The Briefing

Documentation and Additional Reading

Part

The Atlantic

Kavanaugh Bears the Burden of Proof, by Benjamin Wittes

New York Times

The Burden of Proof for Kavanaugh, by Ross Douthat

Part

Wall Street Journal

The Presumption of Guilt, by Editorial Board

New York Times

This I Believe About Blasey v. Kavanaugh, by Brett Stephens

Part

Monday, September 24, 2018

Monday, Sept 24, 2018

Tags: #MeToo, Audio, Brett Kavanaugh

Transcript

This is a rush transcript. This copy may not be in its final form and may be updated.

It's Monday, September 24, 2018. I'm Albert Mohler and this is The Briefing, a daily analysis of news of events from a Christian worldview.

Part

How can a morally serious person weigh the claims being made against Brett Kavanaugh in his Supreme Court confirmation process?

How would a morally serious person, more pointedly, how would an intelligent, thoughtful Christian try even now to unpack all of the issues that seem to be tumbling out one after another in the confirmation process for Judge Brett Kavanaugh to be the next justice of the United States Supreme Court? How do we weigh relative claims? How do we understand what two different people are claiming about a singular event, or what's claimed to have been an event, now over three decades ago? How do we understand how to judge the political context? How do we understand what is produced this entire conversation which came at what was believed to have been the end, or very close to the end, of the confirmation process for Judge Kavanaugh? How do we understand all of these issues within the cauldron of the partisan poison that now so infects Washington and now seems to infect almost every dimension of America's life, especially in the public square, especially when it comes to the biggest issues in which Americans are divided including so many of the issues that inevitably arrive at the United States Supreme Court?

Now here's what we know or at least here's what we think we know as of yesterday. The chairman of the Senate Judiciary Committee, Senator Charles Grassley, announced that an agreement had been made with Christine Blasey Ford, the woman who has made the accusation of sexual assault against Judge Kavanaugh, to appear before the committee and to answer questions on Thursday. Now even the background to that announcement is extremely convoluted and in the current context it was excruciating politicized. So much so that the events that have taken place in the last several days now make it even more difficult for a morally serious or thoughtful person to try to understand exactly what moral issues are at stake and how they should be adjudicated.

You also have the realization that on Thursday Judge Kavanaugh, we are told, is going to have the same opportunity to answer the questions and to make his case, a case of absolute denial of sexual assault, before the Senate Judiciary Committee.

We also know that as of last night, another accuser, we are told, had come forward. But before we turn to that development we need to understand one of the most significant moral turns in this tale that took place just over the last few days. And one part of that was a column by Ross Douthat in Sunday's edition of the New York Times. But Douthat was answering another article that had appeared just shortly before at the Atlantic. That article was by Benjamin Wittes, who is editor in chief of Lawfare, he is also a senior fellow at the Brookings Institution. The headline of his article is not just a headline, it's an argument. It's an argument that demands our very close attention. The headline is this, "Kavanaugh Bears the Burden of Proof." The sub-head in the article, "The question isn't whether he can win confirmation, it's whether he can defend himself against the charge he faces in a manner that is both persuasive and honorable."

Now that's a very interesting assertion made in the title. It's also a very interesting sub-head that followed where we are told that the great challenge, according to Benjamin Wittes, that Brett Kavanaugh now faces is to defend himself in a manner that is, hear those words again, "Both persuasive and honorable."

What exactly would be persuasive? And how exactly should such an argument be made in a way that Wittes would recognize as honorable? And then consider the giant claim made in the headline itself that Brett Kavanaugh is the one who bears the burden of proof. Within the article Witte writes, "I have known Brett Kavanaugh for a long time in many different contexts. I am fond of him personally, I think the world of him intellectually. I don't believe he lied in his Senate testimony. I don't believe he's itching to get on the Supreme Court to protect Donald Trump from Robert Mueller. I am much less afraid of conservative judges," he wrote, "than are many of my liberal friends. As recently as a few days ago I was cheerfully vouching for Kavanaugh's character." Notice the next words, however, you can tell from the paragraph just written that a shoe was about to fall. Well, here if falls, "That said, the allegation against him is at the least, so far as one can tell from the press reports, credible and it deserves to be taken seriously."

Well, that's a sentence that deserves to be taken seriously and of course, when we're talking about sexual assault we're talking about one of the most serious allegations we could imagine. But what exactly does this sentence mean? Once again, "That said," he wrote, "the allegation against him is at least as, so far as one can tell from the press reports, credible."

Now you'll notice there was a clause there, "so far as one can tell from the press reports." And then there was a word, the word is "credible." He went on to say, "and it," meaning the accusation, "deserves to be taken seriously."

Well, when you look at the situation right now, it's clear that the word credible is being thrown around in a lot of ways that are not actually credible. What does the word "credible" mean? Here's something we really do need to focus on. In much of our cultural conversation, and even in dictionary definitions of the word credible, there isn't an affirmation of any absolute sense that a credible assertion or a credible claim is true. Rather, as the Cambridge dictionary indicates, credible means that it is able to be considered true. That is to say in the direct words of Cambridge dictionary, "It is able to be believed and/or trusted."

Well now we come to understand how the word credible perhaps means more, or maybe in some cases less, than many people intend or may hear in this controversy. For example, to say that a statement is credible means it is not incredible, that's the opposite of credible. It's not so far out of bounds that the circumstances are not imaginable, that it's not believable, if indeed other factors buttress that belief, that credibility. What would those other factors be? Well, the character of the one making the claim. The experience or authority of the one making the claim.

Credible simply means not incredible. Credible, of course, also means it's worthy of being taken seriously or in intellectual responsibility, we should state it stronger than that. It actually should be taken seriously. It deserves and demands to be taken seriously. This is where a morally serious Christian would have to understand that a charge of this importance, we're talking about the charge that Brett Kavanaugh sexually assaulted this woman when she was a girl of 15 and he was a boy, or young man, of 17. An allegation of this seriousness, an allegation that is considered to be credible, as this one is, it's credible not incredible, it demands that kind of serious attention.

But how in the world would Brett Kavanaugh make the argument that Mr. Wittes is calling upon him to make? How would he make it honorably as Wittes defines honorably. Wittes goes on to acknowledge the challenge, he says, "If Kavanaugh were to ask my advice today and to be clear, he hasn't done so, I would tell him he almost certainly should have his nomination withdrawn. The circumstances in which he should fight this out are, in my view, extremely limited."

Now Wittes goes on to suggest that if indeed Brett Kavanaugh were to survive the hearings and is to be confirmed at the Supreme Court, his tenure on the Court would be tainted. Tainted by what? Tainted by the allegation. But here's where Christians have to understand that the question that so many people now say we simply can't address is the one question that Christians know is inevitable, it's unavoidable. The question is this, did the allegation happen? Did the events happen? Is it as Christine Blasey Ford has claimed? Or is it as Judge Kavanaugh has claimed? These are irreconcilable claims as we think of the objectivity of truth and the actuality of events.

But of course as Christians we also understand in a fallen world just how fragile memory is, especially over time and especially when it comes to so many issues of such moral consequence. And at that point we come to understand that it is possible, according to the Christian worldview that both of these individuals are telling the truth, that is as in not lying, but are actually not telling the truth, one or both of them, as their memory may be susceptible to misunderstanding or confusion or reconstruction.

Wittes has effectively, in this article, put Brett Kavanaugh in an absolutely impossible position. Consider these words, "Though Kavanaugh has been careful not slime Ford, his denial of incident impugns her anyway, which is legitimate if his denial is accurate. It will not do, however, to impeach her credibility wrongly and then ask for confirmation to the highest court in the land because the false denial was not intentionally false. If the allegations are true," says Wittes, "Kavanaugh cannot be confirmed."

Well, that's an absolute swamp of argumentation. There is no way that any individual can meet the standards that this lawyer is demanding of Brett Kavanaugh. It's impossible and in effect it escapes the question, or tries to avoid it, as to whether or not the event took place.

When it comes to the burden of proof that Wittes says is upon Kavanaugh, he says that it's not the reasonable doubt standard that we have in the United States criminal law, it's not the preponderance of evidence that the United States has in civil courts. He says, when it comes to this claim, "There is no known standard of evidence applicable here." Well, that's a stunning admission. In other words, Wittes himself has no idea how to carry forward this process in a morally serious way.

In another section of his article, he says, "Putting it all together, Kavanaugh's task strikes me as an unenviable one," that's an understatement of course. Wittes continues, "He needs to prove a negative about events long ago with sufficient persuasiveness that a reasonable person will regard his service as untainted by the allegations against him and he needs to do so using only arguments that don't themselves taint him."

Notice that the claim by Kavanaugh, "I didn't do it," and "It didn't happen," has already been ruled out of bounds. Later in the article Wittes writes, "But if Kavanaugh cannot present such a defense, even if he truly believes himself innocent, even if he is innocent, (is in italics) the better part of valor is to get out now."

Well, at this point we have simply reached the end of any morally serious argument. This concession in the article in the Atlantic, which has had wide traction in American political circles over the last few days, comes down to the fact that even if Brett Kavanaugh is innocent, according to this argument, he cannot even make us believe that he is innocent without using tainted arguments that are not honorable, Wittes argues, and thus he is really not innocent of the arguments even if he is innocent of the originally alleged crime.

In yesterday's edition of the New York Times columnist Ross Douthat responded to Wittes, but Douthat basically also responded to his own earlier column just a few days before in which he came very close to calling upon Brett Kavanaugh to withdraw his own nomination.

In one of the early paragraphs in Douthat's article, he writes, "Even if Kavanaugh is innocent of the charge of a teenage sexual assault, I argued, to give such prominence and power to a man credibly accused would both leave an unnecessary taint on his future rulings and also," he said, "alienate social conservatives from the persuadable Americans, women especially, who support any pro-life program ultimately requires."

But here's the problem with that argument, if indeed Brett Kavanaugh is now tainted by an allegation and even if it's conceded the allegation might not be true, but because he is tainted he should not serve on the Court, we just need to note that anyone nominated to the Court or anyone, for that matter, who is promoted or set forth as a candidate for any kind of public office or public influence, can simply be immediately destroyed by a similar kind of allegation.

Once we, as a society, begin to accept that it really doesn't matter and it's beyond our consideration if an allegation is truthful, then we are just going to destroy one another with claim and counterclaim in which the only issue is the effect of the claim, not the truth of the claim.

Later in his article, Douthat writes, "But if Kavanaugh is actually innocent, there are really only two alternatives. Either Ford," that means Christine Blasey Ford, "is a brazen liar or some scenario of clouded or mistaken memory must be true. So," said Douthat, "to treat any version of the latter defense as simple confirmation of the nominee's villainy is to close even the narrow door that Wittes," Douthat says, "and I would leave open for Kavanaugh's potential exculpation."

Notice very carefully what Douthat is correcting here in Wittes' argument. He is saying that if the door is closed on Kavanaugh to concede that Christine Blasey Ford is not lying, but to argue that she none-the-less is not telling the truth, that is to say he's not accusing her of malice and simply inventing the charge, but he is saying that her memory is wrong, perhaps simply clouded by the years or for that matter, wrong in any respect. Well, Douthat makes the point that if Kavanaugh can't make that argument, he has no argument to make.

Putting all this into context, as of say mid-day on Sunday, it becomes very clear that morally serious Christians have to understand the sheer difficulty of trying to reconstruct the past. That's true if it's a matter of weeks or for that matter, months. It's another thing all together when you're talking about the passage of time of over 30 years. Going back to when adults in the prime of their professional lives were teenagers in high school.

There's enough in this picture that's disturbing and this is where Christians just have to be honest. The picture of this kind of testosterone addled high school, prep school, a very elite school for boys, and the kind of parties in which there was so much alcohol, there seems to be a general concession on the part of many of those who were teenagers then that the alcohol was flowing radically and freely and with very, very dangerous effect.

Christians looking at this entire picture must understand that we are looking at allegations, which if true would be devastating for anyone in public life or for that matter, for anyone at all. But especially for someone in public life because if indeed this kind of sexual assault took place, then Brett Kavanaugh was a sexual assaulter. He was an assailant and we're looking at something that reveals character, not just misjudgment and can't be excused by any kind of expose facto explanation. Other than it didn't happen.

At this point we need to recognize the tragedy of this circumstance far beyond the immediate question of the nomination or confirmation of Judge Kavanaugh. Over the past several decades, perhaps you could generalize throughout most of human history, it is almost undoubtedly true that society did not take with adequate moral seriousness the allegations of sexual misconduct that so many women made against so many men. That pattern was clearly wrong, it was directly in violation of our understanding of the biblical mandate of love of neighbor and also just basic respect for one another.

You don't have to know a great deal about human history to know that evil men have prayed upon women over and over again. And you know that it happens now. The MeToo movement is at least a reminder of the fact that there has been far too little attention paid, far too little heed paid to women when they cried out about this kind of misconduct.

Part

What does it mean to ‘believe women’ in the MeToo era?

But now we're looking at what in effect is a complete inversion of this picture. That was made very clear by Monica Hesse, a columnist for the Washington Post, when she wrote a column for that newspaper demanding that all right-minded people now will simply believe the woman, believe the women. She says that that is the only standard that makes any sense now. Every woman who makes such an allegation is to be believed. She goes so far as, well it's just straightforward to argue that all women who make these charges are to be believed and if we do not believe any part of the claim or if we do not believe any particular woman's claim then we are simply not believing the women.

Hesse seems to understand exactly what she's arguing here when she writes, "It's a test of whether in the past year we've learned anything at all. It's easier," she says, "to say you believe women when there are 60 of them and they're telling the same story about being drugged by Bill Cosby or assaulted by Harvey Weinstein. Can you say you believe women when there are only ten accusers? Only five? Can you say you believe women when there is one accuser and her account is 35 years old and she says she doesn't remember certain details like the address of the party?"

Even framing the issue that way, Hesse basically says the only moral, the only right thing to do is to believe her. Now she acknowledged the fact that there are some gaps in her story, indeed there are. The question as to whether there were four boys in the room or two boys in the room? There have been varying accounts ever since she first recovered this memory, we are told, in about 2012 or 2013. Exactly when did it happen? Well, that also appears to be very much a matter of her confusion and gap in the story.

But now we are being told, at least by some, that if there are gaps in the story it's simply because she hasn't remembered enough of what surely happened or she never would have made this claim. Now, of course a case can be made that this claim has been very costly to her. That's absolutely true, but it's also true that the involvement of attorneys and members of the opposing party who had already indicated they were going to vote against Brett Kavanaugh, well that has to be taken into consideration. And of course many of the arguments being made in the media are being made in combination with analysis in the very same paragraph saying, "Remember what's at stake in this nomination that Brett Kavanaugh would be the crucial fifth conservative Justice." You'll notice how quickly the issue shifts from the accusations made by Christine Blasey Ford to, "We've got to stop this nomination no matter what."

The editors of the Wall Street Journal, based upon where this situation stood at the end of the week, put out an editorial in the weekend edition entitled, "The Presumption of Guilt," which they described as "the new liberal standard which turns American due process upside down." The editor started out, and remember this was in a paper that was published on Saturday morning, they started out by saying that the only silver lining they see in this controversy is that the entire episode, they said, "is providing an education for Americans on the new liberal standard of legal and political due process."

Frankly, one of the most morally unserious persons in this story is Democratic Senator Mazie Hirono of Hawaii. In a statement about this situation, she said, "Not only do women like Dr. Ford, who bravely come forward, need to be heard, but they need to be believed. I believe her."

Holman Jenkins Jr. of the Wall Street Journal responded, "This is not the attitude of a responsible adult, let alone one whose job is making the factual determinations on which national policy is based. Your wishes," he chided the Senator, "don't make facts. A claim is not true because it comes from the mouth of a woman or false because it comes from the mouth of a man or vice versa."

Part

New allegations against Kavanaugh raise serious questions of credibility, motivation, and the knowability of truth

Intelligent and thoughtful Christians thinking with moral seriousness should also pay a very close attention to an argument made again in the New York Times, this one by columnist Bret Stephens, about how to understand when claims are made by people who are clearly outsiders, they weren't there back 35 years ago when the party took place, we are told. Bret Stephens warns that when either party says, "We believe x or y, we actually should be saying something else." In his words, "I believe that the statements on the controversy that began, I believe Blasey or I believe Kavanaugh because they jive with the personal experience or align with a partisan motive are empirically worthless and intellectually dishonest." Bret Stephens goes on to say, this is the important point, "I believe the defect could be corrected by saying I want to believe Blasey or I want to believe Kavanaugh."

This is where Christians, honest about the human intellect in a fallen world, have to affirm and never to deny that we understand that there is a want to in our believing. There is a want to, sometimes, in our disbelieving. Especially in this kind of partisan context in which the stakes are so high, we simply have to understand that those who want to see Judge Kavanaugh on the Court want to believe him. And those who do not want to see him on the Court want to believe his accuser.

Bret Stephens is exactly right. We must be very honest about what we know within ourselves, we want to believe. But wanting to believe doesn't make either of these claims true.

Stephens is also absolutely right when he tells us, "I believe human memory is imperfect. I believe it deteriorates over time. I believe most of us have had the experience of thinking we remember something clearly only to discover we got important details wrong." Bret Stephens then goes on, very importantly to concede that we now understand we are told by so many that when women remember this kind of traumatic event, the very trauma means that they are more likely to remember it rightly and more clearly. That's the claim that's being made by many who are now authorities in the MeToo movement and beyond.

But here is where Bret Stephens says there is a very crucial test to be watching for. The test is this, whether or not Christine Blasey Ford in the hearings on Thursday, if indeed she does appear as promised, can vividly recall what Bret Stephens identifies as the "unverifiable parts of her story, but not the ones that can be verified."

But then, as if this picture could not become more difficult and complicated, last night the New Yorker with a team of reporters Ronan Farrow and Jane Mayer released a story claiming that there is yet another woman. In this case, a woman who claims that Kavanaugh was engaged in sexual misbehavior when both were students, not in high school but at Yale.

The issues here are pretty graphic, but they have to do with exhibitionism and very crude sex play. The woman is Deborah Ramirez, who attended Yale with Kavanaugh. We are told, "Later she spent years working for an organization that supports victims of domestic violence."

But then listen to these words in the allegations, the new allegations made last night. "In her initial conversation with the New Yorker, she," meaning Deborah Ramirez, "was reluctant to characterize Kavanaugh's role in the alleged incident with certainty. After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party." And the details then continued.

Ramirez is now calling for the FBI to investigate Kavanaugh's role in the incident. She said, "I would think an FBI investigation would be warranted." But notice what's conceded here. It's conceded that the New Yorker was unable at first even to get her to positively be able to say that it was Brett Kavanaugh who was the individual in this alleged event. It took six days of her thinking about this before, after consulting with her attorney, also a rather complicated issue here, she decided, we are told, to go forward with her story at just the moment, we should note, that the democrats opposing Judge Kavanaugh were looking for the ability to claim a pattern. So that it wasn't just one woman making an accusation against Judge Kavanaugh from over three decades ago. This is a very convenient charge, coming so late. A late hit, we simply have to acknowledge it, that it has to be put in an explicitly political context.

It might be more than that, to be sure, but it certainly is not less than that. And in this article we see claims made that are simply not sourced like anything that would be parallel in the major journalistic endeavors and exposés of the MeToo movement.

The political and ideological context is acknowledged by the authors of the New Yorker report when they tell us, "Ramirez is a registered democrat, but said that her decision to speak out was not politically motivated." And regarding her views that she "works toward human rights, social justice, and social change."

Well, there can be no doubt that that's language about the fact that she opposed Judge Kavanaugh's appointment to the Court and she is now being cited by those who are trying to prevent the Judge from being confirmed to the Supreme Court as the next Justice.

You'll also note that she says that even as she is a democrat, her decision to speak out was not politically motivated. Here we simply have to say that doesn't exactly fit the context, but let's assume she's telling the truth. She may, on her own part, actually believe that. It might even be true of her own heart. It isn't true of the context in the media where the accusations have surfaced.

The article in the Atlantic indicates a similar kind of party atmosphere at Yale that we have now come to understand was taking place at Georgetown Prep, but it also includes statements by others in the same Yale generation who said things such as "I believe it could have happened."

In what morally serious universe could it be taken seriously this long thereafter, given the stakes we know we now face, that someone would simply say, "I believe it could have happened." Any number of things, of course, could have happened that didn't or did.

Christians do understand that everything does hinge on whether or not something did happen or didn't and whether we can know it or we can't. After that, the situation simply comes down to which individual we believe to be more credible. Maybe even Bret Stephens is right when he says, "Which one we want to be more credible."

Both sides do understand what is at stake, but this is where Christians have to understand that right now the very reality and knowability of truth is at stake. A society that gives up on the objectivity and the knowability of truth and the mandate of truth is a society bent on moral and intellectual suicide.

I could wish that on today's edition of The Briefing we had had time to turn to other issues, but honestly these issues now loom with such importance we dare not neglect them. This is one of those rare moments in human history when issues are being crystallized right before our eyes and right within the hearing of our ears.

Let's try to see, let's try to listen carefully as Christians.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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