How strong does the evidence against Kavanaugh need to be?

The allegation made by Christine Blasey Ford — that in high school at age 15 she was the victim of a sexual assault by a 17-year-old Brett Kavanaugh — has upended Judge Kavanaugh’s Supreme Court confirmation hearings. It has also left commentators and observers wondering what standards should apply to an accusation like this.

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It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.

What matters here isn’t law as much as politics — though not (or not just) partisan politics. Confirmation hearings are also about constitutional politics — the ongoing debate, involving both institutions of government and the polity, about what the Constitution means and requires.

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