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Opinion A higher standard of candor is required

As Supreme Court nominee Brett Kavanaugh faces a sexual misconduct allegation, columnist Ruth Marcus asks, who's responsible for the burden of proof? (Video: Gillian Brockell/The Washington Post)
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If Judge Brett M. Kavanaugh cannot convince the American people, and by extension, U.S. senators, that he is innocent of the accusation leveled against him by Christine Blasey Ford, he will be compelled to withdraw or face a humiliating defeat. His absolute denial demands that we be absolutely sure his accuser is lying or mistaken. Packed in that are a number of assertions, which senators must contemplate.

First, a single case of attempted rape — which is what Ford says is the way she experienced the incident — is enough to disqualify someone from confirmation on the highest court in large part because the accused has been concealing and/or lying about a heinous act well into his adulthood. He’s not pleading for mercy because of the passage of time; he shouldn’t get absolution if we conclude that he committed attempted rape.

Second, the standard of proof for an accuser is much lower when a Supreme Court nominee is involved than in the usual political context or even civil litigation (preponderance of the evidence). Rather, the burden should be on the nominee to remove any “reasonable doubt” he committed the acts of which he is accused — for no other reason than justices must be beyond reproach, retaining the confidence of the country and all parties.

Brett Kavanaugh’s odd response

Third, the judge has been less than candid already in two respects. First, he’s played the “not going to tell you” dodge on virtually every issue of consequence, even going so far as to refrain from criticizing the president for impugning the integrity of the federal courts. Second, while it is inaccurate and unfair to say he perjured himself as many progressive activists claim, my colleague Salvador Rizzo makes a powerful case that he was deliberately deceptive with regard to one matter, his involvement in the confirmation hearings for Charles Pickering while Kavanaugh worked in the George W. Bush administration.

Kavanaugh at the 2006 hearing told then-Sen. Russ Feingold (D-Wis.) that he did not know Pickering had improperly asked lawyers to send letters in support of his nomination. “This was not one of the judicial nominees that I was primarily handling,” Kavanaugh said.
“I was not the associate counsel in the White House Counsel’s Office assigned to Judge Pickering’s nomination,” Kavanaugh added in a response to Feingold’s written questions.

But, in fact, he did a lot of work on the matter, according to emails subsequently discovered. (“His work on this nomination went substantially beyond the blanket responses Kavanaugh gave to [Democratic Sen. Richard J.] Durbin’s written questions in 2004, when he disclosed that he participated in meetings and discussions about Pickering and 18 other nominees,” Rizzo wrote.) Moreover, when asked about it in his recent confirmation hearing, Kavanaugh insisted that he was not dishonest or misleading. Barely staying on the safe side of perjury cannot be the standard for a Supreme Court justice; we expect more.

Muscling through Kavanaugh’s confirmation isn’t an option

If, for example, we should trust him to recuse himself from cases in which there is the appearance of a conflict of interest with the sitting president, we would have to rely on him going the extra step, showing candor and restraint when there is no real consequence for failing to do so. (The Supreme Court lacks a code of ethics to which lower court judges subscribe.) We expect something better than “didn’t lie.”

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And finally, Kavanaugh has refused to allay concerns that he’d be an easy vote for President Trump when it comes to Trump’s own legal liability and obligations in the course of the Russia investigation. Kavanaugh must know that the president wants a justice who will grant the widest possible latitude to the chief executive; the judge also knows he has a broader view of executive power than many potential nominees. And yet he won’t acknowledge what is readily apparent: He was selected instead of all the other Federalist Society-blessed judges at least in part because of his views on executive power. Again, fuller candor and concern for the court should weigh in favor of recusal.

Kavanaugh’s accuser steps forward

We seem headed for a credibility clash for which there likely will be no definitive conclusion. If we did not have the looming midterms and the possibility that Republicans might lose the Senate, the obvious solution would be to choose someone else. We shouldn’t take the risk of empowering someone against whom there is such a credible, serious charge and who has been so lacking in candor. Republicans won’t do that because they are insistent on taking a vote before the midterms. They stole a seat (from Judge Merrick Garland) and by God they aren’t giving it back! Well, that’s a lousy reason to take a gamble on the integrity of the Supreme Court.

There are plenty of reasons for the president to pick someone else, only one of which is the latest accusation. Trump should be compelled to do so by senators who value the reputation of the Supreme Court more than they do partisan advantage. The real question is whether there are two such people.

Read more:

Ruth Marcus: We need the fullest possible airing of the accusation against Brett Kavanaugh

Michael Gerson: Kavanaugh’s nomination now hangs by the thinnest of strings

Max Boot: Republicans can’t try to muscle through Kavanaugh’s nomination any more

Helaine Olen: Kavanaugh’s accuser should have spoken up sooner? Give me a break.