Blog Ipsa Loquitur

Published on under No, I Am Bart O'Kus

We’re days away from the floor vote to determine whether Brett Kavanaugh will be the newest justice on the Supreme Court, and here’s the best of what I’ve read about last week’s hearing. Professor Rebecca Hamilton, writing for NYU Law School’s Just Security blog:

Dr. Christine Blasey Ford threw her life into turmoil yesterday to testify before the nation. Asked by Sen. Dick Durbin (D-Ill.), with what degree of certainty she believed that Judge Brett Kavanaugh assaulted her, she responded: “One hundred percent.” Every senator voting to confirm Kavanaugh to the Supreme Court should be pushed to answer one question: Do you believe her? […]

Testimony is evidence. If Ford is credible, as she is largely acknowledged to be, her testimony should be given the evidentiary value it deserves. In most U.S. courts, credible testimony alone can be enough for a criminal conviction. And for good reason. In sexual assault cases, the perpetrator and the victim are often the only ones present at the scene of the crime. If credible victim testimony did not stand as evidence, then there would be even less justice for survivors of sexual assault than there is already. (Also important to keep in mind, is that confirmation hearings are about assessing the fitness of a nominee – a task involving a significantly less demanding standard of proof than that required in a criminal, or even civil, trial.)

There are a really important few points going on here, on two different bits of the law. The first is that the things that witnesses (including victims) say is evidence. Juries are charged with determining what happened. Each side presents evidence of what happened, in the form of records and testimony, and the jury has to figure out who to believe about what. Defendants can be convicted on the testimony of a single witness, if the jury finds that witness credible enough.

The second point is the standard of proof. In a criminal trial, the defendant is innocent until the government proves his guilt beyond a reasonable doubt. That doesn’t mean the jury is 100% certain the defendant is guilty, but it does mean something like 95% or 98% certain; the only doubts the jury has are unreasonable doubts, like an evil doppelgänger or time-traveling super villain framed the defendant. If I’m ever on a jury, and that’s my only doubt, I might be comfortable voting guilty.

In a civil trial, the defendant isn’t going to prison no matter how poorly they defend themselves, so the standard of proof is lower. Civil cases are things people sue one another over that aren’t necessarily against the law, like breach of contract, or slandering one another. A civil plaintiff wins if they demonstrate by a preponderance of the evidence that the defendant is liable for whatever lousy thing the two sides are fighting over. As Black’s Law Dictionary puts it: “the jury is instructed to find for the party that, on the whole, has the stronger evidence, however slight the edge may be.” That’s not 98% or even 60%: the preponderance of the evidence standard is literally the tiniest quantum of proof beyond 50%.

And this is Professor Hamilton’s final point, which I think a lot of folks are gliding right past: this isn’t a trial. “Innocent until proven guilty” is for criminal trials, and “he’s more likely to be telling the truth” is for civil trials. This is a Senate Judiciary Committee deciding whether or not Judge Kavanaugh is fit to receive a lifetime appointment on the Supreme Court. The standard is way lower than in a trial – any trial. And as we’re about to see, it’s not just the sexual assault claims that make this guy unfit.

Save your fork; there’s lie

Nathan J. Robinson’s 10,000 word epic on why Kavanaugh should not serve another day as any kind of judge  covers all the dodges and misdirections and white lies in Kavanaugh’s testimony. No, really, all of them. It’s the most detailed deconstruction of the problems with Kavanaugh’s testimony you can find:

He went before the United States Senate and showed total contempt for his vow to tell the truth. He attempted to portray a highly esteemed doctor as a crazy person, by consistently misrepresenting the evidence. He treated the public like we were idiots, like we wouldn’t notice as he pretended he was ralphing during Beach Week from too many jalapeños, as he feigned ignorance about sex slang, as he misread his own meticulously-kept 1982 summer calendar, as he replied to questions about his drinking habits by talking about church, as he suggested there are no alcoholics at Yale, as he denied knowing who “Bart O’Kavanaugh” could possibly be based on, as he declared things refuted that weren’t actually refuted, as he claimed witnesses said things they didn’t say, as he failed to explain why nearly a dozen Yale classmates said he drank heavily, as he invented an imaginary drinking game to avoid admitting he had the mind of a sports jock in high school, as he said Ford had only accused him last week, as he responded to his roommate’s eyewitness statement with an incoherent story about furniture, as he pretended Bethesda wasn’t five miles wide, as he insisted Renate should be flattered by the ditty about how easy she was, as he declared that distinguished federal judges don’t commit sexual misconduct even though he had clerked for exactly such a judge.

But for my money, Robinson’s point on why this high school stuff is so relevant is his best argument:

Some Republicans tried to suggest that scrutiny of Kavanaugh’s yearbook was grasping at straws. Here we are trying to make sense of nonsense scrawlings from some silly kids in a musty old book. Here’s Lindsey Graham: “if we want to sit here and talk about whether a Supreme Court nomination should be based on a high school yearbook page, I think that’s taken us to a new level of absurdity.” But as with Ford’s allegation itself, what’s relevant is not just what happened then but what is happening now: Kavanaugh is lying. The evidence from the yearbook bears on the credibility of his statements about his character in high school, and Kavanaugh himself made his character a central part of his defense and his argument for why Ford should not be believed. Kavanaugh’s supporters can play dumb and suggest examining the yearbook is absurd, but being in the keg club and objectifying and demeaning women is evidence that his “I was always either at the soup kitchen or buried in my schoolbooks” defense is an act.

Realistically, I understand why Kavanaugh lies constantly. If he admits to binge drinking until he blacked out, there are episodes he by definition won’t be able to remember. Mounting a defense when you don’t know your own alibi sounds pretty tricky. Instead, Kavanaugh has to lean on this ‘choir boy’ defense, but that involves all sorts of lies that don’t pass the straight face test. He left quite the paper trail of his youthful indiscretions: now, his explanation for his famously weak stomach, devil’s triangle, and Renate Alumnius are all absolutely ridiculous.

And here’s the thing: remember how witness testimony is evidence? If there are only two witnesses, and one lies constantly about all sorts of ridiculous and demonstrably false stuff, while the second witness… doesn’t, how do you think the evidence shakes out? When the witnesses disagree, which one would you believe?

a vast left wing conspiracy

Even if you think Kavanaugh’s telling the truth about his teenage years (he’s not), and even if you didn’t find Ford’s testimony compelling (it was), there are other reasons the Senate might not approve Judge Kavanaugh. Compare the Chief Justice Roberts’s “aw shucks, Senator, a judge is like an umpire: you don’t take sides, you just call balls and strikes” with whatever the heck this is:

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation,” [Kavanaugh] said. He referred to Democrats calling him “evil.” Then he turned directly to Democratic senators on the committee. “You sowed the wind,” he said, and “the country will reap the whirlwind.” He accused Democrats of “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” He even suggested it was “revenge on behalf of the Clintons” — referring to his work on special counsel Kenneth Starr’s investigation of the Clinton administration in the 1990s. Later, he later directly addressed the senators again. “Thanks to what some of you on this side of the committee have unleashed,” he said, gesturing to his right, “I may never be able to coach [girls’ basketball] again.” He added that he loves teaching law at Harvard University, but “I may never be able to teach again.”

He’s in a league of his own.