Brett Kavanaugh: The Standard For Confirmation Is Not the Standard For Conviction

In my gut, I don’t want to see Brett Kavanaugh confirmed—and not just because Donald Trump wants him on the Supreme Court—that was just the first strike. Listening to the compelling testimony against him was the final nail in the coffin. But my gut was not without its heartburn for feeling that way. I disliked myself for judging a matured man for the offenses of his youth. Even so, his declaration (“I am innocent of this charge”) sounded too much like the famous “I did not have sexual relations with that woman” line. This is not meant to read something into his statement that was not said! Quite the contrary, I think both statements stand for exactly what was said! Every single man on planet earth knew exactly what President Clinton meant by his carefully chosen words—that his penis had not entered her vagina—and he was not lying regardless of what the WASP conservative females claimed. But to me, Kavanaugh’s lead-in with “I am innocent . . .” sounds to me like he is couching this declaration with an implied (but obviously unsaid)  . . . in the eyes of the law . . . qualifier. The first thing that came to my mind when he declared his “innocen[ce]” was that he considered himself a youthful offender back then and therefore is “innocent” today. Equally palpable is a sense that he claims “innocen[ce]” today because “innocent” is the legal presumption until one is proven guilty at a trial by jury.

So did I think he in fact assaulted Christine Blasey-Ford? Yes, I did.

Did I think that an offense of his youth should disqualify him some thirty-plus years later? Not necessarily . . . and that is what caused my heartburn.

Today, however, I have a new take on it in the wake of Senator Susan Collins’ (R-ME) forty-minute speech on the Senate floor. It sounded to me as though Senator Collins also believes that Kavanaugh in fact perpetrated the alleged offense but that she (and she a woman no less!) justifies her endorsement on the basis that the evidence would not be sufficient to convict him if a trial had taken place. But this logic has a problem. See, if Kavanaugh had been tried and convicted, that would have disqualified him from service as a judge at any level even though the facts be ancient history. So how then is it any different if he were never tried? A conviction should not ensue lest an offense be found to have occurred. Yes, the disqualification flows from the conviction, but the conviction flows from the offense. Thus, disqualification does not flow at all without the offense. So if I/we am/are convinced that the offense in fact occurred, yes Kavanaugh should be disqualified from service as a Supreme Court justice. I do not suggest that we abandon the criteria of conviction but revoking one’s liberty and denying one’s confirmation are wholly different matters. I guess what I’m saying is that, as harsh as it is to hold a person accountable today for the unconvicted offenses of one’s youth is unpalatable, but I just can’t see the lack of a conviction as being the bright-line that Senator Collins would make it out to be.


N.B. – it flows naturally to ask why Kavanaugh should be permitted to continue serving as a federal judge in light of the foregoing. I think that he should not have been confirmed for any federal judgeship but since he was confirmed (albeit in ignorance of what is now known), it would seem that federal judges ight only be impeachable for conduct occurring while in office. Now, if it can be proven that Kavanaugh perjured himself before the Senate then that would be basis for impeachment, but short of that his current judgeship would seem to be safe.

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