So I’ve tweeted some about Kavanaugh and evidentiary standards and how sure we have to be someone committed a very bad act to reject his nomination. But I haven’t really given my thoughts. Here they are.
I think people are thinking about this through a frame of whether Kavanaugh deserves to be punished. But that’s a mistake. It’s more a prudential question.
Life isn’t always fair, and we may have a good prudential reason not to confirm a person — an action that will harm him, but is not for the purpose of punishment — even if we do not have enough evidence to impose even an informal punishment for its own sake.
So I think the evidentiary bar is quite low, but to the extent possible I think it’s good to frame the justifications in terms of that he “might” have done this, not that we “believe” he has done this.
Of course I’m open to changing my evaluation in either direction if we learn something important at a hearing. But my guess is the hearing will not provide much additional clarity.
More broadly, I think we are excessively concerned about whether political processes are fair to the politicians we like, rather than whether they serve the public well. They are instruments, here to serve us.
Finally: one might worry a low implicit evidentiary standard this could produce an incentive for false accusations against other figures. If a spate of them ensues, maybe we’d have to adjust the standard. But I don’t think a lot of people want to be in Dr. Ford’s position.
