t seem fair to most of the country.

Second, and relatedly, some accusations — like this one, in fact — just can’t be disproved, particularly when the accuser hasn’t provided a time and place that the assault allegedly occurred to give Kavanaugh a chance to show he was elsewhere at the time. What would he need to do on Monday to meet the burden of persuasion that Hill blithely insists upon? John McCormack asked that question yesterday of Dem Sen. Richard Blumenthal and Blumenthal had no answer. There is no answer. Short of showing that he was out of the country for the duration of 1982, Kavanaugh’s stuck somehow trying to establish 36 years after the fact that he wasn’t in a particular room at a particular moment with a particular person, when he has the specifics of only one of those three variables to begin with. It’s ludicrous.

Third, Hill’s point that we needn’t have the same burden of proof in a confirmation hearing that we have in court is correct but too glib under the circumstances. It’s just not true that all Kavanaugh has to lose here is his Supreme Court nomination. He stands to lose his reputation, to the extent he hasn’t lost it already. His wife and kids might have absolute confidence in his innocence but I’ll bet few acquaintances do; we’ve all seen too many true-crime shows about mild-mannered Dr. Jekylls who turn into Mr. Hyde behind closed doors. (“He was always so quiet and friendly…”) Go back to this post from Monday: If Ford’s allegation is enough to keep Kavanaugh off the Supreme Court, why wouldn’t it justify removing him from the D.C. Circuit too? He’s not entitled to that position either. Presumably if he bears the burden of persuasion to win a High Court seat, he also bears it to keep his appellate seat. There’s no obvious reason why, if Ford’s claim is sufficient grounds on which to bork him, it shouldn’t also render him completely unemployable by the federal government. And yet I have the sense that few Democrats would be willing to take that extra step, whatever they’re saying right now about how we can’t have a rapist on the bench.

If the Senate votes him down because Kavanaugh can’t meet some foggy “burden of persuasion” that no one seems able to define, they’d essentially be rendering a verdict in front of the entire country that it’s at least more likely than not that he’s a sex offender. His children will spend the rest of their lives being told their dad’s a degenerate who should be locked up, as Alex Griswold notes. You think he has nothing to lose here except a Supreme Court seat?

Hill also thinks it’s a good idea to delay the hearings indefinitely while the FBI investigates, of course. No thanks, says Andy McCarthy. That smells like a set-up:

If Democrats had believed Ford’s story was convincing, and had followed the committee-hearing process in good faith, we’d have heard about it in July, and we’d have been hearing about nothing else since — especially during the hours upon hours that Kavanaugh answered aggressively provocative, politically loaded questions under oath. Senator Feinstein knew about Ford’s allegation all that time and never uttered a peep about it — not in face-to-face interviews with Kavanaugh or in her rounds of questioning at the hearing. And don’t tell me Feinstein had to stay mum to honor Ford’s desire for anonymity. There is good reason to believe Ford had no intention of remaining anonymous (hiring Democrat-activist lawyers, taking a polygraph, etc.). But even if Ford truly wanted to remain unidentified, Senator Feinstein could easily have questioned Kavanaugh about the purported incident without mentioning Ford’s name. That would have preserved anonymity while adhering to the hearing process. Instead, the Democrats’ ranking committee member contemptuously undermined the committee’s process, and now other Senate Democrats are following her lead…

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.

You know what the irony is? Kavanaugh already has the burden of persuasion for all intents and purposes. You and I are aghast watching Hill and Joe “Busy Hands” Biden propose the end of due process as we know it but that’s effectively how Monday’s hearing will operate (assuming it happens), even with Republicans running it. What, after all, would need to happen to get two Republicans to vote no on the nomination? Realistically, all Ford would need to show is that she sincerely believes her own story. No evidence is required, just absolute conviction, the more emotional the better. Are Jeff Flake and Bob Corker going to rubber-stamp Kavanaugh if Ford comes off as sincere, never mind that she can’t offer basic details of what happened and the third person who was allegedly in the room says he never saw Kavanaugh behave this way? Of course not. In court, the lack of hard evidence would mean an easy acquittal. In politics, Kavanaugh’s probably done. His fate is out of his hands and in Ford’s, however convincing he happens to be in his own testimony.