Plowing Past Preponderance
I do not know whether Justice Kavanaugh sexually assaulted Dr. Christine Blasey Ford. The testimony from Dr. Ford and Justice Kavanaugh was entirely inconclusive. Dr. Ford insisted that she was 100 percent certain that Justice Kavanaugh sexually assaulted her, while Justice Kavanaugh insisted that he was 100 percent certain that he did not. Speculation about the truth of their testimony based on their demeanor does not resolve the uncertainty. To be sure, there was some important evidence beyond Dr. Ford and Justice Kavanaugh’s testimony. For example, Dr. Ford passed a polygraph test, and some of the notes from her therapy corroborated her story. On the other hand, Mark Judge—who Dr. Ford claimed was in the room when Justice Kavanaugh assaulted her—submitted a sworn statement stating that the assault never happened. But, in the end, the limited evidence did not resolve the uncertainty.
Instead of acknowledging that uncertainty, President Trump and many senators simply chose who to believe. They overstated the strength of the evidence and speculated about Dr. Ford and Justice Kavanaugh’s demeanor in their emotional testimony. The result was a polarizing and unproductive dialogue. President Trump mocked Dr. Ford’s testimony, and Lindsey Graham called the effort to postpone Justice Kavanaugh’s confirmation “the most unethical sham since I’ve been in politics.” On the other side of the aisle, Democrats insisted that the short investigation demonstrated that the Republicans did not care about the truth.
Senator Susan Collins, however, acknowledged that she could not know whether Justice Kavanaugh sexually assaulted Dr. Ford. For Senator Collins, the question was not simply who to believe, but how to handle the uncertainty. To answer that question, Senator Collins noted that “the presumption of innocence is relevant to the advice and consent function.” She argued that the presumption is important in order to protect nominees from any “outlandish allegation” (when speaking about outlandish allegations, she noted that she was “thinking in particular not of the allegations raised by Professor Ford, but of the allegation that, when he was a teenager, Judge Kavanaugh drugged multiple girls and used their weakened state to facilitate gang rape.”). She concluded that “fairness would dictate that the claims should at least meet a threshold of ‘more likely than not’ as our standard.”
While I agree with Senator Collins that we cannot know whether Justice Kavanaugh sexually assaulted Dr. Ford, I do not agree that sexual assault claims should be disregarded if they fail to meet a “more likely than not” standard of proof. Establishing that there is a 49 percent chance that Justice Kavanaugh attempted to rape a teenage girl is more than enough to disqualify him from being a Supreme Court justice.
Unlike Senator Collins, I am not particularly worried about “fairness” to a nominee to the Supreme Court. In most job interviews, interviewers act on limited information, and their decisions are often based on a mere hunch. When interviewers reject a candidate based on a hunch, the rejection may feel unfair to the rejected candidate, but the interviewers have done no wrong. Receiving any job offer—let alone a position on the Supreme Court—is a privilege, not a right.
Clearly, a sexual assault allegation demands more sensitivity than normal considerations about a candidate’s qualifications. Accordingly, the decision makers (i.e. the Senate and the President) should publicly state that a decision to not appoint the candidate is only based on the uncertainty of the situation; it is not a guilty verdict. But being sensitive to the candidate surely does not require making him a Supreme Court justice.
Thus, I propose that, when deciding whether an allegation of sexual assault should disqualify a candidate for the position of Supreme Court justice, the President and Senate should use a standard analogous to“reasonable suspicion.” The “reasonable suspicion” standard is most often used to determine whether a police officer may search a suspect. For example, a person crossing the international border may be subjected to a body cavity search if the officer has a “reasonable suspicion” that the person is carrying drugs in his or her body cavities. If a “reasonable suspicion” that a person is smuggling drugs can justify subjecting that person to invasive searches, then a “reasonable suspicion” that a person has committed sexual assault can justify rejecting that person’s candidacy for Supreme Court justice.
The “reasonable suspicion” standard was established in Terry v. Ohio. Reasonable suspicion is determined from the totality of the circumstances. It must be based on a particularized and objective basis for suspicion. Reasonable suspicion is more than an “inchoate hunch” but “considerably less than proof of wrongdoing by a preponderance of the evidence.”
Senator Collins used a “more likely than not” standard because she wanted to protect candidates from “outrageous allegations.” But the “reasonable suspicion” standard also protects people from “outrageous allegations.” According to Alabama v. White, gossip does not establish reasonable suspicion. A tip establishes reasonable suspicion only if the information carries “sufficient indicia of reliability.” If a tip provides “nothing from which one might conclude that [the informant] is honest” then the tip alone is likely not a basis for reasonable suspicion.
I will not take a position on whether Dr. Ford’s testimony and the other available evidence established that it was “more likely than not” that Justice Kavanaugh committed sexual assault. But the evidence clearly established reasonable suspicion. Dr. Ford’s testimony, therapy notes, and polygraph test were sufficient indicia of reliability. Thus, Justice Kavanaugh should not have been appointed to the Supreme Court. Instead, the President and the Senate should have appointed a candidate who had not been accused of sexual assault.
Suggested citation: Nico Banks, Plowing Past Preponderance, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Nov. 2, 2018), https://live-journal-of-law-and-public-policy.pantheonsite.io/plowing-past-preponderance/.