The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the points at issue in the debate over the sexual assault accusations against Supreme Court nominee Brett Kavanaugh is whether the standard of proof used should be similar to that applied the criminal justice system or that of a job interview. Proponents of the criminal justice model argue that Kavanaugh must be considered "innocent until proven guilty" and his accusers should be required to meet a very high burden of proof, perhaps even as high as the "beyond reasonable doubt" standard used in criminal trials. By contrast, advocates of the job interview approach argue that it is up to the nominee to prove that he is fit to sit on the Supreme Court, and the accusations may be enough to disqualify him even if there is a great deal of doubt about their validity. Which approach is right? Both have some intuitive appeal. But, with a few qualifications, the job interview model is a better fit for the task at hand.
The criminal justice model appeals to the generally reasonable intuition that we should not "convict" a person of a serious offense without strong evidence and proper due process. But it ignores, or at least seriously downplays, the key fact that rejection of a judicial nomination is fundamentally different from a criminal conviction that is likely to cost the defendant his or her life, liberty, or property rights. It also overlooks the enormous risk of giving a morally unfit nominee an extraordinarily powerful lifetime position on the nation's highest court. The position of Supreme Court justice is ultimately just another job, albeit an extremely powerful and prestigious one. But that factor should make the moral standards for the job tougher to meet, not easier.
When it comes to more ordinary jobs, we readily recognize that applicants may be disqualified for a variety of possible shortcomings, even if the evidence of their existence falls far short of proof beyond a reasonable doubt. Imagine that you are hiring a babysitter for your children. A candidate applies who has excellent relevant skills, and good recommendations from recent previous employers. But evidence suggests that there is a 20% chance she may have been guilty of child abuse years ago. Few would blame you for rejecting her application on that basis, especially if there were other available applicants with comparable skills, but no such potential taint. Whether evidence of past criminal or unethical activity is disqualifying may vary greatly, depending on the nature of the job, and the nature of the moral lapse. A moral taint that is disqualifying for a childcare worker may not be disqualifying for an accountant, and vice versa. But, at least in a great many situations, a substantial likelihood that the applicant has a history of wrongdoing can be considered disqualifying.
The job of Supreme Court justice is unusual because of the immense power its holders wield, and the great difficulty of removing them or otherwise holding them accountable. Thus, the screening process for justices should be especially rigorous. Factors that may not be disqualifying for a wide range of other jobs – including even a wide range of other jobs in the legal profession – might be enough to justify rejection of a Supreme Court nominee.
Sexual assault is a very serious crime. A person who committed such an offense should not be barred from all employment for life – especially if the crime was committed in his youth, and he has shown repentance since then. But they can and probably should be barred from being a Supreme Court justice, because the position has such vast power, and so little accountability. And that may be true even if the evidence shows "only" that there is a high likelihood that the nominee committed the crime, but is not strong enough to qualify as proof beyond a reasonable doubt.
In some situations, we may need to take a risk on a morally tainted job applicant because all of the alternatives are far inferior on other dimensions. But we don't face any such difficult tradeoff when it comes to Supreme Court justices. Kavanaugh is a brilliant legal thinker and an outstanding jurist. But there are dozens of lawyers and judges with comparable skills, including many who are conservatives who share his general jurisprudential philosophy.
The Supreme Court nomination process is, in any event, not a pure meritocracy. All or nearly all of the people nominated over the last several decades have had impressive qualifications. But few if any were clearly the most meritorious applicants available at the time. Connections, partisan loyalty, and sheer luck are major factors in the selection process, at least as important as merit. Despite President Trump's hyperbolic claim that Kavanaugh was "born" to be on the Supreme Court, it is hard to argue that any particular nominee genuinely "deserves" to be on the Court based on merit alone.
While the job interview approach is the right general framework for assessing accusations against Supreme Court nominees, one key caveat must be kept in mind. When it comes to most jobs, there is little danger that people will cook up bogus accusations in order to derail an applicant. By contrast, that risk is all too real when it comes to Supreme Court nominees. For that reason, the standards of proof for accusations may need to be higher than those we would accept for most other positions, where the risk of deception and fraud is lower.
When the accusations against Kavanaugh first became public, I tentatively suggested that the standard should be preponderance of evidence: an accusation of serious wrongdoing should be disqualifying if the evidence suggests that it is more likely than not to be true. I now think I may have set the bar too high. If there is, say, a 25 or 30 percent chance that the nominee committed a crime as serious as sexual assault, that may be too much to accept for a lifetime position as powerful as a seat on the Supreme Court. But the bar should still be high enough to deter frivolous and virtually unsupported accusations from derailing nominations. We may never be able to come up with a precise line under which, say, a 24% chance is acceptable, while 25% is disqualifying. But the basic idea is that there should at least be enough evidence to prove a substantial likelihood that the nominee has engaged in disqualifying criminal or unethical activity.
Another difference between Supreme Court nominees and applicants for most other jobs is the highly public nature of the confirmation process. A false accusation against the former is likely to attract national attention, and may well permanently taint the nominee's reputation, in a way that losing out on other jobs does not. If Judge Kavanaugh is forced to withdraw because of a false accusation, he cannot simply go back to business as usual. For the rest of his life (and beyond), millions of people will consider him to be a sexual predator. That is a serious wrong we should be mindful of.
But most of the reputational damage caused by plausible, but false accusations will occur even if the nominee is ultimately confirmed. Even more importantly, the imperative of keeping morally unfit people from positions of great power outweighs the potential damage to individual reputations.
Some fear that, in an era of rampant polarization and partisan bias, almost every nominee will be tarred by dubious accusations, unless we adopt extremely high standards of proof. But that concern is belied by recent history. Consider, for example, that Democrats were no less opposed to the nomination of Justice Neil Gorsuch – whose seat they believed had been "stolen" from Merrick Garland – as they were to Kavanaugh. Yet, opponents of the Gorsuch nomination were not able to deploy any significant accusations of criminal or unethical activity against him. The same goes for every other nominee between Clarence Thomas (who famously faced accusations of sexual harassment in 1991) and Kavanaugh, even though this was a period of increasingly bitter conflict over judicial nominations.
Even if we accept the job interview framework, that does not by itself resolve the question of whether Kavanaugh's nomination should be rejected. Reasonable people can disagree over the issue of whether there is sufficient proof of the accusations against him to meet the standard outlined here. There is also plenty of room for disagreement over the issue of what kinds of criminal or unethical behavior is serious enough to be disqualifying in the first place. While I believe sexual assault should be disqualifying, I do not believe that to be true of every type of crime. For example, I think it was a mistake to force the withdrawal of Judge Douglas Ginsburg's 1987 Supreme Court nomination merely because he had used marijuana years earlier. Similarly, I do not care if it turns out that Kavanaugh illegally acquired alcohol when he was still below the legal drinking age. Others may take a different view of these cases.
Accepting the job interview framework does not resolve all the issues surrounding the Kavanaugh nomination. But it does provide useful guidance when it comes to the crucial question of standards of proof.