The Burden of Kavanaugh
I’m a little late to the game, but I did want to chime in on the nomination and subsequent confirmation of Supreme Court Justice, Brett Kavanaugh. I mostly want to respond to the people — and I can only imagine that it is a small minority of people — that thought his confirmation process was somehow unfair. These are the loud, but ignorant minority that believed that Kavanaugh, when faced with credible claims of adolescent sexual assault, was denied his due process rights, and that he should have been innocent until proven guilty. So let’s talk about that.
The burden of proof is something that is talked about quite frequently in the legal field. In a nutshell, the burden of proof is borne by the party that asserts a claim. For example, the plaintiff in a civil lawsuit sues another party — the defendant — alleging that the defendant committed some act that caused harm to the plaintiff. It could be a car accident, or a slip and fall, or even a land dispute where a defendant is accused of violating the plaintiff’s mineral rights. In any event, the plaintiff — the one who is making a claim against another person — has the burden of proving that the defendant is liable for his damages. The same is true in a criminal trial, when the District Attorney, on behalf of the State, accuses a defendant of a crime — it is the D.A. who bears burden of proof. In either case, the party with the burden of proof has to present evidence that the other party committed the act they are accused of committing.
Sometimes, the burden of proof can shift. In a civil case, once the plaintiff presents enough evidence to make a prima facie case against a defendant, or sometimes on a particular issue in the case, the burden can shift to the defendant to produce evidence to rebut the plaintiff’s evidence. In criminal cases, the defendant is always innocent until proven guilty. However, if a criminal defendant makes an “affirmative defense,” such as claiming they acted in self-defense, then the defendant has the burden of proving that specific issue. Because they are making a claim.
When Dr. Christine Blasey Ford came forward with allegations of sexual assault against a much-younger Brett Kavanaugh, she rightly had the burden of proof. She was required to produce evidence, if she intended to make such a claim, against Kavanaugh. And I’ve heard people complain, after Dr. Ford testified in front of Congress, that she didn’t have any evidence that it ever happened. She didn’t have any witnesses. We can’t ruin this man’s life because some lady says he did something 36 years ago with no evidence. And Brett Kavanaugh denied everything. Clearly he won, so what’s the issue?
First thing to note, is that the testimony of Dr. Ford IS evidence. In fact, sworn testimony is the most common form of evidence. There is testimony in virtually every case that’s ever been brought and heard. And it is blackletter law that the testimony of a single witness is sufficient to convict a criminal defendant. If the testimony is credible, convincing, and unimpeachable, a lone witness can send a person to prison for life. Indeed, in a substantial percentage of criminal trials, there is only a single witness, and it’s usually a police officer. And Dr. Ford’s testimony was credible. It was compelling. And it was unimpeachable. She had nothing to gain by her testimony. In fact, her life was made significantly more difficult precisely because she decided to testify, and she knew it would be. Why would she do that? There is no evidence of any personal vendetta against Kavanaugh. So not only was her testimony credible, it seems very implausible that she would have fabricated her story, and risked her own liberty and comfort to perjure herself in front of Congress.
Regardless what you thought of Dr. Ford’s testimony, whether you agree with my assessment or not, Brett Kavanaugh also testified, and his testimony was objectively less credible, and much less compelling. Kavanaugh graduated from Yale Law School, was a law clerk for then-Judge, Ken Starr, and has been a judge on the D.C. Circuit Court of Appeals since 2006. In other words, he should be a well-trained, seasoned and professional jurist, yet his testimony was bordering on unhinged. He flip-flopped between blind fury and sniveling indignation. He completely lacked composure, and was aggressively evasive. He let us know exactly who he was in that hearing, and it sounded an awful lot like the guy described by Dr. Ford — a privileged, self-absorbed, beer-guzzling, frat-jock bully.
So, do I think he’s guilty? Well, I kind of do — but, to be honest, I kind of want to believe he’s guilty, and that’s not really fair. Objectively, I believe that probably something happened to Dr. Ford, and it sounds like Kavanaugh might have been involved. Maybe it didn’t happen quite like Dr. Ford remembers — memory is a tricky subject. But her testimony was enough to at least make a pretty good case. Would we be able to convict Brett Kavanaugh based on her story? Well, here’s the thing — we don’t have to convict Brett Kavanaugh. And this is the most important point: Kavanaugh was not on trial.
In a criminal case, the prosecution is required to prove the accused’s guilt beyond a reasonable doubt. That is the standard in a criminal proceeding. The accused is presumed innocent until proven guilty beyond a reasonable doubt. That is the highest standard of proof in the American legal system. It is the highest because it concerns the most fundamental rights of American citizens — life and liberty. A criminal charge can take away a person’s life and liberty, so we require the strictest burden of proof to convict. Brett Kavanaugh was not on trial for his life or liberty. He was not on trial at all.
In civil cases, when a person sues someone else for damages, they are required to produce evidence that proves, by a “preponderance of the evidence,” that the defendant is liable. One of the most striking differences in a civil and criminal trial is that, while a criminal defendant is presumed innocent until proven guilty, there is no corresponding presumption in civil cases. In civil cases, both parties are on equal footing. Thus, in a civil case, where the damages are usually monetary, the burden of proof requires only enough evidence to slightly tip the scales toward the plaintiff. Preponderance of the evidence means only “more probable than not.” And that means, even .01% more probable than not is enough to hold a defendant liable for civil damages.
So, if Judge Kavanaugh had been sued by Dr. Ford for assault, she would only have to convince a jury that there is a 50.1% chance that he committed the act, and she would get a judgment against him. A non-partisan, completely impartial observer would have a difficult time claiming that Dr. Ford’s testimony didn’t at least reach that much lower burden of proof, especially considering the completely hostile and unhinged testimony of Kavanaugh that followed.
But here’s the rub — Kavanaugh wasn’t on trial for money damages either. Kavanaugh was not being sued, or prosecuted for sexual assault. We were not deciding, based on the testimony of Dr. Ford, whether or not Kavanaugh should go to prison, or pay for Dr. Ford’s pain and suffering. What was being decided was whether or not he deserved to be given a lifetime appointment to one of the most consequential jobs in America. Dr. Ford’s testimony was being offered only as evidence of the character of Judge Kavanaugh, in a proceeding that was supposedly designed for exactly that purpose. Based on her credible and compelling testimony, was it reasonable to conclude that Brett Kavanaugh had the type of character worthy of a lifetime position on the Supreme Court of the United States. And if his partisan record as a D.C. Circuit Judge, his political appointments in the Bush administration and his emotional and unprofessional conduct during the Senate hearings wasn’t already enough to make that decision clear, the allegations of Dr. Ford and Kavanaugh’s perjurious responses thereto, should have sealed the deal. This man does not have the right temperament or demeanor to be a Supreme Court Justice.
And I say this from an objective, non-partisan position. I am beholden to neither Republicans nor Democrats. And any rational and impartial observer should come to the same conclusion — that Brett Kavanaugh, at the very least, is a politically biased, arrogant and hostile asshole. And those should all be disqualifying attributes for the highest court in the land. The only reason he was confirmed by the Senate, was pure, unadulterated party politics. Party over country. There were no redeeming characteristics on display at any of the Senate hearings, and the fact that Kavanaugh already had a record of complaints of political bias on the Circuit Court bench, should have removed him from consideration long before Christine Blasey Ford’s allegations surfaced. The fact that he probably committed perjury at least 7 times during the Senate hearings, should have resulted in his immediate withdrawal from consideration, if not outright criminal charges.
But this is another problem I have with the establishment politicians that have this country in a stranglehold — it’s the lack of integrity and honor, or even basic human decency that is constantly on display. If Brett Kavanaugh was an honorable man, he would have voluntarily stepped aside, so as not to politicize and cheapen the sanctity of the Supreme Court. But he didn’t, because he felt entitled to that job, and he didn’t care what he had to do to get it. Public service is no longer an aspirational endeavor but a competitive sport where the winner gets to punish the losers. It is a vindictive and childish game of ‘gotcha’, and the only winners are the rich and powerful who pay to watch their team make the other team cry. It is a disgusting reality that we now have to refer to Brett Kavanaugh as Justice Kavanaugh. We all lose by allowing his undeserved victory to stand.