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.
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.