And things were going so well. Well, okay, not well, but today’s obligatory presidential tweet isn’t going to improve the situation for Senate Republicans and Brett Kavanaugh. This Donald Trump message was fine:
Going after Democrats? Fair game indeed. But this tweet … not so much:
The best strategy in dealing with this issue and to defend Kavanaugh is to insist on due process and the traditional American reliance on evidence. The worst strategy for Republicans and the administration is to attack the accuser, especially on a point like this. It’s a fact that victims of sexual assault often do not report it, although there is debate over the scope of non-reported assaults. It’s certainly understandable why a 15-year-old girl drinking at a party with other teens might not want to tell her parents or anyone else of such an attack, especially since it stopped short of rape — and that would be true in Woke 2018 as well as in 1982.
The fact that a police report didn’t get filed, therefore, really doesn’t have much to say as to whether it occurred or not. A police report would have made establishing the incident easier, of course, and if Kavanaugh had been named in it, it likely would have come up in the six previous FBI background checks Kavanaugh has endured. However, its absence isn’t proof of the non-existence of the incident.
On the other hand, though, the mere allegation doesn’t mean that the incident happened either, as recounted by Ford or at all. The lack of a police report, combined with the decades it took for Ford to make the allegation and the lack of detail recalled by the accuser — no date, time, or place — does make it too vague for adjudication now. Furthermore, the testimonies of two of the three people named by Ford in her accusation that nothing of the sort took place also has significant weight, or should, in dealing with the allegation. Kavanaugh’s outright denial matches the testimonies of the people that Ford herself named.
That’s the proper answer to these allegations, and to people like Washington Post columnist Catherine Rampell, who seek to shift the burden of proof to the accused. “Why should we believe Kavanaugh?” Rampell asks, then makes an argument based on nothing to do with Kavanaugh:
But in my view, the accusation matters most because of what it implies about Kavanaugh’s general qualities not as a role model, or as a representative of his party, but what he might do as a judge.
Teenagers, particularly drunken teenagers, sometimes commit awful, cruel, even criminal acts — acts that can wound victims for decades. When possible, they should be held appropriately accountable. However, what provides more insight into a person’s moral rectitude is, arguably, not what he did as a minor but how he handles such sins once he has developed into a mature adult. Specifically, whether he takes responsibility and expresses contrition.
And if Kavanaugh is continuing — today, as a 53-year-old man — to deny a crime he in fact did commit as a drunken teenager, that casts doubt not only upon his character as a teen but also on his trustworthiness in other high-stakes matters today.
At present, there are reasons to doubt his credibility on this particular matter. Among them, somewhat ironically, is the improbable extensiveness of his denial, at least as relayed by Sen. Orrin G. Hatch (R-Utah).
This is a tiresome exercise in which Rampell assigns to Kavanaugh everything his defenders have said in public, rather than stick to what Kavanaugh himself has said. It also assumes guilt in absence of exculpatory evidence, the exact opposite of the values of justice in American culture. The question at the start of any accusation isn’t whether we believe the accused, but whether we believe the accuser, and until evidence is supplied, we presume innocence. Any other standard quickly leads to witch hunts, and that creates systemic risks to public service, not just to Brett Kavanaugh.
Stick to our values, and stick to the processes that produce measured and rational justice. Republicans have been wise to focus on process and rules of evidence rather than going after the accuser. They should stick to that strategy, too.