The Confusion of Relative Burdens

While Debra Katz, lawyer for Christine Blasey Ford, continues to toy with Two-Buck Chuck despite another of his deadlines having come and gone, as the media bizarrely announced Katz’s acceptance of the deal by her counteroffer to keep negotiating, the contentions surrounding Ford’s ability to “prove” her claims came into sharper focus.

A woman named Leland Keyser — who is believed to have been identified by Dr. Blasey as one of the five people at the party — told the committee through a lawyer that she “does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.” Two men said to have been at the party, Mark Judge and Patrick Smyth, have also told the committee that they have no recollection of the events.

There will be no corroboration by anyone Ford named as being present at the party that she was assaulted or that there was a party. The woman she alleges was present denies knowing Kavanaugh at all. 

The two elements of corroboration previously revealed by a reporter, not by Ford, offer negligible support, assuming they exist. A therapist’s note that she was sexually assaulted by an unnamed person, one of four, 30 years later provides no material corroboration. A polygraph, particularly without proof of questions asked and answered, is sorely lacking.

So Kavanaugh wins? No, no, no. Ford’s allegation is credible, in the sense that it is neither a physical impossibility nor so outlandish as to be dismissed by all rational people. Despite all that’s floating around out there, it remains possible. Does this make it unfair to Ford’s making her case that she’s not gotten the demanded FBI investigation, other witnesses won’t be called to attack the credibility (think Mark Judge) of their denial and air their unseemly youthful conduct. No, not that either.

As has been thrown back and forth from the outset, this isn’t a trial, but a confirmation hearing. While the reasoning surrounding basic precepts of jurisprudence remain as valid as ever, there are no rules per se. This is a political act, not a legal one. Ford has no burden of proof. Not a high one. Not even a low one. You might believe she should, but that doesn’t make it so.

To the extent the Senate Judiciary Committee, if it was actually open to any serious consideration on either side beyond going through the motions of holding a hearing, will consider evidence in reaching their decision, Ford need only come forward with her testimony sufficient to raise a question of sufficient concern that it impacts the the decision of the Committee. Her burden, to the extent it can be called a burden at all, is to make the senators think twice.

Ford can meet this burden without anyone else’s testimony, without any FBI investigation, and without any of the shenanigans currently being pulled, as far as the hearing is concerned. As for her standing in the court of public opinion, that’s another story entirely, but then there are no rules there either and it’s entirely outside the purview of governance. Mobs will be mobs, and that cuts both ways.

All Ford needs to is testify to what she alleges happened to her with sufficient crediblity to make senators supporting Kavanaugh say, “hey, this is sufficient to plant a seed of doubt in my head that I can support this individual for the Supreme Court.” This is the burden of coming forward, of raising a credible issue with competent evidence. That’s all Ford needs to do here, at least for confirmation hearing purposes. For public opinion purposes, who knows, but that’s an entirely separate issue.

At the Atlantic, Benjamin Wittes argues that the burden of persuasion falls on Brett Kavanaugh.

He needs to prove a negative about events long ago with sufficient persuasiveness that a reasonable person will regard his service as untainted by the allegations against him, and he needs to do so using only arguments that don’t themselves taint him.

As Wittes isn’t a lawyer, perhaps he can be forgiven the two errors in his formulation, both of which can be found in the phrase “reasonable person.” The first error is structural: it would be a reasonable senator. Confirmation isn’t by popular vote, so regardless of how us groundlings feel about the hearing, we get no say.

The second flaw is political, the reasonable senator. There is nothing about this confirmation hearing to which “reasonable” applies, and there is no senator who, in a quiet private moment, would be so unreasonable as to deny this. This is merely political war and neither side will defect unless it’s political suicide to do otherwise. Reasonable presumes some element of a fair, open mind, which can’t be found in Washington. Whether it can be found anywhere is subject to dispute.

And in this endeavor, Kavanaugh himself bears the burden of proof. This sounds like unjust ground to stake out in a society in which the accused is innocent until proven guilty. But in practical terms, Kavanaugh is the one who has to persuade the marginal senator to vote for him. He is the one who has to give Susan Collins and Lisa Murkowski enough confidence in him that they can vote to confirm believing they can defend their actions to a legion of angry voters. It is he, not Ford, who needs to count to 50.

This is why Ford is merely a witness. She can neither win nor lose. Only Kavanaugh can, and his loss isn’t punitive but beneficial. After Ford competently raises a doubt, Kavanaugh’s burden will be to persuade the Senate that they should confirm him nonetheless.

As for the court of public opinion, or as Wittes puts it, the “no-asterisk” standard, there is nothing Kavanaugh can do if there isn’t evidence of his innocence so conclusive that even the most hardened hater must concede that Ford’s accusations fail. It’s essentially impossible to make this showing, proving a negative, especially given the vagaries of the allegations. The extant certainty of the sides suggests that, for many, he will always be an attempted rapist no matter what he says, no matter what the evidence might show. That, too, will be his burden, but there is nothing to be done about it.

If Kavanaugh is confirmed, is the Supreme Court de-legitimized? No more nor less than it has been up to now. Kavanaugh remains one vote on the Court. If he’s in the majority, it’s because four other justices were in agreement with him and they are equally responsible for the outcome as he is.

The coin of the Court isn’t the teenage histories of its justices, but the strength of its reasoning. Nothing Ford says makes a rationale stronger or weaker. The question will be whether things Kavanaugh says make senators confident in their political futures.

21 thoughts on “The Confusion of Relative Burdens

  1. Billy Bob

    Maybe Ford just had a bad dream? Last nite, I dreamt my girlfriend was a sleeping camel. Seriously!

    Oh wait, maybe it was the comedian Bill Cosby who attempted the dirty attack? Wasn’t he seen in the neighborhood 35 years ago? Eyewitness testimony is notoriously unreliable. She misidenties the Kav, simpley. This is getting ridiculous. FineStein is going to have egg on her face, trust it. She will pay a price.

  2. Jim Tyre

    As Wittes isn’t a lawyer, perhaps he can be forgiven the two errors in his formulation

    Careful, Scott. Ben may not be a lawyer, but his black belt in taekwondo more than qualifies him to beat the crap out of you for accusing him of error.

  3. Hunting Guy

    Edna St. Vincent Millay.

    “Time does not bring relief; you all have lied
    Who told me time would ease me of my pain!
    I miss him in the weeping of the rain;
    I want him at the shrinking of the tide;
    The old snows melt from every mountain-side,
    And last year’s leaves are smoke in every lane;
    But last year’s bitter loving must remain
    Heaped on my heart, and my old thoughts abide.
    There are a hundred places where I fear
    To go,—so with his memory they brim.
    And entering with relief some quiet place
    Where never fell his foot or shone his face
    I say, “There is no memory of him here!”
    And so stand stricken, so remembering him.”

        1. Nick Lidakis

          But Thursday is gonna be a blast. Just you wait. They are gonna pull that white rabbit right out of that 10 gallon Senate hat.

      1. Billy Bob

        Sol is a weisenheimer. Forewarned is forearmed.

        Bill, didn’t I warn you about commenting on other commentaters? Prohibited undeterred under the Posse Comitatus Act of 1878. That is affirmative, Your Honor.

        This has turned out to be a faerly interesting thread, Admiral. So glad I went first. Now let the first be last. Ha.
        Only kidding! There are a few others we have not heard from. Maupin: MIA. McCloudy Day: MIA.
        Fubar showed: We are blessed. We can sleep soundly.

    1. Fubar

      Yesterday upon the stair
      I met a man who wasn’t there
      He wasn’t there again today
      I wish, I wish he’d go away

      When I came home last night at three
      The man was waiting there for me
      But when I looked around the hall
      I couldn’t see him there at all!
      Go away, go away, don’t you come back any more!
      Go away, go away, and please don’t slam the door

      Last night I saw upon the stair
      A little man who wasn’t there
      He wasn’t there again today
      Oh, how I wish he’d go away

      — William Hughes Mearns, “Antigonish”, for the play The Psyco-ed (1899).

      Later set to music by Bernie Hanighen, recorded by the Glenn Miller Orchestra with vocals by Tex Beneke. It reached #7 on Your Hit Parade in 1939.

  4. Jardinero1

    The saddest fact about politics, especially for Ford, is that the fight is never over. If Kavanaugh and Ford testify and enough Senators have enough cover to be persuaded to affirm Kavanaugh, or even if he is not affirmed, it still won’t be over. Two tasks will remain. The taint on Kavanaugh will have to be removed or reduced, this is the lessor task. The greater task is to make sure that no one ever bring this type of witness against a nominee in the future. Thus, after the hearing and the vote, it will be a necessity to destroy Ford’s reputation in the most savage and public way possible.

    1. SHG Post author

      They didn’t do that after Anita Hill, but then that could explain the current predicament. That said, I would strongly suspect they will never want to hear Ford’s name again. It just riles up the opposition. Either way, we shall see.

  5. B. McLeod

    Committee leadership is afraid to confront “#MeToo.” Little do these feckless senators realize, to the extent they fail to step up and counter this bullshit, they are actually legitimizing it. Far from buying peace, every one of them can expect to be confronted by their own “accuser” as The Terror takes its continued course.

  6. Mark Brooks

    Mr. Greenfield, I know my comment is “a little late in the day” for this blog. My excuse is that I am on “Jamaica Time” (wink). As a “reasonable person”, I believe, that even if Dr. Ford was to come out and say that her claim was false, that she did it for political purposes, there would be many that would say Kavanaugh still assaulted her.

    Mark Brooks

    1. SHG Post author

      Having the precedent of the Rolling Stone/UVA hoax and Mattress Girl, the retort is already available: “At least it started a conversation.” There’s an excuse for everything.

      1. Mark Brooks

        Mr. Greenfield, I was once the subject of a “smear campaign” that started in 1999 for bringing to light a serious problem that exists in Jamaica. This being that our agriculture was seriously affected by poor soil health. The government was very much a part of the smear, as well as the sugar cane research body. Several journalists also got into the act. In 2013, the then Minister of Agriculture, (who was the same Minister in 1999 who was involved in the smear) was big enough (he was physically big too !) to apologise to me in our Parliament. I realise that I am not to post weblinks, but I have no other way to show you this

        I wonder if any politician in the USA would do something like this ?

        Mark Brooks

      2. B. McLeod

        At least a few asshats openly argued that if Kavanaugh never met Ford, he nevertheless “surely had the experience” asserted in her accusations. (Because all Irish Catholic males at preppie schools do). This used to be called “stereotyping,” and was bad, now it is “wokeness,” and OK under various theories.

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