the law

Brett Kavanaugh and the Burden of Persuasion

Do you believe me? Photo: Chip Somodevilla/Getty Images

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.

Because Supreme Court confirmation hearings aren’t trials in a court of law, none of these burdens of proof really apply to Brett Kavanaugh, Donald Trump’s embattled nominee to replace Justice Anthony Kennedy. Republicans in the Senate Judiciary Committee and partisans who at one point chanted “Lock her up” would rather convince the American public today’s hearing is akin to a courtroom: Give Kavanaugh due process. He’s innocent until proven guilty. Let the accuser, Christine Blasey Ford, be the prosecutor of her own case, which she must prove by removing any reasonable doubt that the judge, as a drunk teenager, attempted to sexually assault her at a party in 1982.

This is nonsense. All spin aside, and Republicans have been spinning, the reality is that senators can decide for themselves what evidence about him, and how much of it, matters for his elevation. Without considering Kavanaugh’s recent controversies, for example, red-state Democratic senator Claire McCaskill said last week she’d be voting no on his nomination — the chief concern in her mind were Kavanaugh’s extreme views on campaign finance and the role of money in our elections. And that was that.

Her colleagues are just as unbound by legal rules. In fact, very little, if anything, of the American legal system translates to the crucible of a Senate confirmation, where nominees can be weighed and grilled about embarrassing episodes without regard for due process or rules of evidence or procedure — a nominee can’t even consult with his or her attorney if a question appears to be unduly prejudicial or beyond the scope of the proceeding. It’s a political process, so pretty much anything goes. And the nominee must answer accordingly. So must Ford.

Therein lies the trouble for the all-male Republican caucus in the committee, and the reason they’ve enlisted, as Mitch McConnell inartfully put it, a “female assistant” to do the work for them: Rachel Mitchell, a sex-crimes prosecutor from Arizona, has been handpicked to undermine Ford’s credibility and possibly boost Kavanaugh’s innocence claims. Which underscores the farcity of Republicans’ legalistic gambit: Mitchell won’t be there to look out for the alleged victim, like any other normal sex-crimes prosecutor, but instead will grill Ford to atone for the optics of not having a single female senator in a committee faced with a credible allegation of sexual misconduct. This is gender politics all the way down.

It is the extralegal nature of Thursday’s session, without a doubt a watershed moment in the #MeToo era, that Chuck Grassley, the committee chairman, can get away — and get away he has — with lots of things. Not calling for an impartial, nonpartisan FBI investigation. Or declaring that letters from high-school buddies or acquaintances of Kavanaugh suffice to rebut Ford’s detailed accusations. Late on Wednesday, with only hours to go before the hearing, the Judiciary Committee began releasing transcripts of interviews Kavanaugh had with Senate investigators looking into other allegations since Ford went public — including those of Kavanaugh’s Yale classmate Deborah Ramirez and of Julie Swetnick, who threw gasoline on the judge’s troubles on Wednesday by coming forward with a sworn declaration that he had witnessed and participated in the equivalent of a gang-rape ritual. As in his Fox News interview, Kavanaugh claimed innocence, and with respect to Swetnick, he said her accusations seemed taken “from the Twilight Zone.” The same goes with the Republican release of other anonymous claims, dating back to the ’80s and ’90s, which no doubt are meant to cast aspersions on all allegations against Kavanaugh, including Ford’s. Desperation seems to be setting in.

None of these tactics would ever fly in the courtroom, let alone be admissible to prove anything. Less so in the case of Ford, who has provided enough details to at least prompt the committee to dig deeper — such as subpoenaing Mark Judge, Kavanaugh’s Georgetown Prep classmate and someone who has gone into hiding since Ford came forward. Republicans’ incuriosity about him speaks louder than a thousand Kavanaugh denials; they’ve accepted the risk that this and other investigatory steps aren’t necessary, and the voting public, in due time, can make them pay for that choice.

Which brings me back to a concept that I have yet to explain: the burden of persuasion. Rather than determine someone’s guilt or liability, all this burden does is establish which side carries the responsibility of convincing the factfinder. Here’s where, unlike a trial, the tables again should be flipped: It is not Ford’s duty to make her case to the American public about Kavanaugh. “It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court,” she wrote in prepared testimony ahead of today’s hearing. “My responsibility is to tell the truth.”

In view of Kavanaugh’s credibility deficit thus far — not just with respect to his proclaimed past as a choirboy and champion for women, but on a host of controversies that have called his integrity and capacity for truthfulness into question — he is the one who has a long credibility gap to bridge. The burden of persuasion is his to bear.

So as you gird to witness this important moment in history — for the country, for the Supreme Court’s future, for Washington’s greatest reckoning with sexual assault since Anita Hill was disbelieved and maligned — keep in mind that this political nontrial is not Ford’s to lose. It is Kavanaugh who has a lot of convincing and explaining to do.

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