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Unforgiven

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Unforgiven

Those who argue that what Brett Kavanaugh allegedly did is disqualifying ​need to consider the precedent they’re setting. September 18, 2018
Politics and law

Supreme Court nominee Brett Kavanaugh has been accused of sexually assaulting a woman. According to the accuser, Christine Blasey Ford, during a party Kavanaugh and a friend, both heavily intoxicated, pulled her into a bedroom, closed the door, and pushed her onto a bed. Kavanaugh got on top of her, and, placing a hand over her mouth to muffle her screams, groped her and tried to remove her clothing. Terrified, she was able to escape and hide in a bathroom before fleeing the house. 

This happened 36 years ago, Ford says. Kavanaugh was 17 years old at the time and Ford, 15. Kavanaugh firmly denies the story.

These last facts should make all those determined to use the charge as the poison pill to kill the judge’s nomination nervous. They’re on the verge of setting a dangerous precedent that will inevitably come back to bite them. 

For one thing, they are setting the stage for condemning to reputation-death not just a Roe v. Wade-threatening Supreme Court nominee but any person, man or woman, Bible-thumper or Democratic socialist, by accusation alone. Ford’s story is almost impossible to investigate, much less to corroborate. It happened either in 1982 or 1983; it was either in June or August; it was a house, but she doesn’t know whose; she can’t recall how she got home. 

Despite the hazy details, many find Ford’s story is credible, and for good reason: there’s nothing extraordinary about the events she describes, unfortunately, and over the years she told two therapists about them, though it’s not clear that she ever named Kavanaugh. Still, those who caution that human memory is unreliable, especially after more than three decades, are indisputably right. Is she certain that it was Brett Kavanaugh who was on top of her during those dreadful minutes? She had reason to fear that he was going to rape her, but do we know that that’s what he was intending, and does that make a difference? Kavanaugh himself might not know the answer. Multiply 35 years by large quantities of alcohol—Ford described Kavanaugh and his buddy as “stumbling drunk”—and you’ve got a terrible formula for truth-seeking. 

Even with corroborating evidence, the case raises difficult questions about what constitutes disqualifying behavior. Attempted rape? No senator, even in the motley crew that now inhabits our upper chamber, would be willing to give a thumbs-up to a Supreme Court nominee with a felony on his or her record. Such a candidate would never be nominated to begin with. 

But how about if this was a single instance of drunken groping by a minor? Keep in mind that all modern societies use different standards for judging and punishing minors than they do for adults. These days, people point to brain science to prove that adolescents have poor impulse control and social-emotional awareness, but you don’t need neural imaging to know that adolescents can be dumb risk-takers. That’s why we seal juvenile records. That’s why we have juvenile facilities and diversion programs. That’s why the goal in juvenile proceedings is not so much punishment as deterrence and rehabilitation. Kids grow up; they change; often, they straighten out.  

Just about all the liberal commentary on the Kavanaugh–Ford affair thus far has trivialized this distinction between juvenile and adult by referring to it as a “boys will be boys” excuse. “Boys Will Be Supreme Court Justices” was the title New York Times editors gave to Michelle Goldberg’s Tuesday column. “Much of defensive reaction I’m seeing around Kavanaugh (& not just from the right) suggests that lots of people think a regular part of male development is the stage where boys drunkenly pin down young women & try to assault them,” New York columnist Rebecca Traister tweeted. Another tweet by popular progressive writer Jeet Heer continues in that vein: “I’m fascinated by the ‘teenage rapists deserve a pass’ strand of conservatism that is emerging.”  

They are missing the point. No one—or at least no one outside the lunatic fringes of social media—is arguing that rapey behavior by teenaged boys is okay because, hormones. What they are suggesting is that the cruel and aggressive actions of an adolescent don’t deserve the same level of scrutiny and punishment as those of an adult. The perpetrators of such actions are more likely to be boys because hormones, but both sexes deserve a lighter touch when they’re underage.  

That Kavanaugh’s fiercest opponents are now using a (tenuously recalled) adolescent crime as proof of his unfitness is an irony worth considering. The Left has always been at the forefront of the fight for leniency for minors. Progressives founded the juvenile court in 1899. Liberals fought “law and order” conservative attempts to try juveniles as adults initiated during the crime wave of the 1970s through 1990s. They pointed out, accurately, that those policies affected black kids far more than white. They were rightfully indignant that prepubescent children could be labelled sex offenders. “Children are regularly put on sex offender registries, sometimes for their entire lives, for conduct less serious than what Kavanaugh is accused of,” writes Goldberg. Well, yes. That’s exactly the tough-on-juvenile-crime approach that has five times as many black as white juveniles in prison and that Goldberg herself would justify against Kavanaugh. 

Now, you could still argue, reasonably enough, that the bar should be set higher for a Supreme Court justice than for many other official positions; that 17 is old enough to justify severe lifelong consequences; that Kavanaugh, assuming that he is guilty, would have deserved a pass if only he would admit and apologize for his transgression. But these arguments need to be made as a matter of considered, consistent principle, and far away from the political war zone.

Men and women are not angels. Someday a brilliant, highly experienced, well-regarded woman may well be sitting in Kavanaugh’s seat and be accused at the zero hour and after interminable vetting of, say, stalking a former boyfriend or snorting cocaine when she was going through a bad stretch in high school. Then what?​

Photo: Chip Somodevilla/Getty Images

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