Putting aside, for a moment, discussions of sexual assault and the #MeToo Movement that were readily dismissed last week as “emotional mudslinging,” it is still critical to understand the standards and processes upheld by the Senate in Brett Kavanaugh’s confirmation hearings.
To insist that proof of guilt beyond reasonable doubt is required to disqualify Brett Kavanaugh as a Supreme Court nominee is grounded in misinterpretation of the Senate’s role in Supreme Court Justice confirmation.
“Guilt beyond reasonable doubt” is a standard upheld for criminal investigations, and rightly so. The burden on the legal system in a criminal case is the greatest one that exists because the stakes of what the defendant may be subjected to are high. However, the trial conducted by the Senate Judiciary Committee was not a criminal investigation.
The second paragraph of Article II, Section Two of The Constitution states that the role of the Senate is to provide advice and consent to the President when appointing a Supreme Court Justice. The Senate Judiciary Committee’s purpose was to investigate Kavanaugh’s behavior in order to inform their consent of the pick.
If the Senate Judiciary Committee were to find Kavanaugh unfit, the worst-case scenario would be that he remains part of a high-profile appellate court and another Supreme Court candidate from President Donald Trump’s list would be confirmed.
Therefore, to insist, as last week’s editorial did, that the Senate must find preponderance of evidence in order to justly dismiss Kavanaugh and maintain the integrity of the court, is misleading and incorrect. This argument conflates the processes of the Senate Judiciary Committee with the standards of a criminal investigation.
“A difference between the Senate Judiciary Committee and a criminal trail relates to the level of proof that should be required in each process,” said Doug Edlin, Colorado College political science professor and judicial scholar. “If there is even a 30 percent chance that judge Kavanaugh did what he is accused of doing, maybe that is reason not to confirm him as a Supreme Court Justice.”
Additionally, the inclination to reduce Dr. Christine Blasey Ford’s testimony to “hearsay,” in the eyes of the court, and to fixate on the need for objectivity and irrefutable evidence and corroboration, undermines the power of and legitimacy of her testimony as a survivor.
With an understanding of the legal standards upheld by the Senate, it is necessary to situate the Kavanaugh confirmation process in a cultural context and bring it into a broader conversation about the politicization of #MeToo Movement.
Focusing on whether or not Kavanaugh’s confirmation was really about #MeToo ignores the inextricable influences of the #MeToo on the proceedings and the people involved.
In response to Dr. Ford’s public sexual assault allegations against Kavanaugh, GOP leaders were quick to insinuate that men in America are in peril because of the #MeToo Movement. Expanding the movement past the scope of the Kavanaugh confirmation, the GOP pulled the debate into a conservative ethos with deliberate provocations appealing to the increasing threat felt by their middle-America, blue collar base.
Case-in-point: the Republican senator of South Carolina, Lindsey Graham said, “I’m a single white male from South Carolina, and I’m told I should just shut up, but I will not shut up.”
And, a few days later, President Trump said, “It’s a very scary time for young men in America … This is a very difficult time. What’s happening here has much more to do than even the appointment of a Supreme Court justice. It really does.”
After the allegations were made public, partisan opinion of Kavanaugh widened, according to FiveThirtyEight. Republicans were actually more likely to support the confirmation of Kavanaugh, precisely because of this perceived threat stoked by Graham and President Trump, demonstrating that #MeToo was tied to perception of Kavanaugh.
Perhaps this partisan support from voters proved hard for Republican senators to ignore, particularly Republican Sen. Jeff Flake of Arizona and Susan Collins of Maine who ended up supporting Kavanaugh’s confirmation after initially being on the fence.
Kavanaugh’s conduct in court should have been grounds enough to dismiss him as Supreme Court Justice, not to mention the probable chance that he committed sexual assault. However, the party-line nature of the vote suggests the GOP was more concerned with securing their top pick.
Rather than insisting on higher standards for burden of proof in the Senate Judiciary Committee, it is time that the GOP starts acting human again and listening to the voices of survivors.