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Like many others, I’ve been avidly watching the Senate Judiciary Committee consider the nomination of Brett Kavanaugh to the Supreme Court. I thought the testimony of Professor Ford was riveting, and I thought the testimony of Brett Kavanaugh was both emotional and yet wanting. For example, when asked whether he wanted an FBI investigation of the new accusations against him, Judge Kavanaugh skipped around the question and refused to answer it directly. I couldn’t understand why he would say several times, “It’s up to the Committee to decide.” It seemed as if he were afraid that committing himself might open his testimony to accusations of perjury.

kavanaugh confirmation

I thought the testimony of Professor Ford was riveting, and I thought the testimony of Brett Kavanaugh was both emotional and yet wanting. 

After the long questioning on Thursday, September 27, and arguments on Friday, September 28, the Committee voted 11-10 along party lines to move the nomination to the full Senate. However, because Senator Jeff Flake (R-Arizona) indicated that he would vote against the nomination unless a final Senate vote were moved forward one week in order to permit an investigation by the FBI, President Trump finally ordered that investigation.

It seems to me that much of the panic and confusion could have been avoided if Flake, Susan Collins (R-Maine), and Lisa Murkowski (R-Alaska) had all taken the position a long time ago that they would vote against the nominee unless there were such an FBI investigation. Both Collins and Murkowski endorsed the FBI investigation, so they agreed with Flake. However, things were not nearly so organized. And, sadly, the entire confirmation process seems controlled by party politics.

The Senate is supposed to “advise and consent” to the President’s nomination of judges, and particularly Supreme Court justices. “The Senate's constitutional role of “advice and consent” is an essential check on the president's constitutional power to appoint executive and judicial branch officials. The Senate is charged with advising the president on his nominations and ultimately giving or withholding its consent.” If the Senators in the President’s party simply rubber-stamp his nominations, then they are not acting as a check on his powers.

On what basis should Senators review the qualifications and character of Presidential appointments to a high office? “In the law, the burden of proof and the burden of persuasion are related but distinct concepts that apply to the weight of evidence needed to make your case in court. The former is the more familiar one: beyond a reasonable doubt is the popular standard of proof that applies to the accused in criminal cases, while the lesser clear and convincing or preponderance of the evidence standards each apply in various civil contexts.”

But these rules do not apply to a Supreme Court confirmation hearing. As one author writes, the question is who has the burden of persuasion. Is it Kavanaugh or is it Ford? And how should the Senators apply that burden of persuasion?

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Let’s start with the principal question, which is whether Kavanaugh should be confirmed. Assume that we are speaking of the approach by an apolitical, dispassionate senator. That senator would look not just at what Brett Kavanaugh says about his own life, but also at what others say: Ford; Deborah Ramirez; Julie Swetnick; and most recently Lynne Brooks. And then the Senator would ask himself or herself, should Judge Kavanaugh be confirmed to the Supreme Court? The Senator would not require anyone to prove that Judge Kavanaugh was actually engaged in lying or illegal activity. Rather, the question is the amount of doubt about whether he was so engaged. If there is sufficient likelihood that he was so engaged, then the question is whether that amount of likelihood makes it wrong to entrust him with a lifetime appointment to a job with a lot of power and control over the country and its citizens.

In other words, the senator needs to weigh the importance of the job to which appointment is proposed, the nature of the negative activity of which Kavanaugh is being accused, and the amount of doubt as to whether he was so engaged in that negative activity.

Starting with the importance of the job, I would say that it is very important. Perhaps not as important as being president, but greater than being a senator or a representative. The Supreme Court makes very important decisions about our lives. It decided whether slavery or abortion was constitutional; it decided whether corporations could spend unlimited sums of money in our elections. These were decisions that not even the President could make. And we know that Kavanaugh is replacing Kennedy, who has been the “swing vote” between the conservative and liberal factions of the court for many years. So the job has very high importance.

Then what about the accusations? Kavanaugh has been accused by three different women of sexual aggression of the worst kind – and he has denied that such aggression has ever occurred, and he has done so under penalty of perjury. So if he were incorrect in what he says, he would be both a sexual aggressor and a perjurer. Either of those things would be a substantial block to his appointment. We cannot have a person who lies under oath repeatedly as a Supreme Court justice. And we cannot have a man who lies about his own sexual aggression against women be ruling on issues involving women’s rights.

So the final question is: how likely is it that Kavanaugh is lying? My own sense of the situation is that he is lying. I have listened to Ford’s testimony, and I found it very compelling. I have also listened to Lynne Brooke’s statements and likewise found them compelling. I have read a wide variety of articles and looked at various pieces of evidence, such as Kavanaugh’s high school yearbook. From these items I found it rather easy to conclude that during his high school and college years, Kavanaugh was a rowdy partygoer who was given over to drunkenness, even though he has denied this (and these denials are – each of them – lies under penalty of perjury). Overall, I would conclude that it is at a minimum as likely as not that Kavanaugh committed at least one if not more of the sex acts of which he has been accused. Please remember that he has sworn that he was a “virgin” until well after law school, so even one such act could turn that statement into perjury.

In other words, it is unnecessary to prove that Kavanaugh lied or was a sexual aggressor. Given the importance of job he is seeking, if it is at a minimum as likely as not that he lied under oath or was a sexual aggressor, it would be inappropriate to put him on the Supreme Court. In fact, I would suggest that if there were a 25% chance that he lied or was a sexual aggressor, he should not be confirmed. This is because being a Supreme Court justice is so important and because the possible crimes are substantial for such a position. And I think it is painfully clear that the 25% chance has been met.

The biggest problem, of course, is that our Senators are not dispassionate not apolitical. Virtually all of them are tied tightly to their political parties and cannot act in the way that the constitution suggests that they should be. In the present case, the burden is on the Republican senators to act appropriately. So far, they have not. My hope is that at least two of the cluster of Flake, Collins and Murkowski will become honorable. An FBI investigation may help them follow that path to honor.

michael hertz

Michael T. Hertz