The Lynching of Brett Kavanaugh

“If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried.” - Unnamed White House lawyer

In the wake of the accusations that faced Justice Kavanaugh: a fierce competition was sparked. Journalists and democrats competed for the most ridiculous interpretation of this simple observation. Pretending that successful, white men engage in rape like it’s some sort of right-of-passage, avatars of modern day journalism like Alexandra Petri of the Washington Post condescendingly and mockingly asked, “What next? I’m supposed to make sure everyone I have sex with is willing?”  This rhetorical question is clearly designed to derail the conversation by using the anger these accusations provoke as some sort of trump card. But any serious person not blinded by emotion is capable of reading the concern of this unnamed lawyer for what it actually is.  Americans are rightly concerned about the consequences of such a short-sighted policy as using the mere accusation of rape as itself evidence of rape; which is then used to permanently block the accused from all opportunity for career advancement or living a normal life untarnished by those accusations. The key to properly reading this statement is in the phrase “accusations like this.”  Christine Ford’s accusation, is just that.  Her efforts to prove her story, simply put, offer no support for claims of such gravity.

Ford had been silent about her alleged experience with Kavanaugh for over 3 decades.  According to her, she only confided this story in her husband and her therapist. If this is true, it  puts to rest the idea that she concocted this story from thin air after hearing that Kavanaugh had been nominated to the Supreme Court. Unfortunately for her case, one’s husband is obviously not an unbiased source of verification and should not be relied upon, and the therapist’s notes are still hidden from the public.

Secondly, Ford recounted that there were four other people in attendance the night of: Mark Judge, Patrick Smyth, her lifelong friend Leland Keyser and a fourth boy whom she could not recall.  In an ironic twist, this only ended up undermining her case; all three named individuals made statements saying they can’t remember this party even happening, and what’s more, Ms. Keyser said she has never met Brett Kavanaugh in her life.

Finally, Ford took a polygraph; a point endlessly chanted by her supporters. Of course, she passed.  If only polygraphs were more reliable than a coin toss. Contrary to popular belief, polygraphs are not accepted as legitimate evidence in courts of law, and the American Psychological Association has long held that there’s little evidence that there are any reliable methods of lie detection, including polygraphs.  

To do even more damage to their integrity, the dishonesty of Democratic Senators is further exposed when they use that polygraph as their only piece of hard evidence. As a former attorney, for instance, Kamala Harris knows this fact full well. In her role as an attorney, it doesn’t take much legal expertise to understand that she’d never allow her case to collapse on the sole basis of a polygraph, and yet she insists on their reliability and repeatedly demanded Kavanaugh himself take one.

That is also a nail in the coffin for the people who think they can determine who is telling the truth between Kavanaugh and Ford by simply watching their testimonies. The fact that both of their testimonies were emotional, that could be used as evidence for or against either side. But more empirically, a review of 253 studies, again selected as a cover story by the APA, found that people could only tell when someone is lying only 53% of the time.  This means you would get almost the same result if you flipped a coin. More importantly, even if we did have relatively accurate lie detection it could not rule out the very real possibility of mistaken identity; that Ford is telling the truth about an event as she recalls it, but Kavanaugh was not her attacker.

Though proving a negative stacks the deck against him, Kavanaugh provided some evidence towards clearing his name, the most significant of which is a calendar which showed he at least never planned on going to a weekend party with Ford or Keyser during the month in question. Quickly, this was mocked by his critics, but they conveniently forget that this is as much hard evidence as this case would ever have seen. And it’s still stronger than a polygraph.

All of these problems with Ford’s accusation in mind, the original statement of the White House lawyer really highlights the potential for a scary pattern of behavior arising: where we bar people accused of rape, no matter how threadbare the accusations, from ever being considered for important jobs or promotions. This means virtually anyone with a political or personal vendetta against someone (which is a lot of people these days, if not everyone) could veto a political opponent. That is simply not a reasonable option when dealing with accusations against controversial political appointees because it would result in a worse problem than the one we are trying to solve. Appointments like these, after all, play out in front of the entire country. What are the odds that someone among one half of the electorate, numbering over 100 million, would leap at the opportunity to halt the appointee of someone they despise?

This is the same reasoning governments use to justify never 'negotiating with terrorists.'  Even though it may seem that terror threats can be easily resolved just by complying with their demands, negotiating with any one terrorist sends a signal to other prospective terrorists that if they threaten the right targets they can expect to be negotiated with and probably get their way in the end. The result is more people committing more terror and a worse situation overall than if there was never a negotiation in the first place.

Innocent men and women have a clear stake in fighting for a rigorous burden of proof on serious accusations against anyone, even in the much less formal court of public opinion.  This is not solely about seeing rapists punished. It is also about ensuring innocent people can live normal lives, unburdened by serious, false accusations against them which have the power to destroy their career and even their lives.  We can start solving this problem by establishing now, that if the accusations against Kavanaugh can not meet this standard, his confirmation is just and he deserves his seat on the court.

Which brings us to two people you would expect to appreciate this essential nature of respecting this centuries’ old basic, common law standard of proof. Those two would be the IDW’s Jordan Peterson and Bret Weinstein, who both came out in opposition to Kavanaugh. Though they themselves were subjected to a campaign of unsubstantiated accusations that sought to ruin their careers, Dr. Peterson said that Kavanaugh should resign, while Weinstein merely derided the now justice as “entitled.” Peterson’s rationale, he later clarified, was that he thought it would reduce polarization to have a less controversial nominee. Peterson likely doesn’t appreciate the extent to which this is purely political. Democrats, especially the Senators themselves, only superficially care about the accusations as a means to an end. Weinstein, on the other hand, had reserved his doubts about the reliability of the accusations, but claims that Kavanaugh is as entitled as any other white male Ivy League frat bro--which is somehow disqualifying. Strangely, it’s “entitled” to expect a fair process based on your judicial reputation rather than accusations of gang rape.

For his part, noted atheist and neuroscientist Sam Harris waded into the debate, offering the more or less conventional argument that accusers have nothing to gain by falsely accusing someone of rape. The incentives, he tell us, make it more likely than not that Ford isn’t lying. It's a curious argument to hear from a man whose entire career is virtually devoted to deriding ideology for its ability to hijack people's senses. Nevermind that there is plenty to gain aside from ideological goals in the form of press circuits, donations, and venerated martyrdom. That's not to say that Ford is guilty of this, but only to say that it's not as absurd a proposition as Harris suggests. And this reasoning certainly doesn't meet the standard of evidence that must be met to derail anyone’s job interview, let alone a qualified Supreme Court Nominee.

From the moment Kavanaugh was first accused, his confirmation was no longer about filling a Supreme Court vacancy. While the confirmation of Justice Kavanaugh can’t clear his permanently blemished name, which is itself a tragedy, it has in some meaningful way vindicated him. Rejecting him would have made a statement rewarding the mob and conceding, to many people, the validity of these accusations, and to stick yet another stake in the coffin of his reputation.

Between all of the people involved in the ruination of his life’s reputation, the only person who has yet presented any evidence at all is Kavanaugh himself. The facts of the matter aside, the Democrats have done plenty themselves to diminish their credibility from the beginning, meanwhile he had not. From Dianne Feinstein sitting on Ford’s accusation for nearly a month until it came time for a vote to advance his nomination, to Cory Booker telling us that it doesn’t matter if he’s innocent or guilty because of his “temperament”, this case had all of the markers of a political campaign to tear someone down who threatens their political priorities. The most flagrant example of this was seen when the super-serious lawyer and potential 2020 presidential candidate Michael Avenatti waded in with a third accuser, Julie Swetnick, which arguably cost the Democrats their effort to kill the Kavanaugh confirmation because of how utterly ridiculous her claims were. But Avenatti wasn’t any more cynically political than the rest of the Democrats. He was merely cashing in on a race that had long begun before he entered. The person to lay out most passionately and accurately the Democrats’ strategy is Senator Lindsey Graham.  

None of this was bound to change now that the FBI has wrapped up it’s probe into Kavanaugh. It’s why the Democrats decried from the beginning that it shouldn’t be limited in its scope or have any time constraints, because for them, the only acceptable time constraint would be the impending midterms--no matter the cost. Hopefully, the ruthlessness of this tactic won’t be rewarded with political success, and those who tried to make it the new standard will be held responsible by you.

Jason Elliot