This piece, written by Michael McKenna (Arizona), is intended as a kind of generally accessible op-ed in response to one aspects of the Kavanaugh confirmation hearings.
Here now is McKenna:
Arizona’s United States Senator Jeff Flake has made a mistake. He should correct it. Just this morning [when this was written], as a member of the Senate Judiciary Committee, Flake voted along party lines to advance to a full vote in the U.S. Senate the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. Flake cited the legal and ethical principle that a person should be treated as innocent until proven guilty. But Flake’s appeal to this principle to justify his vote is not ethically defensible. Let me explain.
As a general principle, Flake seems to assume, we should regard people as innocent until proven guilty. Whatever exactly that standard of proof involves, it requires stronger evidence than is required to justify believing something. Believing Dr. Christine Blasey Ford and not Judge Brett Kavanaugh is consistent with lacking proof that Kavanaugh was guilty. That’s Flake’s way out. Nevertheless, it does not stand up to scrutiny.
Here is the problem with Flake’s reasoning: In the law, the principle innocent until proven guilty is sacrosanct because it concerns the authority of the state to punish a person. In punishing, we are denying a person something to which, in the absence of special conditions, they are legally and also morally entitled—not to be locked up, not to be intentionally caused unjustified harm, not to have their property confiscated, or whatever. So there had best be a high standard for justifying the state’s punishment of a person. But being a member of the Supreme Court is not a position to which Kavanaugh or any person is entitled. Were his nomination to be scotched at this point, he would not be denied something to which he has a right. He would not be punished. He just would not get something that he wanted very much. To think otherwise is to think that he is entitled to this high office—an absurd presumption. And since—at best—all we have here is uncertainty, there is overwhelmingly good reason not to appoint him.
You don’t think so? Consider this: There are many contexts in which lack of proof about whether a person is guilty of something is consistent with having a compelling reason not to assign them a position, given the charges against them. Here is a simple example: You’ve learned that Uncle Fred has been accused of molesting children. While there is not adequate proof, the charge is credible. Despite this, you believe he is innocent. You think he is a good man. He’s family. Still, you’re not sure. You don’t have enough evidence to discredit the allegation. Do you leave your kids with Uncle Fred for the weekend while you head off on a vacation?
I’ll bet your answer to this is a clear “Hell no!” If so, note that in this case, unlike the way I am imagining Flake’s position, you actually believe Uncle Fred, the accused, and disbelieve the accusers. Still you see the wisdom of erring on the side of caution. Why? There’s too much at stake. Of course, I presume that Flake is prepared to believe Ford, the accuser, and disbelieve Kavanaugh, the accused. So it should actually be easier in this case to see the wisdom of erring on the side of caution. But suppose this is not so. Suppose Flake actually believes Kavanaugh and not Ford, or suppose instead he is just not sure whom to believe. I say, just like your considered judgment about leaving your kids with Uncle Fred, Flake has overwhelming good reason to resist Kavanaugh’s appointment.
Still not convinced? Ask yourself why. Here’s one reason someone might resist my argument. In the case of Uncle Fred, there’s something of immense value at stake. But in the case of Kavanaugh there is not. So, contrary to what I argued above, in this case there is not overwhelmingly good reason to resist Kavanaugh’s appointment. Even if after all he is guilty, this should not disqualify him from being appointed to the Supreme Court of the United States. Why not? Well, it’s just not such a big deal. It was a long time ago. It was probably all a big misunderstanding. He was a kid. He was drunk. It was part of the culture. It’s all in the past. If that’s what you believe, then let’s just be honest. There’s no principle of guilt and innocence at work here, except as a charade.
I confess, I strongly suspect that this is what animates many right now who remain committed to supporting Kavanaugh even after witnessing Dr. Christine Blasey Ford’s testimony yesterday. It does not matter even if the man is guilty of this assault in his youth. Maybe it is what animates Senator Flake. I sure hope not. Jeff Flake has recently been an honorable voice of sanity and wisdom in the Republican Party. He has had the courage to resist the destructive policies of the Trump administration. I for one am prepared to give him the benefit of the doubt.
It is heartening to learn that later this very morning—indeed while I was drafting this essay—Senator Flake is now demanding an FBI investigation before any vote proceeds to the Senate floor. Good on him! Still, we should all bear in mind that the upshot of that investigation might yield no more than inconclusive results. If so, my argument stands. The principle of innocent-until-proven-guilty is an important guiding principle in our legal and ethical reasoning, but it does not apply to the decision now before the U.S. Senate. In the absence of clear evidence that Dr. Christine Blasey Ford is notto be believed, the right call is to stop the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States of America. To think otherwise is to think there’s not that much at stake. If you think that, well, you are wrong.
Professor of Philosophy
University of Arizona