Judge Kavanaugh's future record on religious liberty cases will likely resemble that of Justice Kennedy.
Obviously, this is one of those issues that just sucks the oxygen from all other political issues at the time. While the country is strongly divided, it is worthwhile analyzing the matter to get clearer on what is going on. One aspect of the controversy is that there are multiple levels at work here. To me, there are at least three separate issues that are mixed together.
The Underlying Factual Issue: What Kavanaugh Did—If Anything—to Ford 36 Years Ago.
This tends to be the main focus of some but not all discussion. There are key matters of contention here. On the one hand, Ford has not provided much in the way of details and those details she has offered, such as who was at the party, have not been corroborated. Most importantly, Ford’s close friend Leland Keyser does not remember the party and says she never met Kavanaugh.
On the other hand, it is often said that Kavanaugh has more incentive to lie than Ford. His incentive is to get a Supreme Court seat. Her incentive is less clear, but presumably it would be to stop a conservative from being appointed to the Court. Another possibility, of course, is that Ford may have mistakenly identified Kavanaugh. Finally, many people say that Ford came across as quite credible during her testimony.
The Political Aspects of the Controversy
Apart from whether Ford’s allegations are true, the politics of the situation are inescapable. Republicans argue that they were about to confirm Kavanaugh, and at the last minute the Ford allegations were leaked to the media. If Feinstein thought this was a serious allegation, which it obviously is, she should have made it public in July. Waiting until the last minute suggested an attempt to delay the process until after the Senate elections. Ford’s—or Ford’s lawyers’—apparently false claims about her unwillingness to fly are more of the same.
Democrats respond that Feinstein was merely respecting Ford’s request for privacy. But when the letter leaked, Feinstein did not even attempt to find out who had leaked it.
Democrats tell a different story. Mixing in the first issue, they argue that the Republicans just want to confirm Kavanaugh ahead of the Senate elections, irrespective of whether Kavanaugh actually assaulted Ford.
The Appropriate Procedures for Evaluating Such Claims
A third issue is how allegations of this sort should be handled. One can argue about this as well. One aspect involves the burden of proof: should it be a preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt? Another aspect is whether such an old charge should even be considered. If this were a court of law, a statute of limitations would prevent the charge from even being considered more than a couple of years after it occurred. The reasons for such statutes are obvious from this context—the difficulty of proof and the unreliability of memories after so many years.
In the debates about these matters, people focus on one level or another, or move from one level to another without acknowledging that they are doing so. But these issues are distinct.
For example, imagine that a Republican believed that the issue should never have been heard (appropriate procedures: based on an imagined statute of limitations argument); that the Democrats behaved in a hypocritical and politically oriented matter, exploiting a serious charge (the political aspects of the controversy); but that Ford’s allegation is more likely than not to have been true, despite the difficulties of proof at this stage (the underlying factual issue). How should that Republican evaluate the matter and which way should that person want the Senate to vote? It is hard to say.
One can play out similar problems by combining different positions on each of these issues. Ultimately, the multiple levels of the controversy and the failure to draw distinctions between them clearly feed into the tribal aspects of the controversy. God help us.