And yet, I believe Kavanaugh may also be sincere when he denies the incident. Which is to say that both he and Ford may think they’re telling the truth. How those individual truths bear on actual events is a more complicated question. We may never know the answer.
It’s a cliché that memory is fallible, but in recent years, thanks to researchers such as Elizabeth Loftus, just how fallible it is has become clear. People can sincerely forget things you’d think they would remember, or they remember details or even whole events they couldn’t possibly have experienced. Loftus herself describes inadvertently confabulating a vivid memory of finding her mother dead in the family’s swimming pool when she was 14. Her mother did die in the pool, but Loftus wasn’t there when the body was discovered.
It is probable that at least some of the details of Ford’s story are wrong, even if the bones are quite true — and horrifying. And it’s equally possible that Kavanaugh doesn’t remember it, either because she has misidentified him, or because he was blackout drunk, or because he saw the same events as more benign than Ford did, and his mind saw no reason to file that memory away.
Which complicates the eminently sensible idea of delaying confirmation pending a full hearing. A delay would give other potential victims time to come forward and establish a pattern of behavior that could resolve lingering doubts, which is among the reasons for holding a hearing. But what if no one does come forward? We’d like to think that we could detect who’s lying in a hearing just by watching Kavanaugh and Ford testify. Only at this point, it seems possible that neither will be deliberately lying — and that no one else will be able to corroborate or disprove such a vague story.
Contra conservatives, the vagueness of Ford’s story isn’t proof that it didn’t happen. If anything, the reverse: Liars tend to provide an excessive wealth of detail. But the lack of detail does make it essentially impossible for Kavanaugh to defend himself. “Prove you weren’t at a house party somewhere in Montgomery County between the years 1979 and 1982” would set a new high for Supreme Court nomination standards. A version of that standard would be applied again and again if this story, by itself, scuttles his nomination.
One way out of the dilemma is to say that whatever happened that night, a Supreme Court nomination should not be derailed by a teenage boy’s behavior some 35 years ago. This argument has real merit, not because sexual assault is all right if you’re 17, but because people do change, and a decent society recognizes that. In the case of minors, whose brains aren’t fully formed, I especially believe in radical forgiveness and radical redemption. Yes, even for terrible crimes — forgiving crimes “except the really bad ones” isn’t forgiveness, it’s an admission that you didn’t care that much in the first place. If you truly believe, as I do, that no one’s character should be summed up by the worst thing they ever did, then people who have atoned and lived honorably for decades should be readmitted to society in full good standing — including even admission to the highest court of the land.
And yet, if Kavanaugh did what he stands accused of, he hasn’t paid his debt. That insults both the suffering of his victim and the majesty of the law. And if he has truly forgotten doing a terrible thing, he’s no longer even capable of forming the sincere repentance necessary for redemption.
Moreover, my views on criminal justice are a micro-minority position, and the democratic legitimacy of this appointment matters. Installing Kavanaugh with the allegations unresolved would further corrode an already tattered civic fabric.
Unfortunately, with the midterms almost upon us, there is now no path to an outcome that both sides see as legitimate. Democrats can insist that the revelation of Ford’s story was not exquisitely timed to exactly the moment when it became impossible to confirm a different nominee before the elections. But they are in essentially the same position as Kavanaugh: Even if they are telling the truth, they have no way to provide convincing proof.
Which leaves us, at this point, with only one clear truth. Absent a lightning bolt from the evidence gods, America is going to be stuck with partial and unsatisfying answers to unresolvable questions.