Kavanope Indeed.

Over the traumatized voice of Dr. Christine Blasey Ford, Republicans have put a partisan conspiracy theorist onto the Supreme Court.

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By Michael Hu

After an unusually emotionally charged month even by the standards of the current political climate, Brett M. Kavanaugh was voted and sworn into the Supreme Court on October 6, 2018. His ascension followed several credible sexual assault allegations against him and an emergence of an image of him as a deeply dishonest and questionable individual.

It’s a damn tragedy on so many levels.

Dr. Christine Ford first said that Kavanaugh had assaulted her in 2012, when he was a federal judge of high enough stature that he was considered, as she noted at the time, a potential Republican Supreme Court pick; she came out with her story to her husband and her therapist in couples therapy. After Kavanaugh was reported to be on President Donald Trump’s shortlist for potential Supreme Court nominees in July 2018, she contacted her congressperson, Anna Eshoo, with the allegation; upon Kavanaugh’s nomination, Eshoo met with Ford and the two decided to bring the matter to Dianne Feinstein, California’s senior senator. At Ford’s request, Feinstein kept the allegation under wraps until it was leaked to The Intercept (and not by Feinstein or people associated therewith).

Following The Intercept’s report, Ford decided to go public, and after a week and a half, she and Kavanaugh both testified in front of the Senate on September 27. Her testimony was compelling and deeply disturbing, and she showed visible trauma and utter certainty about the identity of her assailant.

None of what Ford said would be enough evidence to convict Kavanaugh in a court of law―not even close. Though it is not the case that Ford had no evidence―testimony is evidence―it is absolutely the case that Kavanaugh was not proven guilty and that, in the eyes of criminal law, people are innocent until proven guilty. This idea, that people should be seen as innocent until proven guilty beyond a reasonable doubt, is appropriately called the reasonable doubt standard.

But the reasonable doubt standard is a principle of criminal law and not a general, all-purpose truism; it protects innocents, such as the targets of government persecution. The idea behind it is that it would be better for the government to let 10 guilty people go than for the government to jail even one innocent one. So, at the risk of letting some wrongdoers go, we apply the reasonable doubt standard. It’s a thumb on the scale of justice in favor of the accused.

But not being on the Supreme Court is very different from being in prison, and the standard to which Supreme Court nominees should be held is very different from the standard to which the criminally charged should be held. The stakes in the court of public opinion are entirely unlike those in the court of criminal law, so its rules are, rightly, different. Indeed, if the standard for accused Supreme Court nominees can be phrased in “x until proven y” terms, it is the very opposite of the reasonable doubt standard: guilty until proven innocent. It would be better to keep 10 innocent people off the Supreme Court on trumped-up charges than to put one sexual assaulter on. If a Supreme Court nominee faces a credible allegation of sexual assault and gives an equally credible refutation, the right thing for senators to do is to vote against the nominee. Though that principle may open the door to politically motivated false claims of sexual assault, having some innocent people deprived of Supreme Court seats would be a small price to pay for a culture that supports sexual assault victims.

As it happens, though, that was not the situation here. While Ford was and continues to be highly credible, Kavanaugh lost credibility at his hearing on September 27 and has only continued to fall in credibility since then. Before the allegations came out, I liked Kavanaugh a lot―so much that I wrote an article in which the first half could have been set aside and published as its own pro-Kavanaugh piece. After the allegations came out, I saw no reason to disbelieve Ford, but I also saw no particular reason to disbelieve Kavanaugh, of whom my impression was still otherwise positive.

That changed at the hearing.

I am not referring to Kavanaugh’s teary bluster and outrage. If he is, in fact, innocent, it is a reasonable emotional reaction. I do not expect anyone, even potential Supreme Court Justices, to be able to calmly deal with false, life-destroying allegations. I am referring to how he talked about the allegations; he described them as “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, [and] revenge on behalf of the Clintons.”

Having made this shocking claim, Kavanaugh did not provide anything in the way of evidence to support it. Indeed, the only times the Clintons came up again in the hearing were when Kavanaugh was discussing his time in the Ken Starr investigation and when Democratic senators referred back to Kavanaugh’s conspiracy-mongering. Kavanaugh did not explain how he knew that Ford’s allegations were the product of a left-wing plot or where he was getting his information. He simply made an outrageous and uncorroborated claim and let it sit.

That behavior is particularly unbecoming of a potential Supreme Court Justice. Of all the qualities important to a Supreme Court Justice―impartiality, wisdom, legal knowledge, concision, loyalty to the Constitution―none is so fundamentally necessary as the basic ability to look at evidence and draw conclusions therefrom (and, just as importantly, not to draw conclusions that are not there).

In addition to making outrageous and unevidenced claims, Kavanaugh likely showed brazen dishonesty at his hearing. A “devil’s triangle” traditionally refers to a ménage à trois, not trois verres, and his roommate from Yale has written that Kavanaugh was not using mysterious, hitherto unheard-of definitions of phrases like “devil’s triangle” and “boofing.” Additionally, his answers about his drinking, suggesting that he was never a heavy drinker, fly in the face of the testimony of his college friends and the fact that he was in a bar fight in 1985.

On top of everything going against Kavanaugh, there is quite a bit going for Ford―mainly that no version of events where she’s not telling the truth makes plausible sense. If she’s lying, she would have had to think to invent this lie in 2012, taking aim at one guy who could eventually be on the Supreme Court. She would have had to then actively try to keep her allegation hidden from the public or the media. She would have had to add another person, Mark Judge, into her story, doing nothing but creating another witness against her.

The other scenario in which Ford is not telling the truth is the one that Republican Senators tried to push, and that’s that while Ford was assaulted by someone, she wasn’t assaulted by Kavanaugh. As is too often the case in today’s politics, this is a simple matter of science; as John Hopkins neuroscientist Richard Huganir told The Washington Post, “The person lying on top of you—who[m you]’d previously met—you’re not going to forget that.” Sexual assault survivors can have fuzzy memories. They can forget or misremember details. They can even forget or misremember the identity of an anonymous assailant. But they do not misremember the identities of assailants whom they know. As Ford herself, a psychologist at Palo Alto University, explained at the hearing, “The level of norepinephrine and epinephrine in the brain [...] encodes memories into the hippocampus. And so the trauma-related experience is kind of locked there, whereas other details kind of drift.”

One of the major arguments against Ford, and a common argument brought generally against women who bring sexual assault allegations years after the alleged fact, is that she took years to come out. Had she actually been sexually assaulted, so this argument goes, she would have reported immediately. This argument shows either a fundamental lack of understanding of or a refusal to understand what sexual assault survivors go through. Sexual assault survivors usually don’t want to relitigate their trauma, and, even if they’re in a supportive environment, they can be extremely reluctant to come out. One’s sexual assault is not usually a topic one wants to talk about at all.

Kavanaugh should have been disqualified from being a justice the moment a credible allegation came out against him. His disqualification should have been solidified by his performance at his hearing. Instead, he is now an Associate Justice of the Supreme Court. His ascent sets in stone a Court ruled by a hardline conservative majority that will decide the future of, among much else, gender equality for decades to come. This is a majority that Republicans won by court-packing and that will rule against the popular majority that has voted for Democrats in six out of the most recent seven presidential elections.

November 6 quickly approaches. Democrats seem poised to take back the House and have a plausible shot at the Senate. But both of those are far from guarantees, and if Democrats want to make sure their voice is actually heard in their government, they would do well to vote.