Coons: Absolutely it's on Kavanaugh to prove himself innocent

To paraphrase InstapunditThey told me if Trump won that it would end the norms governing American life … and they were right! In this case, the norm destruction has become surprisingly explicit. If Brett Kavanaugh wants to continue in public service, Senator Chris Coons (D-DE) tells MSNBC, then he “bears the burden of disproving these allegations.”

That’d be a neat trick:

Lest anyone think this clip takes Coons out of context, here’s the full exchange on this question from MSNBC’s interview:

Coons graduated from Yale Law, so it’s not as though he doesn’t grasp the Constitution. He just doesn’t think it applies outside of criminal prosecutions, apparently. His argument centers on the privilege of service on the US Supreme Court, as have similar arguments from other Democrats who have put it less baldly than Coons, requiring Kavanaugh to “answer” the allegations. Coons dispenses with that by demanding not just an answer, but that Kavanaugh affirmatively disproves allegations before winning confirmation to the bench.

That presents Kavanaugh with an impossible burden: proving a negative. How does Kavanaugh prove these incidents didn’t take place, especially more than three decades after the alleged fact? How does Kavanaugh prove he wasn’t in a room that’s not been specified, on a date that hasn’t been given, at a party to which three other claimed witnesses either say didn’t happen or that they’ve never even been in the same room with Kavanaugh? In regard to the Ramirez allegations, perhaps Coons can explain how anyone can disprove an allegation that required outside intervention by a former Democratic officeholder over six days to generate the recalled memory of Kavanaugh’s presence? The former defendants in the McMartin Preschool hysteria might be interested in that answer, too.

It’s not that public service requires proof beyond a reasonable doubt for disqualification. However, any allegation made should have at least some corroborative proof, not just the allegation and hearsay about the accuser’s character. Otherwise, literally no one is safe from unsubstantiated allegations, and public service will get left to those whose ambitions are so obsessive that they don’t care about their public reputation as they try to grasp it:

Former Vice President Joe Biden argued explicitly for this standard whenever allegations involve prominent men. “You’ve got to start off with the presumption that at least the essence of what she’s talking about is real,” Biden told reporters on Monday, “whether or not she forgets facts, whether or not it’s been made worse or better over time.” This, however, sets up a dangerous double standard for public service that presents a threat to rational governance as well as to our tradition of justice.

Shifting the burden of proof on Senate confirmations, appointments, and elections changes all the incentives for public service. If we are not to evaluate claims on “facts” in order to determine whether the “essence” actually is “real,” then what should form the basis of our evaluation? Whether or not we like the accused? Which party does he or she represent, or which party appointed him?

This is not a recipe for justice, but instead an environment for bare-knuckled politics and a breeding ground for a return to Salem circa 1692. Such an environment will repel men and women of goodwill and good character from public service, incentivizing only the most insensitive and impervious personalities to choose to serve. That will lead to even further degradation of public discourse and an erosion of trust in institutions, which will make witch hunts and smear campaigns even more likely.

This is a principle worth defending — that public allegations of wrongdoing require some level of evidentiary substantiation before “belief” enters the picture. Will Senate Republicans rally around that principle? Maybe, maybe not:

“Once we get a chance to have a hearing, then we’ll figure out where we go from there. I think our members are taking this very seriously,” said Sen. John Thune of South Dakota, the No. 3 Republican. “Most of our members are going to wait ‘til Thursday. … Thursday is kind of the key day in this.”

“Let’s wait and see what happens on Thursday. I am very supportive of Judge Kavanaugh, but I want to hear her testimony,” added Sen. Shelley Moore Capito (R-W.Va.). …

“I’m eager for the hearing to take place this Thursday and hear from both Judge Kavanaugh and Dr. Ford,” Collins said. “I have not made a decision.”

“As with any allegation out there, it is our responsibility to look into it and treat allegations with the serious consideration they deserve,” Murkowski said.

And it’s not just those four Republicans who are open to being convinced either way. Several other GOP senators said on Monday that their votes will be determined by how Ford and Kavanaugh perform before the committee.

That’s not entirely unfair, but it sets up the decision as based on who delivers the best TV performance. It should rest on whether these allegations have any evidentiary support whatsoever. Without that, Brett Kavanaugh should be evaluated based on his professional life and his work on the appellate court. Anything else will set up incentives for character assassination that both sides will live to regret.

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David Strom 12:01 PM on October 07, 2022