Against Avenattiism
Dr. Christine Blasey Ford accused Judge Brett Kavanaugh of having sexually assaulted her at a party in the 1980s, when they were teenagers. She declares 100% certainty that he did it; he declares with equal certainty that he did not. In part because Dr. Ford’s memory of many of the details of the incident is uncertain, neither party can produce conclusive evidence to corroborate or refute the claim.
Accordingly, I can’t honestly and reasonably say I know what happened. Neither can anyone else, not that it’s stopping them. Public opinion on the subject has split along predictable partisan lines.
What troubles me about this controversy is not the prospect of Judge Kavanaugh being confirmed or not. Although his judicial philosophy largely corresponds to mine — that is, that Supreme Court justices should apply the same canons of interpretation to the Constitution that courts apply to literally all other statutory and contractual interpretation, namely, to give effect to the expressed intent of the drafters — that’s also true of dozens of other, equally accomplished candidates. The Republic would endure if Amy Coney Barrett or another judge were confirmed to the seat.
The greater danger here is the suggestion that it is illegitimate or immoral to even question certain accusations. That an accusation of sexual misconduct — if not immediately demonstrably false, and maybe even then — must be treated as presumptively true, and that the accused bears the burden of proving his innocence. This is consistent part of a larger, long-pedigreed progressive skepticism of the traditional conception of liberal democracy, running back a century or more: Equal laws and allegedly universal principles, it’s argued, tend to reinforce existing privileges and hierarchies, and should either be discarded, or at least have hefty exceptions hacked out of them, so historically underprospering groups can seize their rightful place in the sun. It’s not a completely insane idea (especially if you dismiss the concept of a universal, natural ethical law) but it’s wrong, and does real harm.
It’s ironic that people who’ve spent the last two years arguing that Donald Trump is tearing up long-established political and civil “norms” are now figuratively dynamiting the most basic foundations of the Western legal and evidentiary systems running back to when the bailiffs wore chain mail. As of yesterday morning, a USC professor was being blasted by protesters and, shamefully, criticized sharply by his craven dean for having the temerity to suggest that not all accusations are true, and that due process matters. Such quaint ideas get in the way of revolutionary justice, you see. You’re either for the righteous or against them.
I was raised in a church that makes some spectacular claims about its origins — claims of things which its founder openly admitted he would not have believed himself, had they not happened to him. In the course of my life, I’ve had to grapple with hard questions about what I believe and why. I discovered at a very early age that when people have a lot invested in a belief, they often react defensively and angrily when it’s questioned. Skepticism is viewed as a mark of disloyalty, bias, or lack of personal virtue — “You wouldn’t question this if you were a good person! You know it’s true — you just want to [get drunk, sleep around, surf on Sunday, etc.].”
So when I see “The only reason you don’t always and invariably Believe All Women! is that you’re a sexist pig rape apologist!”, I see the same brittle, anti-rational, tribal primate response I’ve seen all my life. The religious version deserved contempt then, and the secular version deserves contempt now. Your moral universe either has truth as its foundation, or it doesn’t. When it does, all that matters is the evidence. The worst person in the world can say 2+2=4, and it’s still true.
(There are a few very rare exceptions to the rule. Holocaust denial, for instance, requires a person to disregard such compelling evidence, that it’s a reasonable conclusion that when a person does, he’s doing so for the reasons people usually disregard that particular evidence, none of them good. But as a rule, “If you weren’t an awful person, you’d agree with me!” is a stupid, toxic argument.)
It’s argued that a Supreme Court confirmation process is not a “criminal trial,” and that presumptions of innocence and formal evidentiary rules and burdens of proof shouldn’t apply. No, it is not a criminal trial — but neither is it a mere “job interview,” either, as is being suggested. The broader principle that the Anglo-American legal system’s rules about process, burdens of proof, and evidence are designed to express, is the idea that a mere accusation is never enough. Neither government nor society at large should judge a person guilty without more evidence than an uncritically-accepted accusation can supply.
Just because a person won’t go to jail over a particular false accusation doesn’t mean he or she isn’t harmed. The U.S. Supreme Court has stated that an individual’s right to the protection of his own good name “reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.” On a spectrum running from “criminal trial” to “job interview,” the specific situation of a contentious Supreme Court nomination — especially in an age where factional passions run more than high enough to provide ample motives for charges to be made and uncritically accepted by many for reasons other than simply objective pursuit of truth — falls somewhere in between.
In an ordinary job interview of an ordinary citizen for an ordinary job, a person has a remedy for a false accusation: Sue the accuser for defamation. The accuser then has the burden of demonstrating the truth of his or her statement.
However, in the case of an accusation against a public figure, the First Amendment has been interpreted to require a switch in the burden of proof. Rather than the accuser having to prove the accusation’s truth, the public figure defamation plaintiff is required to prove not only its falsity, but that the accuser made it maliciously, knowing that it was false. As a practical matter, this borders on impossible (proving a negative, especially if an accuser is careful to frame his or her accusation in vague enough terms that external evidence can’t conclusively contradict it); consequently, defamation lawsuits by public figures are extremely rare.
My profession (litigation) is based on the premise that an adversarial process before a neutral factfinder (a judge or jury) is about as useful a mechanism for deciding disputed questions of fact as anything flawed human beings are likely to devise. In a courtroom (unlike, say, in modern journalism, or, increasingly, academia, which really should know better) you can’t just call opposing counsel “biased,” or cast aspersions on her for cross-examining your witness. That’s her job, and the whole point of the process — the thing that makes a genuinely adversarial proceeding useful to get at truths that one side or the other doesn’t want to come out.
The basic problem with accusations of specific acts of misconduct that are raised in the context of a political nomination is that, as the process is currently structured, there is no genuinely adversarial process possible to decide the truth or falsity of the matter. It’s not a trial, so formal, legally enforceable due process rules don’t apply — and yet the option of a defamation lawsuit that an ordinary, private “job candidate” could use to force an adversarial litigation of a potentially damaging accusation isn’t available, either.
So what do we do? When an accusation of a specific act of misconduct is made against a judicial nominee, and is disputed, how should we proceed?
First, it should be patently obvious that a Senate hearing is an absurdly inadequate method for the discovery of the truth in a disputed case. In Senate hearings, the “factfinders” are anything but neutral. They’re not even particularly smart. They’re grandstanding, meandering, and otherwise completely un-resembling how a litigator examines a witness. The accuser and the accused aren’t required to submit to the discovery process, where each party can demand that the other turn over anything likely to lead to the discovery of admissible evidence. (If the Kavanaugh-Ford affair were a civil lawsuit, in addition to the comprehensive investigation by the FBI into Judge Kavanaugh’s background, Dr. Ford’s background would be subject to equal scrutiny for anything that could contradict her story or call her credibility into question.)
There should be a fully adversarial process available to adjudicate accusations of specific acts of misconduct against political nominees. I’m still working on the details, in my mind, of how that could be accomplished. Ideally, the Senate could set a rule that it would not entertain, in its advice-and-consent role, accusations that are not subjected to an adversarial adjudicative process. One option might be to require accusers (as a condition of having their accusations entertained in confirmation hearings) to stipulate to be subject to a defamation lawsuit under the framework that would apply if the person accused were a private figure. However, the courts might very well not permit First Amendment defamation rules to be stipulated away.
Accordingly, maybe the Senate (which has Constitutional authority to set its own rules) could mandate arbitration before neutral arbitrators selected by the parties, as is common in private litigation. The Senate would still have the ultimate discretion to accept or reject the arbitrators’ findings (its Constitutional advice and consent responsibility can’t be delegated entirely away). But the additional credibility a fully adversarial process, adjudicated before neutrals selected by the parties, is one possible way around the partisan nightmare-circus hearings threaten to consistently become.
As for the specific accusation at issue here, I have only a few thoughts. First, and maybe most importantly — no, it is not correct that false accusations of sexual assault are vanishingly rare, in the 2% range. That talking point is thrown around widely and uncritically. It has literally no scientific or evidentiary basis that’s been identified. It may (it’s not clear where the 2% figure ultimately came from) derive from the percentage of criminal cases that result in exonerations. (That’s about the same percentage of all criminal cases that result in trial verdicts of not guilty. About 90% of cases are plea-bargained, and about 80% of those that go to trial yield guilty verdicts. 10% x 20% = 2%.) Nobody says “hey, most criminal defendants are guilty, so who needs trials?”. And of course not all accusations result in criminal charges. Many more allegations of sexual assault don’t — either because the accuser recants, or declines to pursue, or prosecutors don’t see enough evidence to prove a case. Not all of those instances (almost half of the total) are going to be false accusations, but in all likelihood, enough of them are that we can’t simply say “false accusations are rare, so someone’s who’s accused of sexual assault is probably guilty, so who needs trials?”
Second: I think the Julie Swetnick “Brett Kavanaugh ran a gang rape ring in high school” story, promoted by attorney Michael Avenatti, didn’t help the Democrats. As the saying goes, the absence of evidence is not evidence of absence — but with some things, it’s reasonable to expect that evidence of it would exist. The much more lurid accusations made by Avenatti’s client — of gross misconduct in the company of large numbers of people — were such that realistically, she should not have been the only witness to them.
I’ve seen arguments to the effect of “If you question Dr. Ford, that means you don’t believe me! I’m a survivor of sexual abuse too!” With the deepest compassion to survivors — no, it doesn’t mean any such thing. Whether 2% or 20% or 40% of accusations are false, says literally nothing about the merits of any specific case. Only your own experience, and the facts of it, are relevant to your experience.
Another thought: It’s been argued that Dr. Ford is a distinguished professor, not some nobody someone picked up dragging the proverbial dollar bill through a trailer park (as Bill Clinton’s fixers used to dismiss his “bimbo eruptions” as), so she has that much more credibility. That is a horrifyingly undemocratic, privilege-soaked argument, and it should be scorned off the public stage immediately.
Likewise, I see expressions of bias against Brett Kavanaugh because “everybody knows what jocks at elite institutions are like.” Three words: Duke Lacrosse case. “What everybody knows” about sweeping, generalized categories of human beings is called “prejudice,” and it stinks.
I literally see it argued, apparently without shame, that “X demographic got away with all kinds of awfulness for centuries; now it’s our turn.” If people are comfortable thinking that way, that’s between them and what remains among the smoking ruins of their consciences. Just let them think that far away from me.
As I’ve said, whether Brett Kavanaugh ultimately joins the Supreme Court is not what’s ultimately at stake here. We can either remember the good reasons for due process (and not eagerly look for excuses to depart from them), or we can let Avenattiism tear down more of civil society.