Standard of Proof in Kavanaugh Nomination

Republican senators on the Judiciary Committee have argued that evidence of Judge Brett Kavanaugh's misconduct is uncorroborated and fails to meet the test of proof beyond a reasonable doubt. As a prosecutor, many of the cases I tried involved only a single eyewitness, the victim. Even in the absence of other corroborating evidence, if the jury found that witness credible and accepted the accuracy of her identification of a perpetrator, the verdict was guilty even applying the high bar of proof beyond a reasonable doubt.

Judge Kavanaugh's bid to become a Justice of the Supreme Court must be gauged by his fitness to serve, a far lesser standard than the one applied in criminal trials. If Dr.Ford is believed, as the senators profess, and her testimony is, indeed, persuasive and credible, the Senate must reject Brett Kavanaugh. That conclusion is buttressed by the intemperate, blatantly partisan and unjudicial tenor of his response.

Tenuous Tenure of Rod Rosenstein

Sean Hannity and other rightwing talking heads  have strongly counseled President Trump not to fall into a Democratic trap by firing Deputy Attorney General Rod Rosenstein at this time. The apparent concern of these "counselors" is that the discharge of Mr. Rosenstein, in and of itself, would adversely affect Republican chances of holding the House in the midterm election.

While I agree that the object of this advice is to safeguard Republican election prospects, I believe that the underlying fear of Hannity and the others is that firing Rosenstein now would force the hand of Special Counsel Robert Mueller. His release of a  report prior to the November election, for fear that a Rosenstein replacement would likely kill the investigation and block publication of the report, would, undoubtedly damage Republican candidates.

Leaks About Rosenstein

The NY Times has broken a story that is likely to result in the firing of Deputy Attorney General Rod Rosenstein and, thus, put at risk the completion of the investigation by Special Counsel Robert Mueller into obstruction of justice by President Donald Trump and collusion between the Trump administration and Russia to affect the 2016 election.

The sources of the NY Times story apparently are persons within the Justice Department and/or the FBI among whose number, undoubtedly, are Trump supporters. I submit that those persons have used the NY Times to advance an agenda that includes discrediting and ending the Mueller probe. That inference is supported by recent predictions made on air by rightwing Fox commentators that Rosenstein would soon be in deep trouble.

The leaked information may well be true, that Rosenstein questioned the president's competence, raised the possibility of invoking the 25th Amendment and considered recording his conversations with Trump. That does not justify its publication by the Times given the damage it likely will cause an investigation relied upon to expose the grave threat to our democracy and to hold accountable those responsible. Newspaper publishers in the past have distinguished themselves by refraining from printing news obviously harmful to national security. This was another such opportunity which, regrettably, has been lost.

How to Determine Whether Kavanaugh is Fit for Confirmation

A highly credentialed, professional woman has, reluctantly and out of a professed sense of civic duty, made serious allegations concerning the moral makeup and fitness for office of Supreme Court nominee, Brett Kavanaugh. Judge Kavanaugh has denied the accusation and multiple prior background checks have unearthed no evidence of wrongdoing. At least one senator, Hatch of Utah, has suggested that the accuser must be mistaken as to the identity of her assailant.

Many question how such a "he said, she said" issue can fairly be determined given the passage of time, the apparent absence of tangible evidence and the dearth of corroborating witnesses. In fact, it is not uncommon for investigators to confront this conundrum and there exists a standard protocol for attempting to arrive at the truth. The triers of fact must consider, among other factors, the following circumstances. 

Is the narrative of the victim credible, does it have the ring of truth? How well did the accuser know the accused? Whether a friend or a stranger obviously bears upon the victim's ability to recognize and identify the perpetrator. Was the condition of the young woman impaired in any way that might have affected her ability accurately to observe and remember? Does the accuser have any motive to be untruthful? Are there other persons who may have witnessed some part of the event and what do they recall? Do there exist any earlier accounts of the assault given by the accuser before it became politicized and were those accounts consistent with what is now alleged?

These are but a few of the avenues the senators should pursue in making the momentous judgment on whether to approve or reject the nomination of Brett Kavanaugh.