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Saturday, September 22, 2018

Kavanaugh and the burden of proof

In The Atllantic, Benjamin Wittes addresses the issues of burden and standard of proof with respect to Brett Kavanaugh, the allegations against him, and his confirmation. A lot of people have been talking about these issues (often under the catchphrase "presumption of innocence") in the abstract, without diving into what they mean or how they apply.

Wittes argues that Kavanaugh bears the burden of persuasion because he wants the factfinder (50 Senators) to do something--confirm him to the Court; he is not entitled to that unless he can affirmatively convince them that he should be on the Court. The burden of persuasion is understood as the risk of non-persuasion--who bears the risk of losing and of not getting something if the factfinder is not persuaded. In other words, what is the status quo, who must change the status quo to prevail, and who loses if the status quo remains the same. If Kavanaugh were being prosecuted for sexual assault or sued by Ford for sexual assault, the burden would be on the state or Ford to change the status quo and show that he did what is alleged. If Kavanaugh was impeached and facing a Senate trial to remove him from the D.C. Circuit, the burden would be on the impeachers to show that he should be removed from the bench because he committed the disqualifying act. In each of those, the status quo is that Kavanaugh is free, not liable, and on the court of appeals. Here, the status quo is that he is not on the Supreme Court, so he bears the burden of showing that he should be, including whatever relevance the incident in 1982 may have to his qualifications.

Wittes also considers the standard of persuasion as the more-interesting question, because there is no agreed-upon or meaningful standard for this proceeding. One possibility is there is none, that the standard is ideological and nothing more. Wittes suggests two standards from Kavanaugh's standpoint--"minimally convincing" (enough to convince the few Republican stragglers to join the already-declared Republicans to confirm him) or "no asterisks," meaning enough evidence that a reasonable person will not doubt Kavanaugh's integrity or fitness for the position. Wittes argues that meeting something somewhere in the middle will not be sufficient for Kavanaugh to not only serve on the the Court, but to serve meaningfully or effectively.

Posted by Howard Wasserman on September 22, 2018 at 05:16 PM in Howard Wasserman, Law and Politics | Permalink


It may be that I was not clear. What I was trying to say is:

Ordinary people argue or try to persuade others on a daily basis. They do so with a set of commonsense assumptions as background without every thinking about them. People arguing for something try to persuade others of that something; people who disagree try to persuade to the contrary. Both sides put forward whatever evidence they think serves their arguments. No one says, I'll not try to persuade or prove because the other side has the burden of proof or persuasion.

So when a lawyer comes along and effectively says: No, your everyday intuitions about argument are all wrong in this case; the burdens of proof and persuasion are entirely different than you'd supposed . . . I don't think the average person is going to find that persuasive. How large a pool of people do you think there are that (a) were inclined to side with Kavanaugh but (b) changed their mind or would change their mind based on Wittes' arguments about burdens? My guess is 0 or something very close to 0. I also think most are likely to recognize his argument as results-oriented lawyering.

Posted by: Curmudgeonly Ex-Clerk | Sep 24, 2018 3:13:01 PM

@Curmudgeonly Ex-Clerk

Except the events are 30 years old so what evidence could there possibly be? Has she been carrying around a semen stained dress of 30 years? What else is he supposed to say but "I don't remember?" This is a classic "he said, she said" case compounded by decades of intervening events. So how does one decide this type of case without falling back upon some legal or cultural heuristic like "innocent until proven guilty" or "all women should be believed"?

If you know of any actual evidence that doesn't involve a credibility determination in this case, please come forward and let the rest of the world know.

Posted by: James | Sep 24, 2018 2:30:24 PM

I think ordinary people (non-lawyers) generally look askance at these types of burden of proof/persuasion arguments when made outside of the courtroom and rightly so. If you assert a fact, it behooves you to support the assertion with some evidence if you want to be believed. And any sensible person will try to refute the assertion with proof if they disagree and are able to do so. Is there really anyone who is going to make up their mind about Kavanaugh on the basis of the burden of proof or persuasion?

Posted by: Curmudgeonly Ex-Clerk | Sep 24, 2018 11:07:01 AM


"but it is impossible at this date to determine which of the dozen men at the party drugged her"

Let's be more specific. Let's say everyone at the party was Black or Muslim. Would you still want to say that any of them could've been the drugger and that they should all be prevented from holding or being nominated to high office?

Let's call the people at the party Scotsboro boys. We think one of these black boys drugged a girl at a party. The white men in the city want all of them prevented from running for or holding office in the future. OK?

One of them is definitely guilty, so it's OK to punish all of them? If it's a coincidence that all the men at the party are black, then it's not racist to punish them for the actions of the individual, right?

Posted by: Tommie Soulbring | Sep 23, 2018 8:50:55 PM

It's also worth noting that on the one occasion where Kavanaugh was asked an unaticipated question about "what [he was] like" in high school and whether he got into any trouble, he (a) blushed, (b) stammered, (c) burst into a paroxysm of nervous giggling and snorting noises, (d) turned his body 45 degrees from the questioner in multiple directions, (e) gave an answer that largely consisted of "uhhhhh" and "uhh," (f) when asked again about whether he got into trouble, said "ummm, right . . . that's encompassed under the friends [he previously said he had in high school], I think," (g) after that non-responsive set of answers, when told "that's all I'm going to get out of you, I understand," smiled, pursed his lips, and nodded his head. Presumably with some coaching and advance warning he can give less absurdly suspicious responses.


Posted by: Anon | Sep 23, 2018 6:55:26 PM

I disagree with the claim that Kavanaugh or any nominee bears a burden of persuasion. For the burden of proof lies on the person who nominated them. That's what a nomination is: a means by which one party vouchsafes the ability of another. Indeed, imagine that Kavanugh were to not get confirmed. This wouldn't be an insult to Kavanugh any more than it was an insult to Garland not to get confirmed. It would be an insult to Trump.

Anyone remember what Mcconnell famously said to Obama, "Mr. President you will not fill this vacancy." Careful, thoughtful measured words. Something, to be blunt, that Wittes has never been good at.

Posted by: James | Sep 23, 2018 2:30:08 PM

"to serve meaningfully or effectively."

Which just begs the question---has he been serving meaningfully or effectively on the lower court (and as a girls' middle-school basketball coach--which he took a picture with during the preceedings, since that was safe for the girls since it was before the accusation took place)?

If you think he hasn't been serving effectively on the lower court, you're willing to believe he might've committed a felony or attempted felony, as a minor. Either way, we need to hear Ford's testimony before Kavanaugh can respond to the exact precise allegations in question.

Either way, this proves we should outlaw underage drinking once-and-for-all by-all-means-necessary.

Posted by: Raise the Drinking Age to 21 | Sep 23, 2018 1:21:44 AM

Consider the following true-life hypothetical. (The part about the attempted sexual assault actually happened; the part about the subsequent judicial nomination hasn't happened, at least not yet.) A law student at an elite law school attends a party with a couple dozen of her law school classmates, not having drank anywhere else earlier that night. She goes home directly from the party alone, feeling tired after having a couple drinks; she wakes up choking on her vomit. Extremely sick, she goes to the ER and tests show that she was given a date-rape drug. Daunted by the prospect of having a dozen of her male classmates questioned by police, and having no basis to suspect any one of the partygoers more than any other, she makes no police report.

Twenty-five years later, one of the men at the party is nominated to the Supreme Court. That she was drugged is a fact of hospital record, but it is impossible at this date to determine which of the dozen men at the party drugged her, either by way of hard evidence or circumstantially; none of the men have ever been accused of similar conduct, all have gone on to become lawyers of good standing, and there is no record twenty-five years later of any of them having purchased the drug, either because they took care not to use a credit card or because credit card records aren't retained that long. Of course, whoever did it, were he the nominee, would be highly unlikely to admit his crime and would probably perjure himself if asked about the matter, both to avoid criminal liability, shame, and disbarment, and because anyone unethical enough to drug a woman for the purpose of raping her is unlikely to have profoundly reformed twenty-five years later. So little stock can be placed in the nominee's denial. Likewise, little stock can be placed, for obvious reasons, in the testimonials of female clerks (do date rapists rape their clerks?), high-school girlfriends carefully selected by publicists paid by outside groups working for confirmation, female professors whose daughters have clerked for him, female lawyers whose Green Bag articles he's complimented, and the like. We simply have a situation where there is a 1/12 chance that the nominee attempted to date-rape a woman, and no amount of credible testimony will negate that fact.

Now, in that situation, where the nominee is not particularly more qualified than other elite peers of his jurisprudential persuasions (which is the case of Kavanaugh, who isn't substantially more qualified than at least a half-dozen conservative circuit judges*), why would we ever countenance his confirmation? Why run an 8% risk that a Supreme Court Justice was, in his early adulthood, a calculated date rapist? I would suggest that Kavanaugh is an a fortiori case; while there is some possibility that Blasey Ford wasn't assaulted, the chance her assaulter was Kavanaugh is a great deal higher than 8% given her positive identification, and his denying ever-so-credibly that he was ever at a small gathering with her, or can recall assaulting her, won't change that reality, especially when he easily could have forgotten the event given how drunk she claims he was.

* Judges who are nearly-to-more capable, younger or not much older, and who would likely vote in the same way as Kavanaugh would include Kethledge, Barrett, Colloton, Stras, Larsen, Kevin Newsom, arguably Gruender and Thapar, and certainly Sutton, one stray vote in his career notwithstanding. The choices facing the White House are not remotely akin to sticking with Bork/Ginsburg versus nominating Kennedy; they're more like Clinton's being forced to pick Breyer over Richard Arnold because of the latter's health.

Posted by: Anon | Sep 22, 2018 9:54:12 PM

This is really baseless with all due respect ( the related article ) . First , the standard of proof , is general standard . Typically , the nature of the tribunal or even the circumstances surrounding it , don't really matter . What counts , is that he who pleads , he has the burden of proof . And why , among others , in order to prevent , what he so furiously complains for , I quote :

They are publicly floating theories naming an alternative perpetrator—and then removing them and apologizing after those theories are picked up by Fox & Friends. Having held up Merrick Garland’s nomination for the better part of a year to get past one election, they are apparently so fearful of further erosion of support for their nominee that they feel the need to rush this matter to a vote just weeks before another one. In the era of #MeToo, their actions bespeak the fear of et tu. Their solution is haste—and not the sort of haste that suggests faith. It is the sort of haste that that has one eye on the midterms and the other eye cast downward.

And more :

It means accepting that it is better to continue serving as a D.C. Circuit judge than to play the sort of undignified games that Republicans are playing on his behalf.

End of quotation :

That is among others , what it is meant for ( by the burden of proof ) . So , a person , wouldn't fool around , with senseless and baseless allegations . It does corrupt systems , and public hygiene . This is not less than the apolitical court he refers to so desperately . Because , the so called , political court ( apparently , but let us assume so ) is anyway a given in the US , but , reversing the burden of proof , and creating such moral or immoral chaos , in so badly divided nation as the US has become recently , is no less as real danger .


Posted by: El roam | Sep 22, 2018 8:15:33 PM

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